People v. Roth , 228 Mich. 447 ( 1924 )

Defendant was tried and convicted for a violation of the liquor statute. The information charged him with keeping a place where "whisky was unlawfully stored, possessed, sold, given away and furnished." The offense was charged as a second violation of Act No. 338, Pub. Acts 1917, as amended (Comp. Laws Supp. 1922, § 7079 [51]).

1. Complaint is made because the records of the court were admitted to show defendant's prior conviction in 1920 for a violation of this act, on the ground that it occurred three years prior to this trial and at a different place. In view of section 51 of Act No. 338, as amended, it does not appear important that the prior conviction was had three years previously, or in what place or county the prior violation took place. That section provides:

"and for every second and subsequent offense so committed, whether in the same county or in any other county of the State, he shall, upon conviction thereof, be sentenced to imprisonment in any penal institution of this State," etc.

Counsel further argue that the admission of the records violated the rule that prior distinct offenses cannot be shown for the purpose of raising an inference that the defendant has committed the offense in question. We think that rule has no application here. It was held in People v. Campbell, 173 Mich. 381, in construing a similar statute, that it was necessary to allege the prior conviction in the information, and that unless this was done the court had no authority to increase the sentence. This evidence was properly guarded by the court in his charge at the suggestion of defendant's counsel. The purpose of this testimony was explained to the jury, and they were told that evidence of the former conviction was admitted only for the purpose of showing this to be a second offense. We think there is no merit in this complaint.

2. Evidence was admitted that a search was made at defendant's soft drink parlor on February 28, 1923. It was shown by the officer making it that he found a small bottle of whisky on Melvin Hall, who was an employee of defendant; that he took it from Hall's pocket, and that subsequently Hall pleaded guilty to having in his possession intoxicating liquor. As we understand the record there is no claim that defendant was present when his place was searched, and there is no proof that defendant had any knowledge that the employee was carrying liquor on his person. Unless defendant had some knowledge of it and in some way gave his consent or approval of it, the testimony was incompetent and should have been rejected.

3. It appears that on May 1, 1923, the officers made another search of defendant's place, and found a small quantity of liquor. Defendant was arrested and tried for having possession of intoxicating liquor, and upon the trial he was acquitted. Subsequently one Kuschniak was arrested for the same offense. He was convicted and sentence was imposed. The trial court permitted the people to go into these matters over defendant's repeated objections. Subsequently, and when the case was nearly finished, the trial court struck out this testimony on his own motion. Counsel argue that striking out the testimony did not cure the error. We agree with counsel that testimony of this character once gotten before the jury on a charge of keeping a place where intoxicating liquors were unlawfully sold would have its effect, even after it was stricken out. This testimony would be very influential in characterizing the place kept by defendant in the mind of the average juror. The testimony was incompetent and highly prejudicial to the defendant.

4. It also appeared that on June 22, 1923, a third search of defendant's premises was made. It resulted in finding a half-pint bottle partially filled with whisky in the basement. Defendant was informed against for having liquor in his possession, and this case was pending when the present case was tried. The court admitted testimony of that proceeding to be shown to the jury. We think this was error. Had the party who made the complaint in that case testified in this case to what he swore to in the complaint, he could have been cross-examined upon the charge which he made, but simply permitting evidence that a case of that character was pending against defendant in the circuit court should not have been used against him.

For the errors indicated the judgment of conviction should be set aside and a new trial granted.

WIEST, J., concurred with BIRD, J.