People v. Bussell

184 N.W.2d 502, 28 Mich. App. 522, 384 Mich. 837, 1970 Mich. App. LEXIS 1219

• Court: Michigan Court of Appeals
• Decided: December 7, 1970
• Docket: Docket No. 8518
• Status: Published

Opinion

Per Curiam.

Defendant, in a jury trial, was found guilty of first-degree murder.¹ 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.

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 NE2d 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 US 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.

1 MCLA § 750.316 (Stat Ann 1954 Rev § 28.548).