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He inquired for the girl's mother, and learned that she was away from home. After spending some minutes in the house, his manner and speech attracting no particular attention, without preliminary quarrel, solicitation, or proposal, he seized Hazel, threw her on the floor, and a struggle ensued. There is no testimony tending to prove that he said anything to her except, "Listen to me, Hazel,” during the struggle. Hazel became unconscious, and when she recovered she was lying upon the cellar stairs and landing, her hair down, her hairpins broken, her lower lip and neck bruised, her tongue swollen. During the struggle she screamed, and respondent choked her. How she came upon the cellar stairs does not appear. She made immediate complaint. Respondent had gone. It does not appear that respondent at any time made any proposal to her except the one stated; that he kissed or caressed her; that he took any liberties with her person. The condition of her clothing indicated that he had not disturbed it. He did not violate her.
For the respondent (and he himself gave testimony) the fact that an assault of some nature was made upon the young woman is conceded. The intent with which it was made became the vital question in the case, respondent expressly denying that he at any time desired or sought to have sexual intercourse with the complainant, or assaulted her for that purpose. But he says that he had done an unusual thing that day in drinking to excess with persons on his route who were convivially inclined; that in consequence he became dazed, neglected to supply all of his customers, had an altercation in a barber shop, and conducted himself in a manner wholly different from his usual conduct and behavior. He does not recollect the details of the episode with Hazel beyond this: That he used violence towards her, and, upon somewhat appreciating what he had done, begged her to forgive him and to listen to his explanation. I am stating this in a very general way, but sufficiently to make plain the real issue made by the testimony. Character witnesses were produced by him, and these, with the complaining witness herself, make him out, previous to this occurrence, a very decent and respectable man, industrious and sober, of good moral character, and on good terms with his own wife.
A motion for a new trial and in arrest of judgment was denied. There are 23 assignments of error, not all of which deserve attention.
A witness who said she heard the complaining witness screaming and saw her very soon after, going at once to the place where she was, was asked by the prosecuting attorney to describe everything she saw and noticed. Over objection and exception, the witness detailed the appearance of the complaining witness. On cross-examination she went into details. It is said, in argument, that because the complaining witness had gone from her own house to a neighbor's and time enough had intervened the assault and the time when the witness saw her to permit an appearance to be manufactured, the testimony was improper and unfair to respondent. As has been stated, there appears to be no denial of the fact that respondent assaulted the complaining witness. The nature of the assault described by the complaining witness is in harmony with the visible results of it as described by the witness in question. And her cross-examination tended strongly to prove that respondent had not disturbed the clothing or taken liberties with the person of the assaulted woman. Beyond this it appears that the complaining witness on recovering consciousness fled at once to the neighbor's house, screaming, and that the witness in question, hearing her scream, went at once to the house to learn what the trouble was. The testimony was competent.
A character witness called for respondent had testified that respondent's reputation in the neighborhood where he lived was known to the witness, and that his reputation for decency, morality, truth, and veracity was good. He had known him five years and lived in the next house, never saw him intoxicated. Upon his cross-examination he was asked the following:
"Q. You wouldn't approve of the facts as exist in this case, if they are true, would you?
"A. If they are? "Q. Yes, you don't approve of that, do you? “A. No; no, sir. “Q. Now you say you have daughters of your own? “A. Yes, sir.
“Q. If a person—if you heard of this respondent going to a place, throwing a girl down on the floor and then taking her and dragging her into a pantry and there choking her into insensibility and then leaving the place and going away, would you consider a man's reputation for decency and morality was good that would do that?
“Mr. Hoffius: Just a moment, it is not a proper question, your honor.
“Mr. Herman: I have a right to know what he considers as decent.
"Mr. Hoffius: He testifies to a man's reputation
“The Court: He may answer it as tending to show his bias, or interpretation.
“Mr. Hoffius: No one knows how human beings do things at times when they are not themselves.
“Mr. Herman: I want to know what this person's idea of decency and morality is.
“The Court: A voluntary intoxication would not excuse a man from committing a crime.
"Mr. Hoffius: He may still have a good reputation for decency and morality.
"The Court: He may have prior to that, he is asking him simply if he approved of it.
“Mr. Hoffius: Reputation is put in for the purpose of showing the improbability of a man doing something that is contrary to every element in his life, that is the purpose of it. Now you cannot take the particular offense for which he is charged and measure his reputation by that.
"Mr. Herman: He admits doing these things.
"Mr. Hoffius: He hasn't admitted anything yet, he hasn't been on the stand yet.
“Mr. Herman: Under your statement he did.
“The Court: It is asked simply to test the view of the witness and his friendship and his bias and such things.
“Mr. Hoffius: Exception. "A. If he did not.
"Mr. Hoffius: Would you expect Peter Jansma to do it?
"A. No, sir. "Mr. Herman: You wouldn't expect him to do this four or five times before he would be convicted either, would you?
"Mr. Hoffius: Just a moment; that is an improper question.
“The Court: Oh, I think that is an improper question, both improper. Lawyers always want to get in a lot of things that are not proper."
Plainly, the cross-examination of this witness was made the occasion for an argument to the jury, unfair and prejudicial to respondent as well as insulting to the witness. The witness had already testified, without objection, that he did not approve of conduct such as the people's testimony tended to prove. The reasons given for continuing the examination were flimsy coverings of the real purpose. Just why it was made the occasion for the remark of the court that “a voluntary intoxication would not excuse a man from committing a crime" is not apparent. The principle stated and applied in People v. Snyder, 173 Mich. 616 (139 N. W. 1036), and People v. Huff, 173 Mich. 620 (139 N. W. 1033), cases which were tried in the same court, was violated by this cross-examination and the argument which accompanied it. See, also, People v. Laird, 102 Mich. 135 (60 N. W. 457). It was an attempt by improper means to then and there meet and render of no value the character evidence produced by respondent. It is admitted in the brief for the people that this cross-examination was improper, but stated that the prosecuting attorney was provoked into asking the questions by the conduct of defendant's attorney in examining another character witness previously sworn. It is said, too, that the court guarded the respondent's rights by the statement made at the end of matter above quoted. The court ruled directly upon the original objectionable question, admitting the testimony. The court had ruled differently when a similar question was asked of a witness earlier examined. It was error, and the reading of the colloquy shows it was not cured, nor attempted to be cured; nor was there any objection made to the testimony which is said to have provoked the prosecuting attorney.
Assignment of error No. 5 relates to testimony of defendant, who was asked whether he was abusive of his horses when he was sober. He answered. An objection then made was sustained, but the answer was not stricken out.
Considerable time and much argument was used in an effort of the prosecuting attorney to impeach the respondent. An examination of the whole record upon the subject discloses that finally the proper practice was pretty well observed, and no reversible error committed. The names of the witnesses called for this purpose, three in number, were not indorsed upon the information, and for this reason objection was made to receiving their testimony. The matter testified to by them was proper to be introduced after the defense had rested and the theory of the defense had been disclosed. This theory and the testimony to be offered in its support cannot always be anticipated by the prosecuting officers, for which reason they cannot know what witnesses may be required to rebut the testimony for the defense. And we think it sufficiently