People v. Hepner , 285 Mich. 631 ( 1938 )

I agree this case should be reversed as to the defendant Roy Hepner.

The people introduced a statement said to have been made by Hepner to a stenographer at 1:45 a. m. This statement was transcribed by the stenographer and introduced in evidence. It was admitted defendant Hepner had made another statement at 1:10 a. m. the same day to the same stenographer. This statement was transcribed by the stenographer but excluded by the trial court. Defendant did not for this reason have such a fair trial as he was entitled to.

The statement introduced was competent, if at all, on the basis of an admission or declaration of defendant. It was the duty of the prosecutor to produce both of these statements alleged to have been made by the defendant and to lay them before the trier of the facts whether their tendency was to establish the guilt or innocence of the accused.

"The only legitimate object of the prosecution is, 'to show the whole transaction, as it was, whether its tendency be to establish guilt or innocence.' The prosecuting officer represents the public interest, which can never be promoted by the conviction of the innocent. His object like that of the court, should be simply justice; and he has no right to sacrifice this to any pride of professional success. And however strong may be his belief of the prisoner's guilt, he must remember that, though unfair means may happen to result in doing justice to the prisoner in the particular case, yet, justice so attained, is unjust and dangerous to the whole community." Hurd v. People, 25 Mich. 405, 416.

"It has long been the settled law of this State, at least since the case of Hurd v. People, 25 Mich. 405, that a prosecuting attorney is not at liberty, in the trial of a criminal case, to select and call only such witnesses as are most favorable to the prosecution, when there are others who are in a situation to know, and do in fact know, as much about the transaction. The only legitimate object of the prosecution is —

" 'To show the whole transaction as it was, whether its tendency be to establish guilt or innocence.' " People v.Etter, 81 Mich. 570.

"As explained in Hurd v. People, 25 Mich. 405, and in the English cases there referred to, a public prosecutor is not a plaintiff's attorney, but a sworn minister of justice, as much bound to protect the innocent as to pursue the guilty, and he has no right to suppress testimony." Wellar v. People, 30 Mich. 16,23.

"It is the duty of the prosecuting attorney to furnish all the evidence within his power bearing upon the issue of guilt or innocence, in relation to the main issue, or to give some good excuse for not doing so." People v. Swetland, 77 Mich. 53,57.

"The duty of the prosecuting attorney is not discharged with the mere production of the witness. As is said inPeople v. Swetland:

" 'It is the duty of the prosecuting attorney to furnish all the evidence within his power bearing upon the issue of guilt or innocence, in relation to the main issue, or to give some good excuse for not doing so.' " People v. Germaine, 101 Mich. 485.

If it was the duty of the prosecuting officer to furnish as a part of the people's case and lay before the trier of facts both the statements alleged to have been made by the defendant Hepner, he did not discharge that duty in presenting one statement and suppressing the other. All legitimate presumptions were against the people if they failed to produce such testimony. Every intendment should be in favor of the opposite party. Cole v. Railway Co., 81 Mich. 156; Griggs v.Railway Co., 196 Mich. 258; Brandt v. C. F. Smith Co.,242 Mich. 217; Barber-Greene Co. v. Proksch, 251 Mich. 329.

In any event, the defense should have been permitted a full and searching cross-examination in relation to the statements alleged to have been made by the defendant. People v. Liphardt,105 Mich. 80. The rule as to testimonial completeness is the same as to statements oral or written. Parts of a written statement having no reference to the issue on trial are not admissible under the rule that a party is entitled to the entire statement. The rule means only that he is entitled to the entire statement bearing upon the subject in controversy. Parts of a conversation having no reference whatever to the issue upon trial are not admissible under the rule that a party is entitled to the entire conversation. The rule means only that he is entitled to the entire conversation bearing upon the subject in controversy. Atherton v. Defreeze, 129 Mich. 364.People v. Bowen, 170 Mich. 129, was reversed for a violation of this rule. The court quoted with approval Wigmore's statement that the "right of the opponent is universally conceded, for every kind of utterance without distinction," (3 Wigmore on Evidence [1st Ed.], § 2113) and the court approved the limitation upon the right as follows:

"In a definition of the limits of this right, there may be noted three general corollaries of the principle on which the rights rest, namely: (a) No utterance irrelevant to the issue is receivable. (b) No more of the remainder of the utterance than concerns the same subject, and is explanatory of the first part, is receivable. (c) The remainder thus received merely aids in the construction of the utterance as a whole, and is not in itself testimony."

This is the rule in 2 Chamberlayne on Modern Law of Evidence, § 1297.

"Where admissions of the accused are offered, he has a right to have the whole conversation admitted, whether the same consists of self-serving statements or not; the test being whether they form a part of the conversation proved by the people." People v. Bowen, supra.

There, the court approved the language ofCommonwealth v. Trefethen, 157 Mass. 180, 197 (31 N.E. 961, 24 L.R.A. 235), that "if any part of a conversation with the defendant put in evidence tends to show, directly or indirectly, that he is guilty of the crime charged, the defendant has the right to have put in evidence all that was said to and by him at the same time, and relating to the same subject, although it is in his favor."

Defendant's counsel were entitled under the facts as disclosed by this record to the production, and an opportunity to examine, both of the statements alleged to have been made by the defendant Hepner which were transcribed by the stenographer to whom they were made and in the possession of the prosecuting officer. People v. Dellabonda, 265 Mich. 486.

For suppressing one of these statements alleged to have been made by the defendant Hepner, not presenting it to the court and to counsel for the defendant, and denying cross-examination in relation thereto, the case should be reversed as to the defendant Hepner. Affirmed as to other defendants.

CHANDLER and McALLISTER, JJ., concurred with POTTER, J.