People v. Maczulski

Moore, J. The respondent is convicted of having unlawfully procured himself to be registered as a physician under the provisions of Act No. 237, Pub. Acts 1899, as amended by Act No. 368, Pub. Acts 1913 (2 Comp. Laws 1915, § 6726). The case is here on exceptions before sentence. The first group of assignments relates to the sufficiency of the information, the jurisdiction of the court to try the case, and the sufficiency of the proof. The information charged the offense in the language of the statute and was sufficient. After the respondent filled out his application for a license, he passed an examination at Lansing, and for that reason it is claimed the case should have been tried in Ingham county instead of in Wayne county. The record shows the application was filled out and filed in Wayne county, and that the license was issued in that county. We think the court in Wayne county had jurisdiction to try the case. It is said the court erred in not striking out certain testimony. It is a sufficient answer to this that counsel for the respondent drew out the testimony on the cross-examination of the witness. In his closing argument the prosecuting attorney said, in part: “1 would have no right to say why he (the defendant) was not put on the stand, but they having mentioned it, why he was not put on the stand, because, if he got on the stand, it would be brought out from the defendant himself, to the register of the board as all the facts necessary in the Albany case. They did not put him on the stand. * * * Then we could go into his whole life, his whole history from the year 1910.” This is said to be error. The people seek to excuse [195] this argument because counsel for the respondent had given a reason for not calling him. If the question was properly before us, the case nearest in point is People v. Hammond, 132 Mich. 422 (93 N. W. 1084). In the instant case the misconduct complained of is not shown to have been called to the attention of the trial court nor any ruling asked or obtained. The record only discloses that an “exception” by defendant’s counsel was noted to the portions complained of during the.progress of the argument. The well-settled rule is that the mere noting of an exception to objectionable argument without calling it to the attention of the trial court does not save the question for review. This has been emphatically and repeatedly held by this court in both criminal and civil cases. In People v. Sartori, 168 Mich. 308 (134 N. W. 200), where a conviction of murder was sustained, the court said: “Except in one_ instance, counsel for respondent contented himself with taking an exception to particular portions of the argument of the prosecuting attorney without asking for, or obtaining, a ruling thereon by the court. Under repeated rulings of this court, such, exceptions cannot be considered” —citing numerous preceding cases. The rule is reiterated with repetition of citations (including the criminal case of People v. Danenberg, 176 Mich. 337 [142 N. W. 347]), in the recent case of Spencer v. Johnson, 185 Mich. 85 (151 N. W. 684). “Improper remarks of counsel must be promptly-objected and excepted to, and the court requested to instruct the jury to disregard them in order that they may be reviewed on appeal. And exception should be; taken to the refusal or the omission of the court to so instruct the jury.” 12 Cyc. p. 819. “The office of exceptions should be to apprise the court of alleged errors, with a view to their correction, when possible; and, with the exception of cases where errors are alleged upon the charge, exceptions must [196] be brought to the attention of court and counsel at the time the alleged error is committed.” People v. Roat, 117 Mich. 578 (76 N. W. 91), and People v. Sartori, 168 Mich. 308 (134 N. W. 200). The importance and applicability of this rule to the present case is manifest, for had the objection been called to the attention of the court, or a request made for instruction to the jury to disregard the prosecutor’s reply to defendant’s counsel, the court could, and with the path pointed out by precedent presumptively would, have given such instruction and eliminated any possible claim of error. • The conviction is affirmed. The case is remanded to the court below for further proceedings. Kuhn, Bird, Steere, Brooke, and Person, JJ., concurred with Moore, J.