Opinion
Docket No. 8518.
Decided December 7, 1970. Leave to appeal denied May 7, 1971. 384 Mich. 837.
Appeal from Monroe, William J. Weipert, Jr., J. Submitted Division 2 October 13, 1970, at Detroit. (Docket No. 8518.) Decided December 7, 1970. Leave to appeal denied May 7, 1971. 384 Mich. 837.
Mary Alice Bussell was convicted of first-degree murder. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Rostash, Prosecuting Attorney, and John J. Sullivan, Chief Assistant Prosecuting Attorney, for the people.
Krawetz Teague, for defendant on appeal.
Defendant, in a jury trial, was found guilty of first-degree murder. On June 15, 1968, there was an argument between the deceased and his wife. Defendant, the deceased's mother-in-law, was seen by witnesses on the porch of her home immediately after the shots were heard holding a gun in her hand.
MCLA § 750.316 (Stat Ann 1954 Rev § 28.548).
Defendant raises four issues on appeal. During cross-examination the prosecutor asked defendant:
"Have you on various occasions shortly before June 15, of this year told your husband that because of the way Mose had been treating Bessie, that you felt like shooting him?" Defense counsel immediately objected but the question was allowed. The answer was in the negative.
This question was improper under MCLA § 600.2162 (Stat Ann 1962 Rev § 27A.2162), which states that neither husband nor wife shall be examined as to any communications made by one to the other during the marriage. Nor was it proper under the prosecutor's theory that it is allowable on cross-examination. People v. Salisbury (1922), 218 Mich. 529.
Defendant relies heavily on People v. Ignofo (1946), 315 Mich. 626, for authority that this was reversible error. However, People v. David Smith (1969), 16 Mich. App. 198, 201, states:
"This Court therefore holds that the rule in Ignofo is subject to the miscarriage of justice rule in CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096)."
The negative answer of the witness cured any error, People v. Bark (1930), 251 Mich. 228; People v. Somerville (1967), 88 Ill. App.2d 212 ( 232 N.E.2d 115), and, further, the trial court instructed the jury that questions by the prosecutor were not to be considered as evidence. There was no miscarriage of justice within the meaning of the statute.
Defendant next questions the admissibility of statements admitting the murder made by her at the time of the crime. The record is clear that defendant made identical admissions before and after being given her warnings pursuant to Miranda v. Arizona (1966), 384 U.S. 436 ( 86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974). Therefore, there was no error in allowing this testimony as to defendant's admissions.
Defendant also claims that statements in the prosecutor's opening statement and closing argument were inflammatory and prejudicial to her case In his opening statement the prosecuting attorney stated that he would offer testimony of a police officer, which testimony was subsequently excluded at trial. There having been no motion by defendant to suppress this testimony, the opening statement was entirely reasonable. People v. Glessner (1969), 19 Mich. App. 535. The statements made by the prosecutor in closing argument, attacking the credibility of a defense witness, had foundation in the impeachment testimony of one of the police officers. Credibility is a question for the jury. People v. Morris (1968), 12 Mich. App. 411; People v. Beck (1969), 17 Mich. App. 659.
Affirmed.