Saunders v. People

38 Mich. 218, 1878 Mich. LEXIS 37

Opinions

Cooley, J.

My brethren are of the opinion that the recorder erred in his rulings in the reception of evidence in two particulars:

First, When he overruled the question put to the witness Webb, on cross-examination, whether he had not had some transactions with the defendant, wherein he had put in some false swearing for him or for the parties ; and,

Second, When he excluded the evidence sought from the witness, Dunnebacke, to show that there was nothing unusual or necessarily suspicious in defendant’s being where he was seen in company with Moylan.

Webb was an important and necessary witness in the case, and the conviction of defendant must, so far as we can understand from this record, have depended upon the belief of the jury in his evidence to conversations had with the defendant. That evidence was open to unfavorable inferences; and without saying that such inferences should have been drawn, my brethren think the recorder should have permitted very searching cross-examination under the circumstances. If he testified truly, he was apparently conniving at and assisting in the crime charged; and though he may have done this, as he says, not by way of enticing defendant into crime, but only by allowing him the opportunity he sought and requested, yet it placed him in an equivocal position, and the jury ought to have had the benefit of all the light the former dealings of the parties would have thrown upon the transaction. And although a question to the witness which implied rascality in the defendant himself as well as the witness seems extraordinary, yet it may have tested the credibility of the witness as well as any other; and his credibility in the case was quite as much involved as the defendant’s guilt.

The purpose of Dunnebacke’s evidence was to remove the unfavorable impressions which might be drawn from defendant and Moylan being seen together at a particular spot near the place of the burglary' and but a little while before. It is said on behalf of the prosecution that no importance was attached to the place of their meeting, but my brethren think the jury would have been likely to attach importance to it, and that evidence showing that there was nothing unusual in his being there, might have been useful to him and should have been received.

This being the view of the majority of the court, the judgment will be reversed and a new trial ordered. .

Graves, J., concurred.