failure to object or request a correct instruction pertaining to the identity of defendant
How later courts described this case
- failure to object or request a correct instruction pertaining to the identity of defendant
- “We are convinced that the errors complained of were such as to deprive defendant of a fair trial ‘by an impartial jury[,]’ or, to use the words of the statute [MCL 769.26], ‘resulted in a miscarriage of justice.’ ”
- judge repeatedly misidentified the joint defendants
- "Defendant has a right to have a properly instructed jury pass upon the evidence"
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by People v. Carines, 460 Mich. 750 (1999)
148 NW2d 784 (1967) (“We are convinced that the errors complained of were such as to deprive defendant of a fair trial ‘by an impartial jury[,]’ or, to use the words of the statute [MCL 769.26], ‘resulted in a miscarriage of justice.’ ”) (citation omitted), abrogated on other grounds by People v Carines, 460 Mich 750
The opinion
Black, J.
{dissenting). I stand by the opinion of the Court of Appeals ( 1 Mich App 261 ) and therefore vote to affirm.
Controlling here is that provision of the code of criminal' procedure of 1927, enunciating as it does our State’s fully matured appellate policy that harmless error in criminal cases is, just as-in civil cases, *718 nonreversible error. The provision (CL 1948, § 769.26 [Stat Ann 1954 Rev § 28.1096]) : *
“Sec. 26. No judgment or verdict shall he set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”
The Court of Appeals from the inception of that Court’s jurisdiction has neither overlooked nor ignored the quoted provision. See People v. Willis, 1 Mich App 428 ; People v. Carr, 2 Mich App 222 ; People v. Frechette, 3 Mich App 249 ; People v. Loncar, 4 Mich App 281 ; People v. Welsh, 4 Mich App 395 .
My reading of that part of the record on strength of which defendant criticizes the doings of the trial judge, all of which portrays what took place prior to the “taking” of the jury’s verdict, is convincing that the judge committed no more than harmless error; also that it does not “affirmatively appear that the error complained of has resulted in a miscarriage of justice.”
Kelly and O’Hara, JJ., concurred with Black, J.
Brennan, J., took no part in the decision of this case.
Citing this provision, former Justice Talbot Smith wrote in June of 1960 for the Court (People v. Ritholz, 359 Mich 539, 559 ) :
“Technical error, however, is not our test. We must be persuaded that the errors complained of were so gross as to have deprived defendant of a fair trial, that his conviction was, in truth, a miscarriage of justice,”