Opinion
Docket No. 119, Calendar No. 40,381.
Submitted June 15, 1939.
Decided September 5, 1939.
Appeal from Recorder's Court for the City of Detroit; Jeffries (Edward J.), J. Submitted June 15, 1939. (Docket No. 119, Calendar No. 40,381.) Decided September 5, 1939.
Edgar Neal was convicted of felonious assault. Reversed and new trial granted.
N. George Bashara, for appellant.
Thomas Read, Attorney General, Duncan C. McCrea, Prosecuting Attorney, and William L. Brunner and Allen J. Asam, Assistant Prosecuting Attorneys, for the people.
Charged with assault upon his wife, with intent to kill and murder, defendant, upon trial by jury, was convicted of felonious assault. Defendant for some years was a member of the Detroit police department, starting as a patrolman and later promoted to detective, police bureau of censors. He resigned from the police department in 1937. He married in March, 1936, and there is one child. His wife was a former chorus girl and dancer. After he resigned from the police force he went to New York city for a time. The morning of July 27, 1938, he returned to Detroit and, upon being informed by his wife that she wanted a divorce, he deliberately started out to get drunk, claims he succeeded, and wakened in the prisoner's ward in Receiving Hospital with a long cut on his scalp.
The evening of July 27, 1938, his wife was engaged in singing at a restaurant, and the prosecution claims that in the course of the evening defendant came there and, while having a talk with his wife shortly after midnight, slapped her and, upon her screaming and running away from him, he pulled out his revolver, pointed it at his wife, but was seized by others, and in the scuffle two shots were fired.
Defendant prosecutes review by appeal.
In the motion for a new trial it was claimed that the prosecutor failed to indorse a res gestæ witness. By counter showing such a witness was not known to the prosecution. In the motion for new trial defendant claimed newly discovered evidence but it appears that it was alleged contradictory statements made by witnesses at the trial.
The trial commenced in the morning, probably at the opening of court; the jury was impaneled, proofs in behalf of the prosecution taken, defendant examined as a witness in his own behalf, and, near the hour of the noon recess, counsel for defendant announced:
"Your honor, that constitutes the defense with the exception of a couple of character witnesses we had coming in here at two o'clock. I didn't know what the court wanted to do. We will be all finished with that, and it will be very brief testimony.
" The Court: Have you any more testimony now?
" Mr. Fitzgerald: No, no more now.
" The Court: Do you rest?
" Mr. Fitzgerald: Well, we will rest after this character testimony.
" The Court: Well, they should be here.
" Mr. Fitzgerald: If the court please, I didn't know what schedule we were working on.
" The Court: You knew what court you were going to be in, didn't you?
" Mr. Fitzgerald: That is true, your honor, and I warned them of that because I knew from experience —
" The Court: I am glad you knew something about
" Mr. Fitzgerald: But Mrs. Potter was coming down and a Mrs. Goodwin. They are housewives and I think one is quite elderly. It isn't the easiest thing in the world to maneuver around with them. I had no idea, as a matter of fact, we were going to get through with this case as fast as we did. Of course, with the co-operation of counsel, the court has pushed it right along.
" The Court: Well, I am ready to go. I thought we would run here until about two o'clock.
" Mr. Fitzgerald: I can have these witnesses the first thing in the morning.
" The Court: I would like to have you make your arguments this afternoon.
" Mr. Fitzgerald: I see what you mean. I don't know what to do.
" The Court: You have Mrs. Potter?
" Mr. Fitzgerald: Mrs. Potter, Mrs. Rutledge and another woman.
" The Court: To testify to this man's good character?
" Mr. Fitzgerald: That is right.
" The Court: You will admit that, won't you?
" Mr. Asam: That he is of good character — that he was?
" The Court: Of course, the law presumes the man is regular.
" Mr. Fitzgerald: The character testimony would be in regard to general reputation for truth and veracity and honesty and integrity and for being a peaceful and law-abiding citizen.
" Mr. Asam: So far as I know, that is true.
" The Court: That is what the law presumes.
" Mr. Asam: The law presumes that.
" Mr. Fitzgerald: The only thing we want is the benefit of character testimony in the charge. That is my only reason.
" The Court: I will give you —
" Mr. Fitzgerald: That will help the situation.
" The Court: I will give you all the comfort on that you are entitled to. Well, how much time do you want to argue?"
The record shows the closing arguments were then made, whereupon an adjournment was taken until 9:30 o'clock the next morning, at which time the court instructed the jury, therein stating:
"There was some question here yesterday with reference to character witnesses. Now, the law presumes that everybody is regular. You know the Anglo-Saxon theory and outlook of mankind is that everybody is decent and honest, and he who makes a charge against another must prove it. That gives us a tremendous advantage over some of the gentlemen across the water because we have a decent and fair outlook upon mankind and that gives us a much better and greater grasp of the cooperative efforts of mankind. We do not go around with chips on our shoulders and we do not go around with the suspicion that everybody is bad. We have in this country what is called under our law the presumption of innocence and we presume that every man is regular until proven guilty of an offense.
"The question of reputation is important many times, and in addition to the presumption of innocence the defendant has a right to introduce testimony with reference to good character. Counsel has already stated it was understood that testimony would be allowed in. Testimony as to character may be introduced in any controversy to aid you in determining who is telling the truth and the probability of regularity and truthfulness."
Defendant claims that the conduct of the trial judge during the course of the trial, in making remarks and censuring counsel, prejudiced the jury against defendant; that the court was in error in not affording defendant a reasonable opportunity to have his character witnesses present, and the instructions to the jury did not accord defendant the benefit he would have had under testimony of character witnesses.
The presumption of innocence of an accused does not include good character.
"There is no presumption in a criminal case that the accused is of good character." Greer v. United States (syllabus), 245 U.S. 559 ( 38 Sup. Ct. 209).
An accused may make his character an issue by introduction of testimony and, in a case involving moral turpitude, such an issue may have considerable bearing upon the accusation. The right to present such an issue is valuable and wholly apart from the presumption of innocence accorded by law.
The trial judge appears not to have considered the presumption of innocence and evidence of good character as serving separately in behalf of the accused.
The presumption of innocence requires the prosecution to introduce evidence establishing the guilt of an accused beyond a reasonable doubt. The evidence of character alone may cause a reasonable doubt. We think the court was in error in not affording defendant a reasonable opportunity during the usual noon recess to have his character witnesses present, and this error was not corrected by concession of the prosecution nor by the instruction to the jury.
Defendant testified that after drinking — "I don't remember another thing, then, that happened to me. I do not remember leaving the house and going to the Blue Lantern. I don't remember singing."
Whereupon the court interjected the query:
"Remember whether you kept in tune with the orchestra or not?"
The judge may have thought his query facetious and the jury have taken it as indicative of skepticism on his part. In any event the query was a gratuitous insult to the witness. Pert remarks and quips from the bench have no place in the trial of a criminal case, do not comport with judicial dignity and the injurious effect of such, though thoughtlessly uttered, may prove exceedingly damaging to the party entitled to a fair trial.
The accused had a right to be represented by an attorney and have the attorney treated with the consideration due such an officer of the court and belittling observations aimed at the attorney are, necessarily, injurious to the one he represents. Having the prosecutor concede the presumption fixed by law and compelling the accused to accept that in lieu of evidence of character deprived the accused of a substantial right which must be recognized.
An examination of the record leads to the conclusion that defendant has not had a fair trial.
The conviction is reversed and a new trial granted.
BUTZEL, C.J., and BUSHNELL, SHARPE, POTTER, CHANDLER, NORTH, and McALLISTER, JJ., concurred.