Opinion
Docket No. 1,731.
Decided March 28, 1968.
Appeal from Recorder's Court of Detroit; O'Hara (John P.), J. Submitted Division 1 December 5, 1967, at Detroit. (Docket No. 1,731.) Decided March 28, 1968.
Robert Mason and Thomas Harrison were convicted of burning a dwelling and preparing to burn a dwelling. Defendants appeal. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.
Edward L. Douglas, for defendants.
The defendants, Robert Mason and Thomas Harrison, appeal their conviction by a jury of burning a dwelling house and preparing to burn a dwelling house. They charge that the prosecutor committed reversible error when in his closing argument he referred to the defendant Mason as a "loan shark," and they allege that the verdict is against the great weight of the evidence. Further, they ask for a new trial on the basis of an affidavit by Helena Fambro, a prosecution witness, that she made untrue statements at the trial.
CL 1948, § 750.72 (Stat Ann 1962 Rev § 28.267).
CL 1948, § 750.77 (Stat Ann 1962 Rev § 28.272).
On Valentine's day, February 14, 1964, a fire, begun in the attic, severely damaged the dwelling house at 2244 West Boston boulevard in the city of Detroit. On a complaint by Nicholas Baublin of the arson squad of the Detroit fire department, issued after an investigation by the squad, the defendants were charged with preparing and setting the fire. According to testimony produced at trial, Robert Mason and Thomas Harrison, together with Doris Thomas, who resided at 2244 West Boston, agreed that they would set fire to the house. Doris Thomas testified that the defendant Thomas Harrison, a contractor, "told me that I had $17,000 insurance * * * and we could get a large amount if we set it afire."
Doris Thomas notified the insurer, by means of a mimeographed form provided and filled in by the defendant Mason, that Mason should be made a joint payee of the insurance proceeds. The insurer's check for $17,000, the maximum amount payable under the policy, was introduced as an exhibit at trial. It had been indorsed by Mason and deposited in his bank account. The defendant Harrison's contracting concern did the work to repair the damage done by the fire.
Mason paid $4,500 of the $17,000 proceeds to Doris Thomas. It was established that the reason Mason paid only that amount was that the balance was deducted as interest and principal on a loan owing by Doris Thomas to Mason. According to uncontroverted testimony, Mason had loaned money to Doris Thomas at "dollar for dollar" interest; that is, for each dollar Mason loaned Doris Thomas, she would promise to pay Mason two dollars.
It was to such transactions that the prosecutor referred when he said in his closing argument that the defendant Mason extracted from Doris Thomas a rate of interest "that would make a waterfront loan shark ashamed." The evidence of Robert Mason's transactions with Doris Thomas and of his financial involvement in this affair was admissible to show his motivation in perpetrating the crime that yielded the $17,000 of insurance proceeds Mason deposited in his bank account. Since the defendant Mason exercised his constitutional right not to take the stand, the prosecution could not introduce evidence for the purpose of attacking the defendant's character. But the prosecutor's characterization of Mason as a "loan shark" was a fair inference from the facts established and uncontroverted relating to his loaning operations, and argument of the prosecution commenting on evidence produced at trial is not grounds for reversal of a conviction unless the statement objected to is completely unwarranted by the evidence. People v. Peck (1907), 147 Mich. 84, 95; People v. DeBeaulieu (1944), 308 Mich. 173, 175. The label "loan shark" was hardly more prejudicial to the defendant Mason in the hearing of the jury than the bare and uncontroverted fact that he had charged one dollar of interest for one dollar loaned.
The defendants' allegation that the verdict is against the great weight of the evidence is without merit. The discrepancies in the record were resolved by the jury, whose job it was to see and hear the witnesses and weigh the credibility of what they said. The trial judge's instruction adequately described to the jury their job in weighing testimony, resolving inconsistencies, and making determinations of fact. A review of the record demonstrates to us that the evidence clearly supports their verdict.
Helena Fambro testified for the prosecution. She stated that the defendants asked her to serve as a decoy while the defendants, together with Doris Thomas, set the fire at 2244 West Boston on Valentine's night, 1964. Subsequent to trial, Miss Fambro swore to an affidavit stating that "she did give testimony against the defendants, Robert Mason and Thomas Harrison, which was not true; and that she makes this affidavit in order that justice may be done on behalf of the defendants."
On the basis of this affidavit, the defendants move for a new trial. But courts very carefully scrutinize recanting affidavits. People v. Andrews (1960), 360 Mich. 572. The affidavit these defendants present, entirely vague and lacking in specificity, cannot justify a new trial. A string of such recanting affidavits could obtain for a defendant a string of trials, and the prosecutorial process, made virtually endless, could effectively be defeated.
The general rule is that the granting of a new trial on the basis of a recanting affidavit lies within the sound discretion of the trial court. People v. Lowenstein (1944), 309 Mich. 94. Our decision here would not preclude the exercise of this discretion by the trial court on a delayed motion for new trial, in the event the defendants should present a sworn affidavit specifying the extent and materiality of the perjured testimony sufficiently to persuade the trial court that the interest of justice requires a new trial.
Affirmed.
FITZGERALD and McGREGOR, JJ., concurred.