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360 Mich. 219

103 N.W.2d 435

People v. Nick

Michigan Supreme Court

Decided June 7, 1960

Michigan Supreme Court · decided 1960-06-07

Cited by 5 later decisions — most recently December 2008

1 federal appellate · 2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1960-06-07

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Black, J.

¶1(concurring). Whatever the practice may be in other jurisdictions, our statute commits to judicial discretion the matter of temporary separation of jurors between the time of jury-instruction and that of verdict-rendition (CL 1948, § 768.16 [Stat Ann 1954 Rev § 28.1039]). Thus the ordinary presumption of prejudice, arising from an unauthorized dispersion or separation of jurors during the period of deliberation, did not arise in this case.

¶2The incidents related in the opinion of Mr. Justice Carr were unfortunate. They do not, however— considering our general requirement that questions must be raised and saved for review — , constitute reversible error. On this distinctive record of execrable Oakland county trial facilities we should not substitute our distant judgment for that of a trial judge whose knowledge of the necessities of temporary dispersal or separation is better than ours, especially when that judge has certified after record-detailed investigation that “there was no abuse of the jury system in this case, that there were no improper influences brought to bear upon the jury.” This is especially so when the real point on which appellant relies, that of alleged duty to interrogate and act upon the results of interrogation, was not brought up in time.

¶3*236Counsel made no motion, formal or informal, until the verdict of the jury was delivered and recorded; It was then too late for that which he says the trial judge should have done. No juror is subject to interrogation for his delivered and recorded verdict (CL 1948, § 618.41 [Stat Ann § 27.1021]; Welch v. Tribune Publishing Co., 83 Mich 661 [11 LRA 233, 21 Am St Rep 629]), which is to say that any attempt to question members of this Nick jury, after verdict as suggested by counsel (whether done by the trial judge or anyone else), would constitute a violation of the statute.

¶4I would affirm on ground that counsel failed to move, either for mistrial or for judicial questioning of the jury, while time yet remained for proper ascertainment whether the trial should proceed to verdict or declaration of mistrial. The situation would be otherwise, of course, if counsel had no knowledge, prior to verdict, of the salient facts of which he complains. No such situation appears here, however.

Kavanagh and Souris, JJ., concurred- with Black, J.
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