People v. Todaro , 253 Mich. 367 ( 1931 )

Under the opinion in People v. Wudarski, ante, 83, I find no reversible error in De Piazzi's case.

In Todaro's case it was prejudicial error to permit the arresting officer to testify that, when he brought Todaro from the lavatory, some one, whom he did not see or know, said: "That is one of them." It was a hearsay accusation and identification by an unknown person, and, of course, there was no opportunity afforded to test the truth thereof.

Ages before, Sir Walter Raleigh, in 1603, was denied the right by Chief Justice Popham, to be confronted with his accusers; it was, and ever since then has been, the right of an accused, as declared by article 2, § 19, of the Constitution of Michigan, "to be confronted with the witnesses against him." Raleigh urged:

"If there be but a trial of five marks at common law, a witness must be deposed. Good my Lords, let my accuser come face to face, and be deposed."

Chief Justice Popham refused, and, in passing sentence, gave the following reason:

"It now comes in my mind, why you may not have your accuser come face to face: for such an one is easily brought to retract, when he such there is no hope of his own life." 1 Hargrave's State Trials (Ed. 1776), p. 212.

The hearsay testimony supplied the prosecution with an essential item of proof, singling out Todaro as a hold-up man and refuting his claim that he was a patron of the house.

For the error mentioned, Todaro's conviction should be set aside, and a new trial granted.

BUTZEL, C.J., concurred with WIEST, J.