People v. Murray

17 N.W. 843, 52 Mich. 288, 1883 Mich. LEXIS 492

• Court: Michigan Supreme Court
• Decided: December 21, 1883
• Status: Published

Opinions

Cooley, J.

The respondent stands convicted of the murder of one Emery at Chesaning. The homicide took place while a circus was on exhibition at that place. I shall notice in this case only such errors assigned as, after the full presentation of the facts by Mr. Justice Sherwood, seem essential.

A chief ground of error relied upon is that the prosecution was allowed to put in evidence certain depositions taken out of court of witnesses not present at the trial. The facts seem to be that the attorneys for the respective parties stipulated to put in certain depositions on both sides, and they were put in accordingly. This, it is said, was in violation of the respondent’s constitutional right to be confronted with his witnesses. But the court made no ruling in the matter; what was done was voluntarily done by the parties; the defendant had the benefit of the stipulation, and, for aught we can know, it may have been made chiefly in his interest. But however that may be, when the court has made no ruling we can have nothing to review. This Court cannot relieve a party from a criminal conviction because of his own voluntary action on the trial.

It is said the counsel for respondent was counsel assigned to him by the court and may not have been counsel of his choice. "We do not know how the fact was, but we know it is customary to allow the respondent to choose for himself. But however that may be, the counsel acted for the respondent without objection, and without complaint that he did not do the best he could for him.

The defendant undoubtedly had a constitutional right to toe confronted with his witnesses. He waived that right in it-.biR case, apparently for his own supposed advantage and to obtain evidence on his own behalf. It would have been a mere impertinence for the court to have interfered and precluded this stipulation being acted upon. But it would have been more than an impertinence; it would, have been gross error. And. it would be palpable usurpation of power for us now to set aside a judgment for a neglect of the court not at the time complained of, but in respect to something where any other course would have been plain error.

Under the view taken by the respondent it would seem that when the evidence had been obtained under his stipulation, the court was put in position where it was impossible to avoid error; for if the evidence was received, he might complain, as he does now, that his constitutional right was violated, and if the court refused to receive it when he was ■consenting, the respondent would be entitled to have the conviction set aside for that error.

I shall always be ready to preserve in its integrity every constitutional right; but I do not understand that the Constitution is an instrument to play fast and loose with in criminal cases any more than in any other, or that it is the business of courts to be astute in the discovery of technical difficulties in the punishment of parties for their criminal conduct.

A number of special questions were put to the jury, and it is complained that the judge expressed to the jury an opinion on some of the facts covered by them. He was probably not as careful in that regard as he should have been. But we should not be over-critical in such matters, where the circuit judge certainly has some discretion. The judge said to the jury as to these: “ Answer the questions put to you, keeping in mind that the answers to these questions should be consistent with the verdict which you find.” This, it is urged, required the jury to conform their special findings to- the general verdict. But we think the court merely reminded the jury that the general verdict should be in accord with the facts as they found them; an unnecessary caution, perhaps, but certainly not misleading.

I discover no error in the record, and think the conviction .should be affirmed.

G-raves^-C. J. and Campbell, J. concurred.