Summary
In People v. Myers, 239 Mich. 105, we held that the testimony before an examining magistrate might be read at the subsequent trial even though there had been no previous cross-examination of the witness, it being only necessary that an opportunity for cross-examination had been present. It was not a question for the jury to determine whether a sufficient effort had been made to secure Carue's attendance. A request to that effect was made to the trial judge who, acting within his discretion, properly refused such request.
Summary of this case from People v. HunleyOpinion
Docket No. 138.
Submitted April 14, 1927.
Decided June 6, 1927.
Exceptions before judgment from Macomb; Reid (Neil E.), J. Submitted April 14, 1927. (Docket No. 138.) Decided June 6, 1927.
John W. Myers was convicted of violating the liquor law. Affirmed.
Fleming, Baird Morden, for appellant.
William W. Potter, Attorney General, Harold J. Waples, Assistant Attorney General, and James E. Spier, Prosecuting Attorney ( Christian F. Matthews, of counsel), for the people.
Under a search warrant officers searched defendant's premises and there found and seized 17 cases of beer and 10 cases of whisky. The affidavit for the writ contained the formal allegations and as grounds of the affiant's belief alleged:
"That the facts supporting the belief of the affiant and upon which the foregoing allegations are made are as follows: (4) That I have watched above described buildings for the past two weeks and have seen people go to said place and some come away intoxicated. During this time I have also seen people come from said place with intoxicating liquors. I was there on July 3, 1925, and while in the highway I saw people go to said house and some came away intoxicated. I also smelled the odor of intoxicating liquor which I traced and it came from the garage on above premises on said date. I saw a man obtain a case of whisky from these premises."
Defendant's counsel timely saved all questions by motion to suppress and to quash, and insist that the affidavit was not sufficient to authorize the issuance of the writ. While it is doubtless true that Act No. 382, Pub. Acts 1925, has modified some of the holdings of this court as to effect to be given to the odor of intoxicating liquors emanating from premises occupied as a dwelling house, if we eliminate such allegation from the affidavit sufficient remains to justify the issuance of the search warrant in the instant case. People v. Kerwin, 234 Mich. 686; People v. Collins, 235 Mich. 360; People v. Musczynski, 220 Mich. 536; People v. Effelberg, 220 Mich. 528, and authorities there cited.
Upon the motion to quash it was insisted that it was not sufficiently established before the examining magistrate that defendant occupied 102 Park avenue in the city of Mt. Clemens, the premises in question, and the testimony taken before the magistrate is made a part of the record. One of the witnesses, a neighbor, testified before the magistrate that defendant and his wife moved into 102 Park avenue over a year before the search took place, and that she had seen defendant go in and out once or twice a day. Other neighbors testified that they saw defendant go in and out frequently. We think this was sufficient to justify a finding that defendant was occupying the premises.
One Hazen Howard gave testimony before the examining magistrate of a cumulative nature. Defendant was then present and represented by counsel. Howard was at that time a member of the State police force. The people were unable to locate him at the time of the trial. It also appeared that they had desired him as a witness some two weeks previous on another case and had then made unsuccessful efforts to locate him. Effort was being made at his home, his last known place of employment, and subpœna had been issued, placed in the hands of officers in both cases and he could not be found. The trial judge held, and we agree, that sufficient effort had been made to procure his attendance. The people were permitted to read his testimony given before the magistrate. The defendant had the constitutional right to be confronted by the witnesses. But this right had been accorded to him. He had been confronted by this witness before the examining magistrate and had full opportunity to cross-examine him at length. We had this question before us in People v. Schepps, 217 Mich. 406 (21 A.L.R. 658), and there fully considered it. We there held that where a defendant was confronted by the witness before the examining magistrate, with full opportunity for cross-examination, his constitutional rights were not abridged by reading the testimony in the trial court, where the attendance of the witness could not be procured.
It is next urged that the court was in error in not permitting defendant's counsel to fully cross-examine the witness who made the affidavit for the search warrant with reference to the affidavit and particularly with reference to the circumstances surrounding the making of the affidavit. Upon the argument we were impressed that this presented the most serious question in the case. A careful examination of the record, however, does not satisfy us that reversible error is found in such rulings. The affidavit gave the court jurisdiction, and this jurisdiction could not be taken away by parol proof on the trial. Peoplev. Czckay, 218 Mich. 660. All agree upon this proposition. Such cross-examination could only be proper to test the credibility of the witness, and, at least since People v. Cutler, 197 Mich. 6, this court has consistently held that the extent to which a witness may be cross-examined on questions affecting his or her credibility rests in the sound discretion of the trial court, and that reversal may only be had for an abuse of such discretion. We are not persuaded that there was an abuse of such discretion in the instant case.
Finally, it is insisted that the legislature did not intend by section 2 of Act No. 53, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 7079 [2]), to make the possession of intoxicating liquors alone an offense; that such possession must be for the purpose of barter or sale. But the section is in no sense ambiguous and expressly includes possession unaccompanied by any qualifying words. Defendant's contention is not tenable. See People v. Stambosva, 210 Mich. 436, where the constitutionality of this section was sustained.
Defendant's exceptions are overruled, and the case is remanded for judgment.
SHARPE, C.J., and BIRD, SNOW, STEERE, WIEST, and McDONALD, JJ., concurred. CLARK, J., did not sit.