People v. Droste

Brooke, J.

{after stating the facts). The first two assignments of error relate to the testimony of Barbara Miller, who was permitted to state with whom she had attended certain parties in 1907 and 1908, and to detail a conversation had with respondent in April, 1908, relative to deceased. She testified:

“ Benno had asked to take me home, and I told Joe on the way going home; Joe said if I knew what Benno said about me, I would never speak to him again.”

We are of opinion the testimony was competent as tending to show the relation then existing between respondent, deceased, and the witness, and as tending to disclose a possible motive for the commission of the crime.

Respondent next assigns error upon the admission by the trial court of the deposition of Lena Kraemer, widow of Nicholas Kraemer, taken upon the examination before the magistrate. It appears that on Saturday of the first week of the trial the prosecutor announced that Mrs. Kraemer was about to be confined and therefore could not attend and give her testimony. He then offered her testimony taken before the magistrate. Respondent’s counsel objected. Thereupon, the court suggested that she be examined at her home. To this proposition counsel for ■the people assented, but respondent’s counsel neither assented nor refused. Upon the following Monday the matter again came up, and again counsel for respondent did not consent to taking the testimony .at Mrs. Kraemer’s home. On Tuesday the deposition was again offered, «and, after a lengthy discussion, the court said:

“ As I said yesterday, the deposition will be received, but the other party will have the right, some time during the trial, to take her deposition if she is in such shape it can be.”

The deposition was then received. No motion was *74 made by respondent’s counsel for a continuance, and we think it is apparent from the record that he was not very anxious to subject the witness to further cross-examination, otherwise he would have consented to attend an examination of the witness at her home, as proposed by the court, and assented to by the prosecutor. The examination before the magistrate was taken stenographically, in the presence of respondent and his counsel. There was opportunity for full cross-examination, of which counsel for respondent availed himself.

The precise question here involved received consideration in the case of People v. Farrell, 146 Mich. 264 ( 109 N. W. 440 ), where this court said:

“One Fry was a witness for the prosecution upon the former trial. He was sick and confined to his bed during the progress of this trial. Near the close of the case for the prosecution the prosecutor announced that Mr. Fry was ill and unable to come to court. A recess was taken. After recess the physician was produced to show that Mr. Fry was unable on account of illness to attend court. Counsel for the defense waived the testimony of the physician. The sheriff was sent to bring the witness. He returned, announcing that he had a high fever and could not come. The testimony given upon the former trial was then read by the stenographer. This is urged as error. Counsel for respondent cite no authorities. The question does not appear to have arisen in this court. Upon proof of the death of a witness his former deposition may be read. People v. Sligh, 48 Mich. 54 ( 11 N. W. 782 ). Was its admission in violation of the rule that a respondent is entitled to be confronted with the witnesses against him ? He had been confronted with the witnesses and had had the opportunity of cross-examination. The exceptions to the rule are stated by Justice Cooley as follows:

“ ‘ If there were a former trial on which he [witness] was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane, or sick and unable to testify, or has been summoned but appears to have been kept away by the opposite party.’ Cooley on Constitutional Limitations (4th Ed.), p. 318.

*75 “ This rule comports with common sense, and we think the testimony was admissible.”

It is urged on behalf of respondent that, inasmuch as a difference of opinion arose among the justices as to another important question involved in that case, this point was not fully considered. We believe, after a careful examination of all the opinions written in that case, it can fairly be said, that upon the point in question there was no diversity of opinion. If this be true, the point has become stare decisis and should so remain, unless it can be shown upon principle or authority that a different rule should be adopted. The rule as here enunciated is not at variance with the decisions of this court in the cases of Howard v. Patrick, 38 Mich. 795 , and People v. Sligh, 48 Mich. 54 ( 11 N. W. 782 ), though certain language used in the latter case by Mr. Justice Campbell (not necessary for the determination of the matter there before the court) would seem to indicate that, had the court at that time been called upon to determine the question now here, it would have reached a different conclusion than that announced in the case of People v. Farrell, supra. The rule is not in harmony with the decision in the case of Sie fert v. Siefert, 123 Mich. 664 ( 82 N. W. 511 )—a civil case. There, Mr. Justice Grant, speaking for the court, said:

“ The only safe rule is that the illness must be of a permanent character. We think this is the rule sustained by the authorities.”

2 Wigmore on Evidence, § 1406, states the rule as follows:

“Any physical incapacity preventing attendance in court, except at the risk of serious pain or danger to the witness, should be a sufficient cause of unavailability; and this has been almost universally recognized by the courts.”

Many cases are cited, among them two involving the illness of a witness, similar to that under considera *76 tion here. Reg. v. Harney, 4 Cox Cr. Cas. 441; Reg. v. Stephenson, 9 Cox Cr. Cas. 156.

16 Cyc. p. 1101, states the rule to be:

“ Where, in a civil or criminal case, a witness since the former trial has become insane or bereft of memory by senility, his former evidence, as a rule, is admissible, although the witness himself is in court. * * * It has also been held in many cases that sickness which prevents, attendance as a witness, extreme age, or great bodily in-; firmity, suffice to admit the evidence, except in some juris-¡ dictions where, in criminal cases, nothing but death re-i lieves the prosecution from the necessity of producing the. original witness.”

This author (Wigmore) treats the subject exhaustively (volume 2, §§ 1395-1418), and concludes that the great weight of authority favors the admission of such evidence, as well in criminal cases as in civil cases, and where the illness is temporary only, as well as where it is permanent, or the witness has died. And upon principle, we are unable to appreciate any good reason why the people or respondent should have the benefit of such evidence, in cases where the witness is dead or permanently ill, and be •denied that benefit when the witness is only temporarily ill. In all three cases, the important fact is identical— the witness cannot be produced in person to testify before the jury. The case of Commonwealth v. McKenna, 158 Mass. 207 ( 33 N. E. 389 ), has been considered, as well as others of like character. In that State (Massachusetts), the courts have held rigidly to the doctrine that death alone would excuse the production of the witness, and permit the introduction of his testimony, taken at a former trial. This rule excludes the testimony of one permanently ill, as well as that of one temporarily ill, and is, as we believe, not supported by the weight of authority. ¡ The fact that this testimony was taken before the examin-i ing magistrate, instead of upon a former trial, does not change the rule. People v. Dowdigan, 67 Mich. 95 ( 38 N. W. 920 ); United States v. Macomb, Fed. Cas. No. 15, 702; United States v. Penn, Fed. Cas. No. 16,025. *77 Upon that hearing, the respondent was confronted with the witness and had, and availed himself of, full opportunity for cross-examination. We are of opinion that, by the admission of the testimony in question, the constitutional right of the respondent to be confronted with the witness against him was not abridged.

Clara Wirtz, a witness for the people, gave testimony as to what words she had heard on the night of the homicide. Upon cross-examination, her attention was called to a conversation, had between herself and a Mrs. Han-kins. She denied making certain statements to Mrs. Hankins, as to what she had heard. Mrs. Hankins was called by the respondent to impeach her. Error is assigned upon a ruling of the court, permitting the people to show, by Miss Wirtz, what she did say to Mrs. Hankins. The testimony was proper. See 2 Wigmore on Evidence, § 10445, where the author says:

“The impeached may always endeavor to explain away the effect of the supposed inconsistency, by relating whatever circumstances would naturally remove it” — citing many cases.

Error is assigned upon the action of the court, with reference to certain testimony given by Leo Cook and Philip Simmons. The court struck out the testimony in both instances, and in the second said to the jury:

“All of that testimony would be valueless, so it will not be deceived at all; it will not be given any consideration.”

Counsel for respondent urges that the error in receiving the testimony was not cured by the remarks of the court. If this claim can be sustained, we are at a loss to know how a trial could be properly conducted. It is manifest that the answer of a witness cannot be known until it is uttered. If, being incompetent, it ip then stricken out, the error is cured, or rather there is no error. It must be presumed that the jury considers only the testimony permitted by the court to stand. The case of *78 People v. Collins, 144 Mich. 121 ( 107 N. W. 1114 ), is distinguished. There this court said:

“ To argue, in the presence of the jury, the right to impeach, and to use in the argument alleged hypothetical statements covering the very facts claimed, by insinuation and by inference, to exist, is likely to have all of the effect obtainable from open contradiction and impeachment.”

No such situation exists in the case at bar. The testimony was offered in good faith; it lacked the necessary certainty, was stricken out, and the jury cautioned.

Many errors are assigned upon the charge of the court, particularly those portions thereof relating to:

(1) The presumption of innocence.

(2) Reasonable doubt.

(3) Burden of proof.

(4) Manslaughter.

(5) Self-defense.

We have examined the charge with great care, and find that most of it is couched in language which has heretofore received the stamp of approval from this court. The instructions were clearly correct upon the first three points.

Touching the fourth — manslaughter—it was claimed by respondent that the court should charge the jury that respondent was guilty of murder, in either the first or second degree, or he was innocent; citing People v. Repke, 103 Mich. 459 ( 61 N. W. 861 ); People v. Nunn, 120 Mich. 530 ( 79 N. W. 800 ); and People v. Owen, 154 Mich. 571 ( 118 N. W. 590 , 21 L. R. A. [N. S.] 520). The crime in each of these cases was committed in the presence of eyewitnesses. In the case at bar, the evidence is wholly circumstantial, and there is involved the question of respondent’s intoxication, whether the act was committed in the heat of passion, or in a sudden affray (indicated to some extent by the loud and angry language used by the assailant of deceased, at the time of the homicide). It will be remembered, too, that while respondent upon the stand denied that he had committed the assault, *79 there is no doubt that he and deceased were together in the churchyard, at the time it was committed, and while the loud and angry threats were uttered. There is evidence likewise tending to show some ill feeling between respondent and deceased, and trouble between them earlier in the evening. The jury, from all the facts of the case, may have concluded that respondent was alone with deceased at the time of the homicide, that he struck the fatal blow, but that, at the moment, his intoxication or passion was such as to rob his act of the necessary elements of murder, and we are of opinion that this view of the testimony was warranted. The trial court was clearly warranted in submitting the case to the jury on the theory of manslaughter, as well as that of murder. Baker v. People, 40 Mich. 411 ; People v. Hamilton, 76 Mich. 212 ( 42 N. W. 1131 ); People v. Wolf, 95 Mich. 625 ( 55 N. W. 357 ); People v. Palmer, 96 Mich. 580 ( 55 N. W. 994 ). See, also, State v. Magers, 35 Or. 520 ( 57 Pac. 197 ), and cases cited.

Upon the question of manslaughter, the court charged the jury as follows:

“ Manslaughter is the unlawful killing of another without malice, express or implied. The offense is one that is committed without malice or premeditation, the result of temporary excitement by which the control of the reason is disturbed, rather than from any wickedness of the heart or cruelty or recklessness of disposition. The general rule is that reason should, at the time of the act, be disturbed or obscured by passion, or an excitement of any cause, to an extent which might render ordinary men of fair, average disposition, liable to act rashly or without due deliberation or reflection, and from passion and lack of reason rather than from judgment.”

This language is taken from the decision in the well-considered case of Maher v. People, 10 Mich. 212 ( 81 Am. Dec. 781 ), the only interpolation being the words italicised, “ or an excitement of any cause.” This addition to the approved definition, had evident reference to the intoxicated condition of respondent, and was war *80 ranted by the facts in the case. And, in any event, it was a variation distinctly favorable to respondent, and, therefore, one of which he has no reason to complain.

It is urged that, the court having submitted the case to the jury upon the theory of manslaughter as well as murder,' it was his duty to have instructed the jury upon the question of self-defense. This would be true, and the authorities cited by respondent’s counsel would be pertinent, if respondent had admitted the homicide, but claimed he acted in self-defense. No such claim was made. Respondent’s theory was that the fatal blow was delivered by another than himself, and that he was wholly innocent. No request to charge upon the subject was preferred by the respondent, and under these facts of the case no instructions were necessary.

Other errors are assigned upon the charge of the court, all of which have been carefully considered, but we believe they are without merit.

The case was carefully tried, and was submitted to the jury under a charge which we think fully protected the right's of the respondent.

Error is assigned upon the refusal of the court to grant a new trial. Discussion of the affidavits filed thereon, and reasons urged, is unnecessary. It is sufficient to say that we are of opinion the motion was properly denied.

The conviction must be affirmed, and the court directed to proceed to sentence.

Hooker, Moore, McAlvay, and Blair, JJ., concurred.