People v. Breen

Ostrander, J.

(after stating the facts). 1. Technically, the question asked the witness Mueller was objectionable in assuming that he was guilty of or believed or supposed he was suspected of having committed crimes other than those he had himself referred to. The purpose of the question, i. e., to learn his attitude toward the police, and perhaps to show that he had a motive in assisting the police and in securing the conviction of respondents, was a proper one. In my opinion, the obvious purpose of the question was accomplished, considering the answer which was given, with the admissions of criminal conduct which the witness made.

2. Respondent Breen was not required to give testimony against himself because his shoes were used in the manner above stated.

3. It is plain that the testimony with respect to preserving the footprints which the shoes fitted is not incompetent.

4. The testimony relating to the overcoat was introduced in reply to testimony that the respondent never wore the coat. Without an exception, the point is not properly before us. But the prosecuting attorney could not have anticipated that the testimony would be important.

5. What was said in the opinion in Heddle v. Railway Co., 112 Mich. 547, 551 ( 70 N. W. 1096, 1098 ), answers, I think, the objections based upon the failure *44 to instruct the jury as requested by respondents. It was there said:

“We think it was not the absolute right of defendant to have the request given in the exact language employed. It is the province of the jury to determine ultimately the credit to be given to a witness who has knowingly falsified or exaggerated as to certain facts. Whether the entire testimony of the witness is to be excluded depends upon the consideration of other questions, among which is that of whether the testimony is or is not corroborated by other witnesses. Knowles v. People, 15 Mich. 408 ; O’Rourke v. O’Rourke, 43 Mich. 61 ( 4 N. W. 531 ); Cole v. Railway Co., 95 Mich. 80 ( 54 N. W. 638 ). The request omits any reference to the question of corroboration by other witnesses, although the testimony of the plaintiff as to the manner of the accident was fully corroborated. Furthermore, the better practice is for the court to frame instructions in such manner as not to imply a fixed opinion of his own, upon the question either of the truthfulness of the challenged statements or of the credit to be given to other portions of the testimony. Fraser v. Haggerty, 86 Mich. 530 ( 49 N. W. 616 ) ; Argabright v. State, 49 Neb. 760 ( 69 N. W. 102 ); 2 Thomp. Trials, § 2423. And although we do not hold that it is error to call attention to the testimony of a particular witness, and to give cautionary instructions framed in such language as to be in all other respects unobjectionable, we do not think that it is the right of either party to insist that this course be taken. In the present case, the court laid down general rules for the guidance of the jury in weighing testimony, which we think were sufficiently clear not to be misapprehended.”

As a whole, the charge was exceptionally fair to respondents. I think no reversible error is pointed out.

Affirmed.

Stone, C. J., and Kuhn, Bird, Moore, Steere,Brooke, and Person, JJ., concurred.