People v. Nemer

187 N.W. 315, 218 Mich. 163, 1922 Mich. LEXIS 551
CourtMichigan Supreme Court
DecidedMarch 30, 1922
DocketDocket No. 157
StatusPublished
Cited by8 cases

This text of 187 N.W. 315 (People v. Nemer) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Nemer, 187 N.W. 315, 218 Mich. 163, 1922 Mich. LEXIS 551 (Mich. 1922).

Opinion

Fellows, C. J.

Defendant was convicted of arson and reviews the case here on exceptions before sentence. Charles Weller ran a store at Belle Oak in Ingham county. The building was owned by one Simpson. David Nemer, a nephew of defendant, ran another store there. There is a conflict in the testimony as to whether defendant or his nephew owned the store, but if David owned it he was largely indebted to defendant. About 2:30 o’clock in the mom[165]*165ing of July 22, 1919, the Weller store was burned. It is admitted that the fire was of incendiary origin. There was testimony in the case which would justify the jury in concluding that defendant himself set the fire and they likewise would have been justified in concluding from the testimony that the fire was set by one Mike Bossumer, and there was testimony justifying a conclusion that he was promised $500 by defendant to do the job. At the time of the trial Bossumer was serving a sentence for complicity in the ofiense, having been convicted on his plea of guilty, and David was under arrest. Both testified on the trial and both implicated defendant as the originator of the plan to bum the store.

Defendant was a witness in his own behalf and several assignments of error deal with what occurred on his cross-examination. The prosecuting attorney was permitted to cross-examine him with reference to a chattel mortgage. We do not perceive the materiality of the evidence sought to be elicited or the harmfulness of the examination. It could have been omitted with propriety but permitting it was not reversible error. Some questions were asked, the answers to which were self-evident. They were doubtless prompted by the evasiveness of defendant in replying to the prosecutor’s questions. On one occasion the prosecuting attorney, after obtaining a direct answer, said:

“Q. Yes. You would like to have them believe that all right. I consider that a distinct victory.”

Error is assigned on this statement. Much space is devoted in the briefs to this incident, in fact, more than it deserves. Defendant’s counsel insists that it was innuendo aimed at defendant while the prosecutor insists it was but the expression of satisfaction upon receiving a direct answer to one of his questions. We will not settle this controversy between counsel as we [166]*166do not thirds: the remark constituted reversible error. While it is true as contended by defendant’s counsel that the prosecuting attorney stands in a somewhat different position than private counsel and in the trial of a case has the duty cast upon him of seeing that defendant has a fair trial he is not required to be supine, nor is he required to apologetically present the people’s case. He is entitled to display a reasonable amount of vigor in the trial of a case, and, unless he transgresses the rules of conduct his position as a public officer requires, should not be condemned by this court. This assignment of error is without merit.

Defendant sought by so-called character testimony to establish his good reputation as a law-abiding, upright, honest citizen. It is evident from this record that his counsel was somewhat disappointed in the evidence elicited from some of the witnesses who testified on this subject. One of the witnesses on cross-examination demonstrated that he was basing his opinion on his dealings with defendant and not upon what others spoke of him, and on such cross-examination testified that he had heard péople say that defendant was a crook. On redirect-examination defendant’s counsel asked him:

“Q. Now, just a moment. What you have heard people say, did you ever hear anything stated upon authority that would back that assertion?
“A. No, sir.”

This answer was stricken out as was the opinion of this witness based on his personal dealings with defendant. We think these rulings were proper. It was the avowed purpose of defendant’s counsel to establish as a fact that defendant’s dealings with the witness were honest, and that those who spoke ill of defendant could not “back” their “assertions” with proof. Reputation is based on the “speech of people,” “what people say of a man.” People may or may not [167]*167correctly measure their fellowmen. This character of testimony is of importance in criminal trials, and evidence of the good reputation of a defendant as a law-abiding, honest citizen is always received, but this does not permit him to try out the collateral issue that all who speak against him in the community have no foundation in fact for their views. Mr. Wharton in dealing with so-called character testimony says (1 Wharton’s Criminal Evidence [10th Ed.], § 58) :

“Character, in the sense in which the term is used in jurisprudence, means the estimate attached to the individual by the community, not the real qualities of the individual, as conceived by the witness. It is not what the individual really is, but what he is reputed to be, generally, by the society and the community in which he moves and resides. So, a witness called to speak as to character cannot give the results of his own personal experience and observation, or express his own opinion, but he is confined to evidence of general reputation in the community where the defendant resides or does business. Such a witness, so confined to general reputation, may be examined for the purpose of testing his opportunities of ascertaining that reputation.”

The rulings of the trial judge were in consonance with these views.

The trial judge limited the number of character witnesses to six and error is assigned on this action. Neither counsel has called to our attention a case in this court where the precise question was involved. In Barhyte v. Summers, 68 Mich. 341, this court held that it was error to limit the number of witnesses testifying to the condition of a mare, that being the “vital point” in issue. In Sulkowski v. Zynda, 160 Mich. 7 (136 Am. St. Rep. 414), it was held to be error to limit the number of witnesses on the question of whether plaintiffs speech was affected before the injury, where that question was the material and disputed issue. In Riggs v. Sterling, 60 Mich. 643 (1 [168]*168Am. St. Rep. 554), the power of the court to limit the number of witnesses on the question of value, a matter of opinion, was recognized, and the limiting of the number to six held not to be an abuse of discretion; and in Detroit City Ry. v. Mills, 85 Mich. 634, where the court limited the number of witnesses to the use of the street and the effect of adopting electricity as a motive power for street cars, Mr. Justice Grant said:

“Defendants’ counsel announced that they had a large number of witnesses to the same effect, and asked permission to call two or three more. The court said that five or six witnesses to any particular fact was sufficient, and that it was clearly within its discretion to limit the number of witnesses; that as to the points already covered defendants would not be permitted to call more witnesses, but as to any new facts they might call more. The circuit judge was .clearly right in this exercise of his discretion.”

Mr. Wigmore in his work on Evidence (Vol. 3, § 1908) has this to say of character evidence:

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Bluebook (online)
187 N.W. 315, 218 Mich. 163, 1922 Mich. LEXIS 551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-nemer-mich-1922.