People v. Chism

This case raises three issues:

1. unconstitutional denial of speedy trial;

2. admissibility of evidence of prior similar action under MCLA 768.27; MSA 28.1050; and

3. validity of particular search and seizures.

I. FACTS

Mrs. Ñola Puyear was killed in the presence of her husband when a package addressed to her and delivered through the mails exploded as she attempted to open it. Investigation produced pieces of the wrapper containing the hand lettered address, masking tape and metal fragments identified as being from a "Fiske” type battery. The wrapper also disclosed a postmark "Marshall”, which testimony showed was a cancellation peculiar to Marshall, Michigan.

Search of the Puyear establishment also produced a bottle of pills and wrapper with handwriting on it. Mr. Puyear testified the pills had been received 6 to 12 months prior. Chemical analysis after Mrs. Puyear’s death established the pills as lye although the label indicated tranquilizers.

To establish their case the police interviewed various Marshall area residents, collecting handwriting samples. Defendant was interviewed and gave handwriting samples. Subsequently he was arrested and charged with first-degree murder on October 11, 1967. After a "Miranda” warning he gave written consent to the search of his house as will more fully be discussed later. Defendant’s wife also gave written consent to search the house. The search was made October 11, 1967. However, on October 12, 1967 officers returned to the house and requested and were given certain checks and a daily record book seen but not taken the day before.

Subsequent to arrest, defendant on October 18, 1967 requested appointment of counsel as an indigent. Such property as he had he had conveyed to his wife. Counsel was denied on January 9, 1968 and appeal therefrom was taken with counsel specially appointed for the appeal. It was not until April 23, 1969 that the Court of Appeals ruled that defendant was entitled to assigned counsel. In the meantime with specially assigned counsel defendant was given a preliminary hearing and bound over to stand trial for murder on November 16, 1967. The trial court was ready to commence trial promptly after the Court of Appeals ruled, but defendant’s new counsel needed time and moved to quash for denial of speedy trial on June 19, 1969, as defendant had done pro per June 20, 1968. Thereafter the trial court denied the motion and on January 20, 1970, 27 months after arrest, the case came to trial. On January 30, 1970 defendant was convicted of murder in the first degree. Defendant appealed. The Court of Appeals affirmed. 32 Mich App 610; 189 NW2d 435 (1971). Defendant has been in jail since arrest.

II. SPEEDY TRIAL

The facts relating to a speedy trial are set out in full in Appendix A. It took the case 27 months to come to trial. However, the case was approximately 14-1/2 months on appeal so that the trial court actually had the case about 12-1/2 months.

The United States Supreme Court in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972) established a general rule applicable to speedy trial cases, which this Court has recognized as the definitive test in this area. People v Grimmett, 388 Mich 590, 602; 202 NW2d 278 (1972); People v Collins, 388 Mich 680, 688; 202 NW2d 769 (1972). The United States Supreme Court stated the rule as follows:

"A balancing test necessarily compels courts to approach speedy trial on an ad hoc basis. * * * Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” 407 US 514, 530.

A. Length of Delay

As we said in Collins:

"The United States Supreme Court stated that: 'The length of delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial there is no necessity for inquiry into the other factors that go into the balance.’ 407 US 514, 530. The Court noted that the delay which would provoke such an inquiry was necessarily dependent upon the 'peculiar circumstances of the case.’ ” 388 Mich 680, 688-689.

The total length of delay in this case is 27 months. Without appropriate explanation this is far too long. In Collins we said:

"The 15 months, including 7 months in jail is far in excess of the legislative 6-month standard and much too close to the 18-month rule of Den Uyl. It is unduly long unless the other factors require a different result.” 388 Mich 680, 690.

B. Reason for the Delay

As the United States Supreme Court stated in Barker, "[t]he approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.” 407 US 514, 530.

In assessing responsibility for the length of the case, it must be considered that of the 27 months duration 12-1/2 months was consumed in the trial court and 14-1/2 months on appeal originated by the defendant.

Of the 12-1/2 months spent in the trial court, a little over 3 months were spent before appeal and about 9 months after appeal. Most of the three months prior to appeal was spent in consideration of defendant’s request for counsel as an indigent. The trial judge held hearings and then took the matter under consideration. The problem was that defendant had created his own indigency by voluntarily transferring his assets to his wife. She was separating from him and would not pay for his lawyer. It is difficult to say that the time the trial judge took to rule adversely here materially affected defendant’s rights.

Of the nine months in the trial court subsequent to the appellate decision allowing counsel, seven months were to meet defendant’s and his counsel’s convenience.

As a consequence it must be concluded that the time spent in trial court while deliberate was probably legitimate and the responsibility for the length of the largest portion of it was defendant’s not the prosecution’s or the trial court’s.

Defendant certainly had a right to appeal but time reasonably consumed on appeal cannot be considered as in derogation of a speedy trial. People v Den Uyl, 320 Mich 477, 489-490; 31 NW2d 699 (1948). Both defendant and the prosecutor moved to accelerate the case, and the whole 14-1/2 months required by the Court of Appeals to dispose of this motion is hard to justify under the circumstances, particularly in light of that Court’s abbreviating the time for filing briefs and motion to advance by defendant agreed in by the prosecutor. Consequently, it must be recognized that a part of the appeal time is indeed excessive and that this must be taken into consideration.

In considering the whole 27 months, however, between arrest and commencement of trial the major portion can be justified as necessary to process the case or to fit the defendant’s convenience. There was some excess time taken on appeal.

C. Defendant’s Responsibility to Assert His Right

The United States Supreme Court in Barker v Wingo, supra, stated:

"[Defendant's assertion or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.” 407 US 514, 528.

In the instant case, defendant pro per moved to dismiss because of denial of a speedy trial approximately eight months after arrest and while his assigned counsel for appeal of more than four months had his case on appeal. The trial court did not hear this motion until almost ten months had elapsed, partially because the matter was on appeal, although it was still on appeal when he decided the motion a few days later.

Some 20 months after arrest and about 2 months after assignment of trial counsel, defendant moved to quash for denial of speedy trial.

Defendant moved with reasonable dispatch all things being considered and raised his right to speedy trial once pro per and once promptly after receiving assigned counsel. It must be recognized that defendant fulfilled his obligation to protect his right to speedy trial.

D. Prejudice to the Defendant

There are two types of prejudice which a defendant may experience, that is, prejudice to his person and prejudice to his defense. Prejudice to his person would take the form of oppressive pretrial incarceration leading to anxiety and concern. Prejudice to his defense might include key witnesses being unavailable. Impairment of defense is the most serious, "because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Barker, 407 US 514, 532.

Barker found no undue prejudice in ten months incarceration. Defendant’s 27 months incarceration certainly is too long unless otherwise justified.

There is no testimony relevant to prejudice to defendant’s defense because of the length of the case such as loss of witnesses, etc.

In sum, defendant suffered considerable personal deprivation by long incarceration, but it cannot be said that his ability to defend himself was in any significant way prejudiced.

E. Conclusion as to Speedy Trial

In attempting to balance the four factors and give each its due, one begins with the 27 months from arrest to start of trial strongly triggering concern about denial of a speedy trial. However, analysis of what happened during those 27 months supplies a good reason for most of the time spent except for an uncomfortable feeling that the appeal period was over long. If the defendant is entitled to relief because of denial of speedy trial he certainly cannot be deprived of such relief for failure to assert his rights because he asserted them timely and vigorously. Finally, on the matter of prejudice to defendant because of the length of time before his trial, the most important thing is that there is no evidence that a fair trial was jeopardized by delay, although obviously 27 months of incarceration is not an insignificant personal hardship.

In weighing all of these factors together, it must be concluded that the length of the trial was in large part the necessary result of the defendant properly pursuing his legal procedures. Because of the nature of the crime and in absence of evidence to the contrary, it must be assumed that the defendant was not a bailable subject. The necessarily protracted litigation and defendant’s non-bailable condition account for the length of his presentence incarceration. So there is no undue prejudice there and no prejudice to his defense was brought into evidence.

This balancing of factors results in a long, but largely an explainably long case with explainable personal hardship due to incarceration but without prejudice to defendant’s defense. Under these circumstances the processing of the case while not exemplary is not a case under Barker v Wingo, supra, warranting dismissal.

III. PRIOR SIMILAR ACTION

Defendant next claims that the failure of the trial court, in the absence of request, to give the jury a limiting instruction on the admission of two exhibits, a pill bottle containing lye pills and wrapper, that tended to indicate defendant made a prior attempt on the life of deceased, was reversible error.

Defendant’s argument has two separate parts. First defendant argues that as motive and intent were not in issue, it was error to introduce evidence of prior acts under MCLA 768.27; MSA 28.1050 to show defendant’s motive or intent. The second branch of the argument is that even if the evidence was admissible, the trial judge erred, even in the absence of request, in not instructing the jury as to the limited purpose for which such evidence was admissible.

A. Was the Evidence Admissible under MCLA 768.27; MSA 28.1050?

At the time of trial, the prosecutor offered as evidence Exhibits 14 and 15, being respectively a pill bottle labeled as tranquilizers though containing a caustic substance which had been transmitted through the mail to the deceased, and a piece of wrapping paper found on the shelf with the bottle which was on the bottle at the time it was received. The defendant raised objection to the admission of this evidence. The prosecution claimed that the evidence was to show intent, plan, and design. The trial judge ruled that it was admissible "under the statute having to do with defendant’s mode of intent in the absence of mistake or accident”. Over further objection of defendant, the expert witnesses for the prosecution testified that in their opinion the handwriting on the pill wrapper and the package wrapper that the bomb was delivered in was the defendant’s. The Court of Appeals affirmed the trial court’s ruling. They stated:

"It would seem to be reasonable under the statute to show, by previous acts, that defendant intended or planned to kill the deceased by sending some form of harmful article to her through the mail.” 32 Mich App 610, 625-626.

The crux of defendant’s argument was that since, admittedly, whoever sent the pills through the mail intended to do so, that no evidence to prove intention or motive was admissible. The trial court reasoned that to allow a defendant to admit intent on the part of some party (not defendant) and thus be able to bar the evidence would make the statute rather nonsensical.

The trial judge’s conclusion has support in Michigan case law. In People v Neaton, 294 Mich 134, 142; 292 NW 589 (1940) this Court held:

"By the great weight of authority, the prosecuting attorney was not precluded from introducing evidence in the regular way to establish all the material facts and circumstances set forth in the information, and he is not precluded from so doing by any admissions made by defendant or his attorney.”

Defendant by making bald admissions that someone intended to do the act could not shut out evidence by the prosecution that tended to show that defendant was the one who intended to do the act. Intent was in issue. Murder involves intent. People v Giacalone, 242 Mich 16; 217 NW 758 (1928). It was a material and relevant element in the instant case. Thus the cases cited by defendant are inapposite.

The general proposition that the motive or intent of the defendant may be shown by prior acts, even though these acts would constitute commission of another crime is supported by numerous cases.

The testimony of the handwriting experts linked defendant with the poison pills. That is, it was defendant’s act in sending the pills. This act was then admissible to show the intent to murder.

We hold that the trial judge did not err in allowing the pill bottle and wrapper into evidence for the purposes of establishing defendant’s intention of doing away with the deceased.

B. Was it reversible error for the trial judge not to give a cautionary instruction as to the limited admissibility of the evidence where no such instruction was requested?

Defendant claims that even if this evidence was admissible, it was reversible error for the trial judge not to limit its purpose and use, in the minds of the jury, to the question of intent.

However, defendant never requested a cautionary instruction, nor did he object to the instructions as given. He claims, nevertheless, that it was the duty of the trial judge to give a limiting instruction even in the absence of a request. He cites the dicta of Judge O’Hara in People v Kelly, 26 Mich App 148; 182 NW2d 8 (1970).

Our Court of Appeals has split on this issue even after the definitive Supreme Court ruling in People v Nawrocki, 376 Mich 252; 136 NW2d 922 (1965). See People v Harper, 39 Mich App 134, 137; 197 NW2d 338 (1972). Kelly held that while it may be preferable for the trial judge to give an instruction at the time of the introduction of the evidence there is no reversible error if the judge includes such an instruction in the final charge. But Nawrocki goes even further and holds that the trial judge is not required to give any limiting instruction sua sponte.

Here no instruction was ever requested by defendant nor did he offer objection to the final charge to the jury. As a result, no cautionary instruction was ever given. We hold that in the absence of request or proper objection under present Michigan case law, there is no absolute requirement that the trial judge give limiting instructions, even though such an instruction should have been given.

Therefore failure to instruct in this case where there was no request for such instruction and no objection to the failure to instruct was not reversible error.

IV. SEARCH AND SEIZURE

Defendant was arrested on October 11, 1967. On request by the police after arrest, he signed on the morning of that date a consent that his home be searched as follows:

"I, Enoch D. Chism, [Signed] having been informed of my constitutional right not to have a search made of the premises hereinafter mentioned without a search warrant, and of my right to refuse to consent to such a search, hereby authorize M. L. Myers, Post Office Inspector, and Leroy Steinbacher, of the Michigan State Police Dept., to conduct a complete search of my residence located at 14969 C Drive North & the curtilage & 1964 Ford Fairlane & 1965 Pontiac. The above named are authorized by me to take from my residence any letters, papers, materials or other property which they may desire.

"This written permission is being given by me to the above named voluntarily and without threats or promises of any kind.

"(Signed) Enoch Chism”

Prior to signing the consent he was fully advised of his rights via the "Miranda” warning, About 10 a.m. that morning his home was searched by a team of officers. Just prior to the commencement of the search the officers also obtained a written consent to search from defendant’s wife. They then found and removed a roll of masking tape, a red marking pencil, and a Fiske "C” battery.

On the next day, October 12, 1967, at about 4 p.m., two police officers returned to the defendant’s home and requested that defendant’s wife turn over to them certain cancelled checks of defendant and his daily record book. They had no search warrant. These items had been discovered the day before in the search but were not seized. Mrs. Chism produced and delivered the items without comment.

A motion to suppress the fruits of these searches was denied December 10, 1969. The defendant raises the following several related arguments as to both of these incidents.

A. Validity of Defendant's October 11 Consent

Defendant argues that his consent was ineffectual, even though the Miranda warnings were given, because he was not advised that a search could not be made without his consent unless a warrant was issued, that an impartial magistrate must issue the warrant, and of the difference in scope between a warrant search and a consent search.

Generally speaking, a warrantless search and seizure is unreasonable per se and violative of the Fourth Amendment of the United States Constitution and 1963 Const, art 1, § 11 of the state constitution.

However, it is quite clear that the right to be secure from warrantless searches may be waived by defendant’s valid consent. Martucci v Detroit Commissioner of Police, 322 Mich 270; 33 NW2d 789 (1948). We said in People v Kaigler, 368 Mich 281, 294; 118 NW2d 406 (1962):

"[S]uch waiver or consent must be proved by clear and positive testimony and there must be no duress or coercion, actual or implied, and the prosecutor must show a consent that, is unequivocal and speciñc, freely and intelligently given.” (Emphasis in original case.)

Whether a consent is valid is a matter of fact based upon the evidence and all reasonable inferences to be drawn from it. The trial judge, exercising his discretion, found that the consent was valid. We hold that his decision was not clearly erroneous.

In People v Zeigler, 358 Mich 355, 364-365; 100 NW2d 456 (1960) this Court stated:

"And so, with respect to incriminating evidence, other than confessions, obtained by search and seizure, under a conceivable showing of facts, such as, inter alia, that the accused was first advised of his rights, informed that he need not submit to a search and that, if he did, the fruits thereof would be used in evidence against him, his consenting to the search and seizure may well, in the absence of contrary indications, be held to be voluntary, not an involuntary act secured under coercion, and, hence, a waiver of his constitutional rights, rendering such evidence admissible.”

As stated above, the defendant was given the Miranda warnings informing him of his rights. He stated that he understood these rights.

Further, the written consent verifies that defendant was informed of his "constitutional right not to have a search made of the premises hereinafter mentioned without a search warrant” and of his "right to refuse to consent to a search.”

Defendant was informed as to the purpose of the search and that the fruits of the search might be used against him in evidence. The record is also replete with evidence that the consent was freely, voluntarily, and unequivocally given with no hint of coercion or duress._

As to this first search, the wife’s consent was irrelevant due to the valid consent of the defendant and we need not pass upon its validity. Thus the consent was valid and the evidence seized on October 11, 1967 was admissible. The trial judge committed no error.

B. Validity of the October 12 Seizure of the Checks and Notebook

Did the defendant’s valid consent of October 11 carry over to authorize the seizure on October 12?

On October 12, 1967, Fred Ritchie of the Calhoun County Sheriff Department and Detective Leroy Steinbacher of the Michigan State Police returned to the Chism home. Mrs. Chism was at home and admitted the officers into the house. They told Mrs. Chism that there was a notebook of defendant’s and some of his cancelled checks that they would like to have. They told her these items were in the bedroom. (On the previous day’s search one of the officers had found a notebook of defendant’s and some of his cancelled checks in the bedroom in a drawer but had failed to seize them. The officer then informed Officer Ritchie of this fact after they had left the house.) Officer Ritchie then asked if Mrs. Chism would get those specific items and turn them over. Mrs. Chism then left the room and returned with the items to the waiting officers.

The Court of Appeals declined to hold that the consent given by defendant for the October 11 search was sufficient to render constitutional the seizure the following day. It stated:

"When consent is given to search an area, it does not mean the constitutional protection against unreasonable searches and seizures has been waived forever.

"Indeed, we think there is a difference between a continuing or subsequent search on the same day as in People v Nawrocki (1967), 6 Mich App 46 [150 NW2d 516], cert den 389 US 942 (88 S Ct 304, 19 L Ed 2d 296 [1967]), and one on a subsequent day. Thus, the checkbook and notebook seized in the second search were improperly seized and not admissible as evidence. Mapp v Ohio (1961), 367 US 643 (81 S Ct 1684, 6 L Ed 2d 1081, 84 ALR2d 933).” 32 Mich App 610, 632.

In deciding whether this second seizure resulted in admissible evidence, the actual scope of * the written consent must be determined. The consent, freely and voluntarily made by defendant, authorized Detective Leroy Steinbacher of the Michigan State Police and the Postal Inspector M. L. Myers "to conduct a complete search of my residence * * * to take from my residence any letters, papers, materials or other property which they may desire.”

Although defendant was not informed that handwriting samples would be looked for, he was informed that anything found as a result of the search would be used against him in evidence. Defendant’s reply to this was that he had nothing to hide. Thus the officers went to the house on October 11 with the purpose of finding something that would be pertinent to the crime.

Therefore the consent was broad in the sense that it "authorized a complete search * * * of any * * * property.” The items seized on October 12 had been found in the search on October 11 and could have then been seized. There was no general search on October 12 as the officers knew where the items were to be found. The officers were merely completing the search which had begun on the previous day. The defendant’s consent, under these narrow facts, might be construed to be broad enough to authorize the seizure on October 12, but it is unnecessary for this Court to so hold, because it is clear that the wife had the power to consent to, and did consent to, the second search.

Could defendant’s wife consent to the seizure of October 12?

When the officers returned on October 12, they asked the wife if she would get the checks and the notebook which had been seen on the previous day’s search in the bedroom. She did so with little or no conversation with the officers.

Defendant argues that his wife could not waive his rights by delivering the specified items to the police officers. The Court of Appeals did not base their decision of the seizure issue on the wife’s consent. Following People v Flowers, 23 Mich App 523; 179 NW2d 56 (1970) the Court of Appeals stated in dicta that the wife was an outsider and could not waive the right of a charged party. 32 Mich 610, 631.

There is no Michigan case directly in point. In People v Weaver, 241 Mich 616; 217 NW 797 (1928), the question was whether the constitutional right of the defendant wife to immunity from the unreasonable search of her home, one owned by her, may be waived by her husband. In holding that the evidence obtained in the search should have been suppressed, the Court stated:

"Defendant [wife] owned this property, was there conducting a boarding and rooming house, and, so far as this record discloses, was supporting herself. * * * To hold that the waiver signed by her husband nearly two years before prevents her from here asserting her constitutional rights would place such rights into the care and keeping of the husbands of all the married women of the state.” 241 Mich 616, 623.

In People v Azukauckas, 241 Mich 182; 216 NW 408 (1927) the question was whether defendant, a bootlegger, could object to a warrant where the householder to whom liquor had been delivered as part of a sale did not. Certain Court of Appeals cases relied on by defendant will be considered later. Both of these cases are distinguishable on the facts from the instant case.

Authority in other states is widely split on the question of whether a wife can consent to a search of the husband’s premises and a seizure of his property.

The United States Supreme Court has not yet passed on this particular question. In Amos v United States, 255 US 313, 317; 41 S Ct 266; 65 L Ed 654 (1921), the Supreme Court held that a wife could not consent to a search of her husband’s premises when the consent was a product of coercion. It stated:

"We need not consider whether it is possible for a wife, in the absence of her husband, thus to waive his constitutional rights, for it is perfectly clear that under the implied coercion here presented, no such waiver was intended or effected.”

An additional highly relevant factor in this case is that at the time of the search and seizure, the defendant and his wife owned the property jointly. This leads to the question of whether persons with at least equal interests in the premises or property with the one asserting the constitutional immunity against unreasonable searches and seizures may consent to a search of such premises or property notwithstanding the husband-wife relationship.

There are four recent cases in which the United States Supreme Court has considered the matter of consent to search by some one other than the defendant but a person who has some proprietary interest in the place and sometimes in the object searched or searched for. Chapman v United States, 365 US 610; 81 S Ct 776; 5 L Ed 2d 828 (1961); Stoner v California, 376 US 483; 84 S Ct 889; 11 L Ed 2d 856 (1964); Bumper v North Carolina, 391 US 543; 88 S Ct 1788; 20 L Ed 2d 797 (1968); Frazier v Cupp, 394 US 731; 89 S Ct 1420; 22 L Ed 2d 684 (1969).

These four cases along with Amos, supra, establish four guidelines, two of which are pertinent in the instant case:

1. If the search is coerced, the search and its fruits are illegal whatever the other circumstances are. Bumper, supra, and see also Amos, supra.

2. An owner may not give consent to search premises of a tenant unless contractually provided for. Chapman, supra, and Stoner, supra.

3. An owner may give consent to search of a room in a house which is commonly used and not the part of the house assigned to defendant, particularly if the object of the search is also commonly used. Dicta in Bumper, supra.

4. The owner of a house may give consent to search a container (a duffel bag) jointly used by the owner and the defendant and left in the householder’s house. Frazier, supra.

In Bumper v North Carolina, 391 US 543; 88 S Ct 1788; 20 L Ed 2d 797 (1968), the Supreme Court dealt with the problem of a consent given under coercive circumstances. In this case, petitioner lived with his grandmother in a house owned by her. She also owned the rifle that was seized. The Court left no doubt that the grandmother, in the absence of coercion, could have consented to the search. It stated:

"Mrs. Leath owned both the house and the rifle. The petitioner concedes that her voluntary consent to the search would have been binding upon him. * * * The rifle was used by all members of the household and was found in the common part of the house.” 391 US 543, 548, fn 11.

MCLA 768.27; MSA 28.1050 provides:

"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”

Upon direct examination of a toxocologist, the prosecution asked him what the pills in the bottle contained.

"A. I made an analysis of the contents * * * , and being very caustic it appears it was sodium hydroxide.

"Q. I see. Is that sometimes referred to as lye?

"A. Yes.”

Though it was claimed by defendant that it is unclear as to whether the bottle came in this particular wrapper, there was conclusive testimony that this was in fact the wrapper. One patron of the restaurant testified that she had been present the day the pill package arrived and had seen deceased open it. She stated, "|T|t looks like the paper that was wrapped around a bottle of pills.” Also, a policeman who gathered this evidence from the cafeteria after the explosion testified, after identifying the bottle and wrapper, that "[t]his is a small glass bottle which was contained within the brown paper wrapper that I located in the kitchen of the Tasty Cafe.”

Both experts testified that the handwriting on the pill -wrapper and package wrapper and other -writing specimens of defendant matched. That is, they were all written by one and the same person.

See, for example: People v Nawrocki, 376 Mich 252; 136 NW2d 922 (1965) (passing of other bad checks); People v Allen, 351 Mich 535; 88 NW2d 433 (1958) (proof of previous safe-breaking); People v Johnston, 328 Mich 213; 43 NW2d 334 (1950) (other acts of bribery and conspiracy); People v Wright, 315 Mich 81; 23 NW2d 213 (1946) (proof of previous holdup as evidence of intent to rob); People v Fleish, 306 Mich 8; 9 NW2d 905 (1943) (other instances of receiving stolen property).

Judge O’Hara after discussing the other Court of Appeals cases stated:

"We hold failure in this case to give instruction immediately upon admission of the testimony was not reversible error. We hold not to give the instruction at all, whether requested or not, is reversible error.” 26 Mich App 148, 159.

In the Supreme Court, People v Kelly, 386 Mich 330; 192 NW2d 494 (1971), Judge O’Hara’s dicta was not repeated and the affirmation of the Court of Appeals with this dicta only noted there was a final covering instruction.

For cases requiring instruction though no request see: People v Askar, 8 Mich App 95, 101; 153 NW2d 888 (1967); People v Shaw, 9 Mich App 558, 566; 157 NW2d 811 (1968); and People v Camel, 11 Mich App 219, 222; 160 NW2d 790 (1968).

For cases not requiring instruction if no request see: People v Manchester, 235 Mich 594, 595-596; 209 NW 815 (1926); People v Anderson, 13 Mich App 247, 250; 163 NW2d 793 (1968); People v Mauch, 23 Mich App 723, 728; 179 NW2d 184 (1970); People v Stevens, 25 Mich App 181, 183; 181 NW2d 31 (1970); People v Albert White, 27 Mich App 432, 434; 183 NW2d 606 (1970); and People v McGath, 31 Mich App 351, 359; 187 NW2d 904 (1971).

The Supreme Court has under consideration a General Court Rule to cover this whole matter.

"Q. And according to your best recollection, Mr. Wood, what was the defendant advised as to his Constitutional rights?

"A. He was told that of course, he was under arrest, that he had the right to remain silent, he had the right to have a lawyer present anytime that he was questioned, and if he could not afford a lawyer, a lawyer would be appointed to advise him. He was advised that anything that he might say could be used against him in any Court proceedings, and that he had the right to stop our asking questions at any time he chose.”

Hearing on Suppression of Evidence September 18,1969, p 4.

"10-11-67

"I Bernice Chism give my permission to Sgt Fred L Ritchie and other law enforcement officers to search my house located at 14969 C Drive N. Also my Vehicle 1965 Pontiac license #PR4839.

"Bernice Chism” [Signed]

Mascolo, Inter-Spousal Consent to Unreasonable Searches and Seizures: A Constitutional Approach, 40 Conn BJ 351, 357 (1966).

Hearing on Motion to Suppress, September 18,1969, p 4-5.

is Though the record shows that the defendant was not informed of the role of a search warrant, he was made fully aware by the prosecutor that he did not have to consent to the search and that he had every right to refuse if he was so inclined. Hearing on Suppression of Evidence, September 18,1969, p 133.

All Zeigler requires is that the defendant be informed that "he need not submit to a search”. It does not require a fine explanation of the role of search warrants. See Consent Searches: A Reappraisal alter Miranda v. Arizona, 67 Colum L Rev 130, 132, fn 14 (1967).

In response to a prosecution question to a police officer as to what defendant had been advised of the officer replied:

"As I recall, you [the prosecutor] advised him that anything that was found as a result of this search would be used against him in evidence, and he consented. He said he had nothing to hide from anybody, * * * .” Final Hearing on Motion to Suppress, November 13,1969, p 5.

"Q. Did you tell him why [you wanted to go out and search his home]?

"A. Yes.

"Q. What reason did you give him?

"A. We told him we wanted to look for items that could be used in construction of a device.

"Q. And his response was what?

”A. He had nothing to hide.

”Q. You made no mention of looking for any handwriting?

"A. Not as I recall, no sir.”

Final Hearing on Motion to Suppress, pp 9,11.

The following questions and answers depict a scene free from coercion:

"A. We offered him coffee * * * , and he refused.

”Q. Was the defendant handcuffed?

"A. Not when we interrogated, no sir, interviewed him. "Q. Were any weapons displayed?

"A. No sir.

". Do you know of any deceit or trickery practiced on the defendant to get his consent?

'A. No sir.”

Final Hearing on Motion to Suppress, pp 8,13.

"Q. Did this conversation take place in a cell or where?

'A. It took place at where I believe is set aside as the Sheriff’s living quarters in the Second Floor of the County jail.

"Q. Was any law enforcement officer in uniform present?

"A. No, sir.

"Q. What did you ask defendant specifically, whether you could go out to his home and search the premises?

"A. Yes, we did.

"Q. How many times did you ask him?

"A. We asked him once.

"Q. Do you remember what his response was?

"A. His response was that we certainly could; he had nothing to hide.

"Q. Do you recall what his response was at the time when you asked him, 'Would you talk to us about it?’

'A. He said he would talk to us about it, yes.

”Q. Did you proceed to discuss the various aspects as known to the police to Mr. Chism?

"A. Yes.

"Q. Did Mr. Chism at that time respond to the questions?

"A. Yes, sir.

"Q. Did he have any difficulty in responding to the questions?

'A. No.

”Q. Did he accept the questions and answer them freely and voluntarily?

"A. Yes, sir.

"Q. Did Mr. Chism at any time by word or deed or anything, or any expression, indicate he was being coerced in any manner?

"A. No, sir.

”Q. Was he crying?

"A. No.

"Q. Did he show any signs of emotional symptoms?

"A. None, except he appeared to be somewhat nervous.

"Q. Was he extremely excited?

"A. No, sir.”

Hearing on Motion to Suppress, September 18,1969, pp 132-136.

And also when defendant testified at trial he portrayed a coercion free atmosphere:

"Q. While I am on that line of questioning, Mr. Chism, I show you Exhibit 37, did you sign that voluntarily?

"A. Yes sir, they asked me could they search my home and car, they said it would be necessary for me to sign this paper for those officers in my presence to search my home.

"Q. So you voluntarily consented to that, signed that authorization?

"A. I signed it authorizing the people in my presence to search my home. I didn’t authorize the State of Michigan to go through my home.

"Q. What do you mean by that?

"A. These officers seemed like they were awful, pretty nice people, they asked me could they search my home, I said I didn’t care if they searched my home.”

For a textual treatment of the law of consent to searches and seizures see:

Tiffany, McIntyre, and Rotenberg, Detection of Crime: Stopping & Questioning—Search & Seizure—Encouragement & Entrapment (Little, Brown, and Co ed 1967), ch 10, pp 15&-170; and Varón, Searches, Seizures & Immunities (Bobbs-Merrill ed 1961), ch 4, pp 226, 232 et seq. and ch 8, pp 414, 429-450.

Hearing on Suppression of Evidence, September 18, 1969, pp 19, 24-28, 97-98.

The Court of Appeals stated:

"The wife’s consent can be said to have neither added to nor detracted from the search.” 32 Mich App 610, 631.

See 31 ALR2d 1078, 1091. See also Hall, Kamisar, LaFave and Israel, Modem Criminal Procedure (West ed 1969), ch 5, pp 295-296; Mascolo, Inter-Spousal Consent to Unreasonable Searches & Seizures: A Constitutional Approach, 40 Conn BJ 351 (1966); and Varon, supra, pp 430-432.

See People v Kaigler, 368 Mich 281; 118 NW2d 406 (1962) for a situation involving explicit coercion.

”Q. Do you own any real estate?

"A. Her and I own it together.”

Hearing on Appointment of Counsel, October 18,1967, p 4.

A similar exchange took place at a second appointment of counsel hearing on October 27,1967. The exchange, at p 5, proceeded:

"Q. Now, how did you own the property in question?

"A. We owned it jointly.”

Several jurisdictions have allowed persons to consent to searches of property or premises which they owned or had equal rights in as to use or occupation. See 31 ALR2d 1079,1080,1086.

ARKANSAS Maxwell v State, 236 Ark 694; 370 SW2d 113 (1963). (Held that a parent could consent to a search of the premises owned by him even if the search resulted in the seizure of incriminating evidence as to their children.)

COLORADO Spencer v People, 163 Colo 182; 429 P2d 266 (1967). (Owner of the premises may consent to a search of defendant roomer’s bedroom.)

DELAWARE Jenkins v State, 230 A2d 262 (Del, 1967); aff'd 395 US 213; 89 S Ct 1677; 23 L Ed 2d 253 (1969). (Where a lessee and defendant are joint occupants, the lessee as the sole legal occupant had superior rights of possession and control and could give consent to a search of the premises including a jointly shared bedroom.)

FLORIDA Tomlinson v State, 129 Fla 658; 176 So 543 (1937). (Search of son’s bedroom in father’s house with his consent, which resulted in evidence used against child, was lawful.)

IDAHO State v Hagan, 47 Idaho 315; 274 P 628 (1929). (Search of barn on mother’s premises with her consent was lawful where defendant’s possession of the barn was in subservience and submission to the power, authority, ownership and possession of the mother.)

ILLINOIS People v Shambley, 4 Ill 2d 38; 122 NE2d 172 (1954). (Where a house is jointly owned and occupied by a husband and wife, the wife can in her own right have the police come into the home and search for the weapon the husband had used to assault her. The weapon was found in the garage.)

INDIANA Shade v State, 196 Ind 665; 149 NE 348 (1925). (The owner of land can give permission to police to go onto the land and search for violations of the prohibition law.)

KENTUCKY Morris v Commonwealth, 306 Ky 349; 208 SW2d 58 (1948). (Head of the household or the one in charge of the premises may consent to a search. The evidence was found in the kitchen.)

MAINE State v MacKenzie, 161 Me 123; 210 A2d 24 (1965). (Tenant could consent to a search of the premises which leads to evidence against the defendant.)

MARYLAND McGuire v State, 200 Md 601; 92 A2d 582 (1952), cert den 344 US 928; 73 S a 497; 97 L Ed 714 (1953). (Manager of an apartment and lessee of apartment could consent to search in which evidence against defendant was found in the apartment' and the defendant was a mere interloper who had no interest in the premises.)

MICHIGAN People v Azukauckas, 241 Mich 182; 216 NW 408 (1927). (The householder could consent to a search of premises he owned. The property seized was not owned by defendant. The bam the property was seized in was not in the exclusive use or possession of defendant.)

MINNESOTA State v Kinderman, 271 Minn 405; 136 NW2d 577 (1965); cert den 384 US 909; 86 S Ct 1349; 16 L Ed 2d 361 (1966). (Defendant’s father who owned home could consent to search of son’s bedroom.)

MISSISSIPPI Gordon v State, 160 So 2d 73 (Miss, 1964). (Stepfather’s consent to the search of his premises lawful and the police Could enter and seize defendant stepson who was hiding there as well as items of evidence.)

MISSOURI State v Anderson, 384 SW2d 591 (Mo, 1964). (Parent-child consent held right to consent is a personal one to the parent renter of the property.)

NEW YORK People v Austin, 53 Misc 2d 963; 280 NYS2d 433 (1967). (Defendant’s mother who owned home where he lived, but didn’t pay rent, could consent to a search of the cellar over which he had no exclusive use or control and contraband seized there was admissible against defendant.)

NORTH CAROLINA State v Fowler, 172 NC 905; 90 SE 408 (1916). (Sisters of defendant who were in charge of the premises where defendant also lived could consent to a search of the premises.)

OHIO State v Carder, 9 Ohio St 2d 1; 222 NE2d 620 (1966). (Parent who owns or controls home in which child resides can consent to search of premises.)

State v Broadhurst, 184 Or 178, 250-251; 196 P2d 407 (1948), cert den 337 US 906; 69 OREGON S Ct 1046; 93 L Ed 1718 (1949). (Relatives to whom owner had given use and occupancy of home could invite in the police to search owner defendant’s room.)

PENNSYLVANIA Commonwealth v McKenna, 202 Pa Super 360; 195 A2d 817 (1963). (Defendant’s mother may consent to search of premises which she owns and where defendant lives.)

RHODE ISLAND State v Cairo, 74 RI 377; 60 A2d 841 (1948). (Search of cellar used in common by defendant and his wife and owned jointly by defendant and wife could be consented to by the wife.)

TENNESSEE McGee v State, 451 SW2d 709 (Tenn Crim App, 1969). (Joint user of premises may consent to a search. Defendant lived at premises as a member of the family though in fact he was not and the family could consent to the search.)

TEXAS Nagel v State, 126 Tex Crim 265; 71 SW2d 285 (1934). (One who has no right of ownership or control in premises can’t complain of search permitted by owner.)

VIRGINIA Rees v Commonwealth, 203 Va 850; 127 SE2d 406 (1962); cert den 372 US 964; 83 S Ct 1088; 10 L Ed 2d 128 (1963). (Parents of defendant could consent to a search and gun found in the attic could be used against defendant who did not regularly live in the house.)

WEST VIRGINIA State v Plantz, — W Va —; 180 SE2d 614 (1971). (Search of grandparent’s house where defendant had lived temporarily, based on their consent was valid since the grandparents owned and controlled the premises.)

WISCONSIN Embry v State, 46 Wis 2d 151, 159; 174 NW2d 521 (1970). (Two persons with equal rights to use or occupancy of premises may each give consent to a search of the premises.)