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acted for the protection of the accused. The most cursory examination of section 3 will disclose its vice. The court is directed to appoint one or more suitable, disinterested persons to investigate and testify. This appointment is to be made without notice to either the prosecuting attorney or the accused. The reasons which impel the court to make the selection are not of record and can never be known. The names of the selected experts cannot be indorsed upon the indictment by the prosecuting attorney as required by law, for he himself is as ignorant of their identity as is the accused. The right of one accused of crime to know in advance the names of the witnesses who will testify against him and to examine into their character, means of knowledge, etc., in order that he may properly prepare his defense, is a right as ancient as our criminal jurisprudence. The court is commanded to make known to the jury the fact of the appointment, and that his appointees have been found by him to be suitable and disinterested. The section then provides that other experts may be sworn by either prosecution or defense. This is an idle provision, for in the face of the certificate of character, fitness, and ability given to the court experts by the court, experts summoned by either side would receive but scant consideration at the hands of the jury; their testimony would be swept aside in a breath. Juries are most anxious to ascertain the opinion of the court as to the guilt or innocence of the accused, and, ordinarily, more than willing to adopt that opinion as their own. Trial courts, therefore, in doubtful cases, have jealously guarded their own opinions in order that juries might determine controlling facts uninfluenced by the mental attitude of the judge.
The expert witnesses provided for by this section testify under a sanction which gives to their testimony practically the same weight as if it were delivered by the court itself, and if that testimony, being against the accused, were either wilfully false or ignorantly mistaken, its baneful results would be appalling. To give to the testi
mony of a witness or witnesses this extraordinary certificate of candor, ability, and truthfulness, while the other testimony in the case must be judged by the jury by ordinary standards, is to subvert the very foundations of justice. In People v. Vanderhoof, 71 Mich. 158 (39 N. W. 28), this court said:
"The charge of the court virtually put the evidence of these doctors and professors upon a higher plane than the other testimony, which was manifestly wrong.'
In People v. Seaman, 107 Mich. 348 (65 N. W. 203, 61 Am. St. Rep. 326), the following language is used:
"An expert witness is to be judged from the same standpoint as any other witness."
In People v. Holmes, 111 Mich. 364 (69 N. W. 501), we said:
"When the question of insanity is to be submitted to the jury, the testimony which is offered to support the claim should be treated with the same respect as that offered to establish any other fact."
We do not overlook the fact that the statute here considered was designed to correct an evil long recognized as tending to bring the administration of the criminal law into disrepute, in cases where insanity is urged as a defense, but we are of opinion that the true remedy for this evil rests in the development of a livelier sense of responsibility. to the public for the proper and decent administration of justice on the part of both the legal and medical professions, rather than in revolutionary legislation. That both professions recognize and deplore the existence of the evil, there can be no doubt, and recent activities in both lend reason for hoping that the scandal which has often attended the introduction of expert testimony will, in the future, cease to be a reproach in the administration of criminal law.
In view of our conclusions upon the second point discussed above, it is unnecessary to give attention to the
third ground urged. We must hold section 3 unconstitutional.
The judgment is reversed, and the respondent remanded to the custody of the sheriff of the county of Wayne, to be tried again.
HOOKER, MOORE, MCALVAY, and BLAIR, JJ., concurred.
PEOPLE v. SLATER.
1. INTOXICATING LIQUORS-LOCAL OPTION-PROHIBITION
The local-option law does not prohibit the individual use of intoxicating liquors or prevent the decent exercise of hospitality of the host towards guests in his home; but it is intended to prohibit all traffic in liquors.
2. SAME GUESTS-FURNISHING LIQUORS IN HOME.
Whether or not the act of respondent, who permitted a friend to drink from a bottle of whisky in his room, without express invitation, was an honest act of hospitality to a guest, was a question of fact for the jury, under evidence from which different inferences might properly be drawn.
3. CRIMINAL LAW-TRIAL
In a prosecution for unlawfully furnishing intoxicating liquor to a person in a local-option county, the attorney for respondent did not waive his right to insist that questions of fact be submitted to the jury, by contending that the court should direct a verdict in his favor.
Exceptions before sentence from Clinton; Searl, J. Submitted October 21, 1910. (Docket No. 152.) Decided December 30, 1910.
Frank Slater was convicted of violating the local-option law. Reversed.
Edward J. Moinet, Prosecuting Attorney, for the people.
Walbridge & Kelley, for respondent.
MOORE, J. The respondent is charged with a violation of the local-option law. At the close of the testimony offered by the people, his counsel asked the court to direct a verdict of acquittal. The judge said he would overrule the motion for the present, but would hear counsel at the close of all the testimony. Testimony was then introduced on the part of the respondent. At the close of all the testimony, in response to an inquiry by the judge, counsel on both sides said they regarded it as the duty of the judge to direct a verdict. The judge instructed the jury, in substance, that it was their duty, under the evidence, to convict the respondent. The jury retired to the jury room and after a time returned a verdict of guilty. The case is here upon exceptions before sentence.
Counsel for respondent make two claims, first, that a verdict of acquittal should have been directed in favor of respondent; citing the cases of People v. Peterson, 156 Mich. 235 (120 N. W. 570, 21 L. R. A. [N. S.] 134), and People v. Bedell, 162 Mich. 230 (127 N. W. 33).
The second contention is (we quote from the brief):
"The second point in this case is that if the Supreme Court should hold that the trial court was justified in refusing to direct a verdict in respondent's favor, he still had the right to have his case passed upon by the jury, because the matter of his intent was involved. The charge of the court was faulty in not presenting to the jury the question whether respondent was acting in good faith or attempting and intending to evade the law. People v. Bedell, 162 Mich. 230 (127 N. W. 33); People v. Peterson, 156 Mich. 235 (120 N. W. 570, 21 L. R. A. [N. S.] 134); People v. Neumann, 85 Mich. 98-104 (48 N. W. 290). There was no material dispute upon what took place in respond
ent's room, and the only question left was whether respondent's acts constituted a violation."
It is apparent that a comparatively full statement of the testimony is necessary to a determination of the questions presented. Mr. Keyes testified:
"That he was 54 years of age; that both witness and respondent had resided at said city of St. Johns for a number of years; and that they were both painters and paper hangers by trade, and had been acquainted and on friendly terms for about 30 years."
On the day in question, the witness testified:
"I don't know when I had seen Slater before then. seen him about Fair time, and I probably might have seen him before that.
"Q. Just tell the jury how you came to meet him down there on Clinton avenue.
"A. Well, sir, I came down Clinton avenue on Sunday between 8 and 9 o'clock in the morning and met him down there in front of the Kenyon Block. No one else was present that I know of.
"Q. Well, what conversation did you have there with him at that time?
"A. We was talking about going away. I told him I was going away to look for a job, and he said if I would wait a week or two he could go with me.
* * *
"Q. What talk did you have about going up to his room, if anything?
"A. Nothing in particular, only he said something about going up, and I went up with him. He said, 'We will go up to the room and have a talk,' something to that effect. When I got up to his room I took a chair and sat down.
"Q. What did he do?
"A. Well, sir, he unlocked his trunk, and got out a little booze-whisky. It was in a quart bottle I should judge, and was about two-thirds full. He said he got it to Owosso the Saturday before.
"Q. What did he do with the bottle when he took it out of the trunk?
"A. He set it upon the stand. The stand set right in front of me. I sat down by the stand.
"Q. What did you do?