People v. Oblaser

Hooker, J.

The respondent was convicted of the offense-of receiving stolen property, consisting of a revolver. The owner, a woman, left her house during the afternoon, the doors being locked. On her return she found her pocketbook upon the stand, and money that it had contained was gone. That evening she missed her revolver, *581 which had been kept in the stand drawer. She could not ¡say when she saw it last, but she and her husband testified to having seen it within a few days. Ten days later, the respondent was arrested, and a revolver was found under his pillow, which complainant identified as hers. The respondent told conflicting stories about it, one of them being that he procured it from a man whom he knew to have had it a year before, because he was with him when he bought it. He refused to give his name, and •advised the officer to arrest him for stealing the pistol if he thought best.

It is contended that this did not establish the larceny •of the pistol. We think the circumstances were sufficient to sustain a conviction by the jury. The case differs from that of People v. Montague, 71 Mich. 318 , as will be readily seen by an examination of that case.

On cross-examination, Mr. O’Neil was asked by respondent’s counsel if he did not testify upon the examination that he would not swear that the revolver found was the one lost, and that the marks on his were lower down. He admitted the latter, but denied making the former statement. He admitted being' sworn, and that the rewolver was shown him, and said that he corrected the ¡statement about the screw being lower down. Counsel for the respondent then said:

“1 will read your testimony. [Reading:] ‘Saw the revolver next when Downey [the officer] brought it to me. 'This is not the one.’

“ Q. Did you testify to that?

“A. No, sir.

“ Q. Is that your signature there to that testimony "taken in the court below? .

“A. That is my signature.

“Mr. Turner: I introduce this testimony and evidence •of the witness taken below. (Mr. Hunt objected, and ■cross-examination continued.)”

This was not the proper time-to offer this evidence for *582 the purpose of impeachment. It should have gone in, if at all, with the other impeaching testimony upon the same subject, after the respondent’s counsel took the case. It is unimportant, however, as the bill of exceptions fails to-show exception taken to its exclusion.

During the argument, the prosecuting attorney, referring to counsel for respondent, said:

“He says this man has as good a record as any one in. the court-room. Why don’t he show it?”

Nothing shows that evidence of good character was. given, and counsel for the respondent seems to have so-far forgotten himself as to make statements outside of the-record. Had the prosecutor replied by saying there was. no evidence that he had a good record, no fault could have been found. This was but another way of saying it» It was plainly invited.

The judgment must be affirmed.

The other Justices concurred.