페이지 이미지
PDF
ePub

to do so.

Error is assigned only upon the last four lines of the above statement.

This court has held in People v. Quick, 58 Mich 321 (25 N. W. 302), that the statement of a prosecutor upon his official oath that he believed the respondent guilty as charged was reversible error. The same was also held in People v. Dane, 59 Mich. 550 (26 N. W. 781), where the prosecutor made the positive statement to the jury that he knew that the respondent was guilty. As stated in the latter case:

“It is improper for one occupying the position of the prosecuting officer to make a statement to the jury of a fact, as of his own knowledge, which has not been introduced in evidence under the sanction of an oath.”

In the cases cited, and other like cases, such statements are held to be prejudicial and erroneous, because they are not in the nature of conclusions based upon the facts in evidence. From the language in the instant case, read as a whole, the prosecuting officer was drawing his conclusions from the evidence in the case, and so stated at great length. In fact, it was an argument addressed to the jury to come to a verdict only after weighing all of the evidence carefully and well, and argued that from the evidence he believed respondent guilty. This court has repeatedly distinguished between cases where the language used was of the same character as in the instant case and the cases above cited, and in doing so said:

“This court has repeatedly expressed itself as to the impropriety of the prosecuting attorney expressing to the jury his personal opinion as to disputed facts (citing People v. Quick, supra; People v. Dane, supra; and People v. McGuire, 89 Mich. 64 [50 N. W. 786]) ; but it has never been held that he may not say to the jury that certain testimony in the case impresses him with the belief that the respondent is guilty, and why it so impresses him (citing People v.

Welch, 80 Mich. 616 [45 N. W. 482] ; People v. Hess, 85 Mich. 128 [48 N. W. 181], and quoting from the latter case as follows:

“ 'It is not proper for the prosecuting officer to tell the jury that he believes the defendant guilty, as his belief is not evidence in the case; but he has the right to argue from the testimony that the defendant is guilty, and to state to them what evidence before them convinces him, and should convince them, of such guilt. To deny to a prosecuting officer this privilege would be to deny to him the right to place before the jury the logic of the testimony which leads his mind to the inevitable conclusion of guilt, and which he has the right to presume will lead them to the same conclusion if they view it as he does.'"

People v. Ecarius, 124 Mich. 616, 624 (83 N. W. 628).

The practice by prosecuting officers of stating their beliefs as facts has never been favored by this court, and such officers should use great care in avoiding such statements. The statement complained of was not prejudicial.

Errors are assigned upon the refusal of the court to give six certain requests to charge on the part of the respondent. From our examination of these requests and of the charge as given it will be sufficient to make the general statemeni that those which were not included in the general charge were properly refused.

Several errors are assigned to the general charge of the court without specifying the portions of the charge referred to, or designating the pages of the record or paragraphs of the charge. This court has not favored such practice, and cannot make examination of the whole charge in order to determine which portion will fit any particular assignment of this character. People v. Sanders, 139 Mich. 442, 446 (102 N. W. 959).

Error is assigned on the ground that the court refused to give respondent an opportunity to bring the

[ocr errors]

case to this court upon exceptions before sentence. The record contains no motion or other statement to that effect made on the part of respondent. We find, however, in his reasons for denying the motion for a new trial a statement by the court that on the hearing of that motion counsel for respondent stated that it was his understanding that it took the place of exceptions before sentence under the statute. The court expressed his opinion that such was not his understanding of the practice, and said, if it were, he held that all such exceptions and reasons were frivolous, and constituted no ground for delaying sentence. There is nothing in the record to show that the statute relied upon was complied with in any respect. The motion for a new trial was made March 2, 1914. It was denied March 7th, and sentence pronounced. The proposed bill of exceptions was filed March 17th and settled April 1st.

We have examined the charge of the court as given to the jury, and are satisfied that the case was submitted without prejudicial error, and that none of the many reasons upon which the motion for a new trial was based were meritorious, and that the court properly denied such motion.

The conviction and judgment of the circuit court are affirmed, and the cause will be remanded to the circuit court for Genesee county for the execution of the judgment.

BROOKE, KUHN, STONE, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.

CHAMPAIGN V. DETROIT UNITED RAILWAY.

1. STREET RAILWAYS PERSONAL INJURIES - EVIDENCE OF NEGLECT TO GIVE SIGNALS. Evidence that plaintiff and her husband, who were driving

along the street car track of defendant on a bright, clear day, turned to look for a car before crossing the track, but observed no car approaching; that they heard no bell or other signal, and that their vehicle was struck as they were passing over the track, and was overturned, throw. ing them out and injuring them; that they did not see or hear the car until it struck the rig, met by testimony of defendant showing that the speed of the car was moderate; that signals were given, and the car only struck the vehicle slightly, doing no injury to it, and was promptly stopped, supported by the statements of substantially all the witnesses who saw the accident that they heard the bell sounded, reviewed, and held, to be insuffcient to establish negligence in the failing to give warn

ing signals. 2. SAME-SIGNALS—BELL.

In the middle of a block, with nothing to indicate the

probability of any accident, it is not the duty of the motor.

man to sound his gong continuously. 3. SAME-DISCOVERED NEGLIGENCE-LAST CLEAR CHANCE.

The rule of discovered or subsequent negligence has no

application to a case in which the plaintiff, driving along a car track about 30 feet in advance of a street car, at. tempted to turn and cross the track; the motorman receiving no intimation that plaintiff intended to cross in

front of the car. 4. SAME-CONTRIBUTORY NEGLIGENCE.

Where plaintiff or the driver could not have failed to per

ceive the oncoming car if they had looked with ordinary care, in the absence of evidence that the car was running at a high rate of speed, contributory negligence will pre

clude her recovery. 5. SAME-APPEAL AND ERROR-STRIKING OUT TESTIMONY.

And where the testimony of a witness, who stated that she

saw the car as it passed and testified relative to its rate of speed, was struck out by the court, saying in so ruling, "if she didn't see the car, you can strike that out,” and plaintiff's counsel did not attempt to explain the matter or bring out what the witness had observed in answer to the suggestion of the court, but merely excepted, reversible error was not made out.

Error to Wayne; Van Zile, J. Submitted June 4, 1914. (Docket No. 21.) Decided July 24, 1914.

Case by Mary Champaign against the Detroit United Railway for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error. Affirmed.

Ignatius J. Salliotte, for appellant.

Corliss, Leete & Joslyn (William G. Fitzpatrick, of counsel), for appellee.

STEERE, J. This action was brought by plaintiff to recover damages for personal injuries resulting from a collision between one of defendant's street cars and a market wagon in which she, riding with her husband, was attempting to cross defendant's tracks in front of an approaching car. She has removed the case to this court by writ of error for review of a judgment on directed verdict in favor of defendant.

It was the opinion of the trial court that plaintiff's proofs failed to disclose any actionable negligence on the part of defendant, and that the accident was attributable solely to the rig in which plaintiff was riding being unexpectedly, and without previous indication of such purpose, turned upon the street car tracks at a time when a passing car was so close that it was impossible for the motorman to stop it in time to avoid the collision. Plaintiff, a married woman near 60 years of age,

181 Mich.-43.

« 이전계속 »