People v. Lowrey

Moore, J. An information was filed charging the defendant with having “on the 23d day of March in A. D. 1921, at the said city of Detroit forty-three dollars in lawful money of the United States of America, and one pocketbook, all of the total value of forty-three dollars and fifty cents of the personal property, goods and chattels of Blogio Trandoff from the person of the said Blogio Trandoff then and there being found, did feloniously steal, take and carry away; contrary to the form of the statute,” etc. The case was tried before a jury and defendant was convicted. The case is brought here by writ of error. It is the claim of defendant that no case was made against him because he was not connected by the evidence with the transaction. The people reply to that contention by quoting some of the testimony as follows: “I was on Michigan avenue to catch a street car [433] to go to my house, and a fellow came behind me and took my pocketbook. My pocketbook was in my back pocket, in my hip pocket, the left one. * * * “Q. Would you know the man that took your money and pocketbook if you saw him? I catch, him. “Q. Where is he? , Is the man in the courtroom now that took your pocketbook? “A. I think this is the man. * * * “Q. Is the man in the courtroom that took your pocketbook? You told me you saw somebody take your pocketbook? “A. Yes, sir. “Q. Who took it? “A. There is the man (indicating defendant). “Q. This man sitting over there? (indicating defondant) “A. Yes. * * * I saw that pocketbook after it disappeared from my pocket in the hand of that man. * * * “Q. You felt somebody take it out? “A. Yes. “Q. Where did you see it next? “A. A fellow came and take my pocketbook and run in the street. “Q. Which man? “A. I forget the name. “Q. Which man did you see run? “A. This man (indicating defendant). “Q. Did you ever see this man have this pocketbook? “A. Yes, in his hand.” The trial court was right in denying a motion for a directed verdict in favor of the defendant. People v. Lay, 193 Mich. 17 (L. R. A. 1917B, 608). In his argument the attorney for the people said in part: “That is the case, gentlemen of the jury. In a broken tongue the complaining witness tells you a straight frank, forward story, and I call your attention to this, gentlemen of the jury, that the facts that [434] he has related in this case stand absolute, uncontradicted and undisputed.” This is said to be in violation of section 12552, 3 Comp. Laws 1915, which reads: “That a defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.” Counsel cite People v. Evans, 72 Mich. 367; People v. Payne, 131 Mich. 474; People v. Hammond, 132 Mich. 422; People v. Cahill, 147 Mich. 201; People v. Mitchell, 164 Mich. 583; People v. Peterson, 166 Mich. 10; People v. Lay, 193 Mich. 17; People v. Schultz, 210 Mich. 297. A reference to those cases will show each of them easily distinguishable from the instant case. All of the alleged errors have been examined. We find no reversible error. The judgment is affirmed. Fellows, C. J., and Wiest, Stone, Clark, Bird, Sharpe, and Steere, JJ,, concurred.