I do not agree with Mr. Justice WIEST that the record presents reversible error.
I agree that the question asked of witness Miller, quoted by Mr. Justice WIEST, should not have been propounded. Miller's testimony was not so important as to justify the people in hazarding possible arousal of racial prejudice and consequent reversible error. But the question was competent as a prior inconsistent statement of the witness, as is made apparent by its setting.
An important issue was whether a fire would have profited defendants. There was considerable evidence that the business was a losing venture, with little hope of success. Miller was chief engineer, and the general effect of his testimony was that defendants were particularly zealous in guarding against fire, and that prospects for the plant were favorable.
The question was in direct impeachment of Miller's claim. Miller had left the employ of defendants about January 1st and claimed it was to better his condition, not because of depressed condition of the business. In December he had given another engineer, DeFields, a letter of recommendation to obtain a new position. On cross-examination he testified:
"I do not remember that I told Alex DeFields shortly before I left the St. Joseph Board Paper Company that things were getting in such bad shape that he had better look around and get himself a new job. I might have told Alex DeFields I was looking for another job. I know he came to South Bend with me later. I do not remember that I gave him a letter of recommendation but if he asked me for one I certainly did.
"Q. I ask you to read Exhibit 30.
"A. Yes, sir, I wrote that letter. It was a letter of recommendation for Alex DeFields.
"Q. You used this remark did you not? 'He leaves the employ of this company through no fault of his, but due to business depression.' That is correct?
"A. Yes, sir, that was temporarily a business depression. The latter part of the time I was there I took care of the mill at night to keep it from freezing up.
"Q. At about the time you gave Alex DeFields this letter didn't you say to him in substance and effect 'Hurwich or these people (referring to the St. Joseph Board Paper Company) are going to go broke,' and that 'two bankruptcies and a fire is a Jewish fortune.' Did you use that language?
"A. No, sir."
The scope of cross-examination is largely within the discretion of the court, the record does not indicate that the question was asked in bad faith nor that it affected the verdict, and, as the question was competent, it cannot be held reversible error.
I agree with Mr. Justice WIEST that the court may order a new trial in a felony case after the time within which the defendant may move for a new trial as a matter of right, under 3 Comp. Laws 1929, § 17356. Nichols v. Houghton Circuit Judge,185 Mich. 654 (Ann. Cas. 1917D, 100), construed 3 Comp. Laws 1915, § 15836, which reads:
"The court in which the trial of any indictment shall be had, may, at the same term, or at the next term thereafter, on themotion in writing of the defendant, grant a new trial, for any cause, for which by law a new trial may be granted, or when it shall appear to the court that justice has not been done, and on such terms or conditions as the court shall direct."
The section was adopted verbatim into the code of criminal procedure, 3 Comp. Laws 1929, § 17355, with the italicized words eliminated.
The next section (section 17356) provides:
"Motions for new trials shall be made within thirty days after verdict, and not afterward."
In so modifying and dividing the provisions for new trial, the legislature undoubtedly had in mind the Nichols Case and intended to confer on the court the power to order new trial without limitation of time. This construction is emphasized by the fact that in the next section the limitation of time refers only to motions for new trial and has no reference to the power of the court.
The showing on the check incident is not sufficient to justify the court in ordering a new trial. The importance of the check lies in the time of its delivery. The people's case of conspiracy rests upon the claim that, on Saturday, January 28th, the check was given by Hurwich to Furkas for pay roll, in lieu of Hurwich signing individual pay checks prepared by Furkas. Now that the existence of the check is admitted, its date, January 26th, is of consequence only as bearing upon the time of delivery. The testimony is undisputed that Furkas made out the individual pay roll checks on January 27th, and it is not now denied that Furkas cashed Hurwich's check at a store Saturday afternoon, the 28th, after the bank had closed for the day. The inference is that Hurwich gave Furkas the check after Furkas had prepared the pay roll checks and too late on Saturday to enable Furkas to get it cashed at the bank.
The prosecuting officers had the check in their possession only a few minutes, and sent it back to be returned to Hurwich's files. The evidence that the check was destroyed rested upon Furkas's affidavit that Miss Kinnamon told him she had destroyed it, and upon her failure to mention the check in her
affidavit. Hurwich does not depose that it was destroyed or that he does not have it. In any event, the fact that the prosecuting officers had it in their possession a few minutes did not prevent Hurwich from offering it in evidence if he had it or offering to prove it as a destroyed check. Had he shown any indication at the trial to offer it, either by actual production or claim it was lost, and had the people opposed the offer or quibbled about the existence of the check or its date, the situation would have been very much different.
But the record does not show that the theft of the check and its destruction, if it was destroyed, hindered defendants in their defense. The record demonstrates that defendants knew the value of evidence and were diligent in procuring it. Hurwich produced many letters, books, and checks; ledger sheets of Hurwich Iron Company, showing expenditures for the St. Joseph Board Paper Company, the corporation owning the buildings burned; his own ledger sheets showing all of his personal contributions to the corporation; many checks of his payments for pay rolls and bills before and after the fire; and check stubs of Hurwich Iron Company to show that no check was drawn to Furkas on January 28th. He did not produce his own personal check book stubs. The stubs of a well-kept check book usually will disclose whether a check has been written out of order as to date. He had the check in his possession for many months, and it was not until the trial was well under way that it was purloined. It is straining credulity too far to assume or imagine that Hurwich did not know the fact and date of the personal check he gave to Furkas for the pay roll and its importance as evidence. At no time during the trial did he offer to introduce it or claim
it was lost or destroyed. His testimony regarding the pay roll, the whole of which follows, can hardly be taken otherwise than as demonstration of his deliberate intention not to produce the check or stubs.
"On January 28, 1928, I think I had a personal bank account in South Bend besides the Hurwich Iron Company account.
"Q. And as an actual matter of fact, the check you gave Furkas was on the personal account, was it not?
"A. What check?
"Q.
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I do not agree with Mr. Justice WIEST that the record presents reversible error.
I agree that the question asked of witness Miller, quoted by Mr. Justice WIEST, should not have been propounded. Miller's testimony was not so important as to justify the people in hazarding possible arousal of racial prejudice and consequent reversible error. But the question was competent as a prior inconsistent statement of the witness, as is made apparent by its setting.
An important issue was whether a fire would have profited defendants. There was considerable evidence that the business was a losing venture, with little hope of success. Miller was chief engineer, and the general effect of his testimony was that defendants were particularly zealous in guarding against fire, and that prospects for the plant were favorable.
The question was in direct impeachment of Miller's claim. Miller had left the employ of defendants about January 1st and claimed it was to better his condition, not because of depressed condition of the business. In December he had given another engineer, DeFields, a letter of recommendation to obtain a new position. On cross-examination he testified:
"I do not remember that I told Alex DeFields shortly before I left the St. Joseph Board Paper Company that things were getting in such bad shape that he had better look around and get himself a new job. I might have told Alex DeFields I was looking for another job. I know he came to South Bend with me later. I do not remember that I gave him a letter of recommendation but if he asked me for one I certainly did.
"Q. I ask you to read Exhibit 30.
"A. Yes, sir, I wrote that letter. It was a letter of recommendation for Alex DeFields.
"Q. You used this remark did you not? 'He leaves the employ of this company through no fault of his, but due to business depression.' That is correct?
"A. Yes, sir, that was temporarily a business depression. The latter part of the time I was there I took care of the mill at night to keep it from freezing up.
"Q. At about the time you gave Alex DeFields this letter didn't you say to him in substance and effect 'Hurwich or these people (referring to the St. Joseph Board Paper Company) are going to go broke,' and that 'two bankruptcies and a fire is a Jewish fortune.' Did you use that language?
"A. No, sir."
The scope of cross-examination is largely within the discretion of the court, the record does not indicate that the question was asked in bad faith nor that it affected the verdict, and, as the question was competent, it cannot be held reversible error.
I agree with Mr. Justice WIEST that the court may order a new trial in a felony case after the time within which the defendant may move for a new trial as a matter of right, under 3 Comp. Laws 1929, § 17356. Nichols v. Houghton Circuit Judge,185 Mich. 654 (Ann. Cas. 1917D, 100), construed 3 Comp. Laws 1915, § 15836, which reads:
"The court in which the trial of any indictment shall be had, may, at the same term, or at the next term thereafter, on themotion in writing of the defendant, grant a new trial, for any cause, for which by law a new trial may be granted, or when it shall appear to the court that justice has not been done, and on such terms or conditions as the court shall direct."
The section was adopted verbatim into the code of criminal procedure, 3 Comp. Laws 1929, § 17355, with the italicized words eliminated.
The next section (section 17356) provides:
"Motions for new trials shall be made within thirty days after verdict, and not afterward."
In so modifying and dividing the provisions for new trial, the legislature undoubtedly had in mind the Nichols Case and intended to confer on the court the power to order new trial without limitation of time. This construction is emphasized by the fact that in the next section the limitation of time refers only to motions for new trial and has no reference to the power of the court.
The showing on the check incident is not sufficient to justify the court in ordering a new trial. The importance of the check lies in the time of its delivery. The people's case of conspiracy rests upon the claim that, on Saturday, January 28th, the check was given by Hurwich to Furkas for pay roll, in lieu of Hurwich signing individual pay checks prepared by Furkas. Now that the existence of the check is admitted, its date, January 26th, is of consequence only as bearing upon the time of delivery. The testimony is undisputed that Furkas made out the individual pay roll checks on January 27th, and it is not now denied that Furkas cashed Hurwich's check at a store Saturday afternoon, the 28th, after the bank had closed for the day. The inference is that Hurwich gave Furkas the check after Furkas had prepared the pay roll checks and too late on Saturday to enable Furkas to get it cashed at the bank.
The prosecuting officers had the check in their possession only a few minutes, and sent it back to be returned to Hurwich's files. The evidence that the check was destroyed rested upon Furkas's affidavit that Miss Kinnamon told him she had destroyed it, and upon her failure to mention the check in her
affidavit. Hurwich does not depose that it was destroyed or that he does not have it. In any event, the fact that the prosecuting officers had it in their possession a few minutes did not prevent Hurwich from offering it in evidence if he had it or offering to prove it as a destroyed check. Had he shown any indication at the trial to offer it, either by actual production or claim it was lost, and had the people opposed the offer or quibbled about the existence of the check or its date, the situation would have been very much different.
But the record does not show that the theft of the check and its destruction, if it was destroyed, hindered defendants in their defense. The record demonstrates that defendants knew the value of evidence and were diligent in procuring it. Hurwich produced many letters, books, and checks; ledger sheets of Hurwich Iron Company, showing expenditures for the St. Joseph Board Paper Company, the corporation owning the buildings burned; his own ledger sheets showing all of his personal contributions to the corporation; many checks of his payments for pay rolls and bills before and after the fire; and check stubs of Hurwich Iron Company to show that no check was drawn to Furkas on January 28th. He did not produce his own personal check book stubs. The stubs of a well-kept check book usually will disclose whether a check has been written out of order as to date. He had the check in his possession for many months, and it was not until the trial was well under way that it was purloined. It is straining credulity too far to assume or imagine that Hurwich did not know the fact and date of the personal check he gave to Furkas for the pay roll and its importance as evidence. At no time during the trial did he offer to introduce it or claim
it was lost or destroyed. His testimony regarding the pay roll, the whole of which follows, can hardly be taken otherwise than as demonstration of his deliberate intention not to produce the check or stubs.
"On January 28, 1928, I think I had a personal bank account in South Bend besides the Hurwich Iron Company account.
"Q. And as an actual matter of fact, the check you gave Furkas was on the personal account, was it not?
"A. What check?
"Q. The check you gave Furkas was on your personal account?
"A. I don't know what check you are talking about.
"Q. Well, how was the pay roll met for the week that ended January 28th?
"A. I don't know.
"Q. You don't know?
"A. No, sir.
"Mr. Nicely and I were paying the pay roll at that time. I don't remember whether or not I paid it that week. I would say that I did pay it. So far as I know it was paid.
"Q. And if it was paid, the money came from you and Mr. Nicely, no question about that?
"A. It might have come from the bank. If it came from the bank that would be the money of the St. Joseph Board Paper Company. It would be the money we put up for the St. Joseph Board Paper Company.
"Q. Have you got all your personal check stubs and personal checks for that week in January, 1928?
"A. I have not.
"Q. So you don't know whether it is among them or not?
"Q. But you brought up one here you wrote it wasn't among, namely, the stubs of the Hurwich Iron Company?
"(No answer.)"
The prosecuting attorney, having ordered return of the check to Hurwich, having no reason to believe that it had not been returned, having no intimation that Hurwich desired to introduce it in evidence, and having challenged the attention of the defense to the failure to produce Hurwich's personal check stubs after it had produced the check stubs of Hurwich Iron Company, was justified in assuming that the failure to produce the stubs and check was intentional and to make the argument upon that basis. No objection was made to the argument or request to charge upon it. Therefore, error cannot be assigned upon it, and it is to be considered only as a circumstance in moving the discretion of the court upon motion for new trial.
Passing to the motion for new trial, we fail to find an affidavit from Hurwich that he gave Furkas the check on January 26th, or an offer to show by check stub or otherwise that the check was not misdated or any claim that he cannot now produce the check or stubs. The only evidence defendants now offer to show delivery of the check on January 26th, to overcome the prior testimony and strong circumstances indicating delivery on the 28th, is the affidavit of Furkas.
It would be an abuse of discretion to grant a new trial upon the affidavit of a confessed perjurer, whose retraction of his testimony was "without honest purpose" (People v. Furkas,255 Mich. 533, 535), when it seems plain that, at the trial, Hurwich intentionally concealed the facts regarding the check
and now, presumably having in his possession physical evidence of the date of its delivery, fails to present it to the court or offer to do so, or to deny that he is able to present it, and even fails to allege on oath that the check was not delivered on the date claimed by the people.
Judgment is affirmed.
CLARK, C.J., and POTTER, SHARPE, and NORTH, JJ., concurred with FEAD, J.