
    PEOPLE v. BESONEN.
    1. Criminal Law — Sufficiency of Evidence — Opportunity—Ealse Exculpatory Statements — Second-Degree Murder.
    The people must show more than mere opportunity to commit a erime, coupled with false exculpatory statements, in order to justify a conviction of second-degree murder (CL 1948, § 750-.314).
    References for Points in Headnotes
    
       20 Am Jur, Homicide § 455 et seq.
    
    
       21 Am Jur 2d, Criminal Law § 445 et seq.
    
    
       21 Am Jur 2d, Criminal Law § 440
    20 Am Jur, Evidence § 499
    
       20 Am Jur, Evidence §§ 498, 499.
    Admissibility of pretrial confession in criminal ease — Supreme Court eases. 1 L ed 2d 1735, 4 L ed 2d 1833, 12 L ed 2d 1340.
    
       53 Am Jur, Trial § 459.
    
       42 Am Jur, Prosecuting Attorneys § 20.
    
      2. Same — Circumstantial Evidence — Innocent Man — Deception.
    An innocent man, when placed by circumstances in a condition of suspicion and danger, may resort to deception in the hope of avoiding the force of such proofs.
    3. Same — Evidence—Sufficiency.
    It takes something more than a robust suspicion to convict a defendant in a criminal case.
    4. Same — Preliminary Examination — Time.
    Magistrates in this State, for the purposes of prompt examination of apprehended persons, are on legal duty at all times, including Sundays and holidays (CL 1948, §§ 764.13, 764.26).
    5. Same — Exculpatory Statement — Unlawfully Prolonged Detention — Due Process.
    Admission in prosecution for second-degree murder of exculpatory statement held, a denial of due process, whore defendant was interrogated intermittently for 5 days, was brought to court on the 4th day on writ of habeas eoipus, disposition of the writ was adjourned for 24 hours and ultimately dismissed on the 6th day, when defendant was arraigned on warrant charging seeond-degree murder, there having been an unwarranted delay in defendant’s detention without proven justification including a showing that not one of the many magistrates of a populous eounty was available (CL 1948, §§ 750.317, 764.13, 764.26).
    6. Same — Voluntary Statement — Unlawful Detention — Due Process.
    An unnecessary, and so unlawful, delay in bringing an arrested person before a magistrate as required by statute when done for interrogatory purposes and without proven justification of the delay, renders involuntary, and so inadmissible, whatever confessions, admissions and statements, whether inculpatory or exculpatory, the detained person may have made while so unlawfully detained (CD 1948, §§ 764.13, 764.26).
    7. Same — Due Process — Self-Incrimination—Inculpatory or Exculpatory Statements.
    The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner and does not distinguish degrees of incrimination, and no distinction may be drawn between inculpatory statements and those alleged to be merely exculpatory.
    
      8. Same — Inadmissible Testimony — Reversible Error.
    Attempt by prosecutor to interrogate defendant as to matters previously ruled inadmissible by the eourt in prosecution for seeond-degree murder held, reversible error, where the prosecutor knew that he eould not prove the very facts which his questions assumed (CL 1948, § 750.317).
    9. Same — Prosecutor—Duty in Criminal Case.
    A prosecutor’s interest in a criminal prosecution is not that he shall win a ease, but that justice shall be done, that guilt shall not escape or innocence suffer.
    10. Same — Duty op Prosecutor in Criminal Case.
    It is as much a prosecutor’s duty in a criminal prosecution to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
    11. Same — Conduct op Prosecutor.
    Improper suggestions, insinuation, and assertions of personal knowledge by a prosecutor are apt to carry much weight against the accused when they should properly earry none because the average jury has confidence that the obligations, which so plainly rest upon a prosecutor, will be faithfully observed.
    12. Same — Cross-Examination—Improper Questions — Objection.
    Cross-examination of defendant, charged with second-degree murder, relative to alleged ill-feelings between defendant and decedent, which subject had previously been ruled inadmissible and which had the effect of placing in the minds of jurors some idea that defendant may have quarreled with decedent, even though the evidence showed defendant and decedent were on friendly terms, constituted prejudicial error notwithstanding defendant answered all the questions in the negative and the failure of defendant’s counsel to object to such line of questioning did not nullify the error (CL 1948, § 750.317).
    Appeal from Recorder’s Court of Detroit; Groat (Gerald W.), J.
    Submitted Division 1 February 10, 1966, at Detroit.
    (Docket No. 37.)
    Decided September 13, 1966.
    Woodrow Besonen was convicted of second-degree murder. Defendant appeals.
    Reversed and remanded for new trial.
    
      
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Samuel H. Olsen, Prosecuting Attorney, Samuel J, Torina, Chief Appellate Lawyer, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.
    
      John D. O’Connell, for defendant.
   J. H. Gillis, P. J.

Upon leave granted by the Supreme Court the defendant, Woodrow Besonen, prosecutes this appeal from his conviction on September 24, 1959, of second-degree murder.

The body of George Sweigert was found partly submerged in the laundry tubs in the basement of his home on the morning of February 6, 1959. He was killed by a blunt instrument that was used'to inflict multiple compound fractures of the skull and bones of the face. A bloodstained ball-peen hammer was found near the body. There was a considerable amount of blood on the basement floor and a streak of blood leading from the stairway to the laundry tubs. The first floor had been ransacked by either a burglar or someone wanting it to appear that a burglary had occurred.

An autopsy was performed late on February 6th, from which the medical examiner determined the time of death to be 9 p.m. on February 5th, plus or minus 3 to 4 hours. Sweigert had a 6:30 p.m. appointment with his doctor, which he did not keep. The defendant and Sweigert were close friends. They had worked for the same employer for several years and for some time had been driving to work together. Normally the defendant would come to Sweigert’s home about 6:45 in the morning and ride to work in Sweigert’s car. They usually would arrive at work at about 7 :20.

On February 5th the defendant and Sweigert left work at 4:30 p.m. and went to a bar where they had a couple of drinks. They left the bar together, apparently on friendly terms, and were seen outside Sweigert’s home about 5:15 p.m. Defendant testified that he immediately drove home, but this was contradicted by testimony of a neighbor who said he saw the defendant standing by his car while Sweigert assisted a lady whose automobile was stuck on the ice. There was no evidence that the defendant entered Sweigert’s home nor at any time was there testimony that the defendant and Sweigert were on anything but friendly terms.

On February 6th the defendant arrived at work about 7 a.m. He testified that he arrived early because he had to put up tarps that day before work could begin. The defendant told fellow workers that he had gone by Sweigert’s home, knocked on the door and “got no answer.” There were no lights on and he left and came to work in his own car. After he had been on the job approximately half an hour, the defendant called the general superintendent and told him he had gone to Sweigert’s home “and he knocked on the door and he didn’t get no answer.”

That afternoon the body was discovered. The defendant was interviewed at his home by detectives and when they “didn’t get a satisfactory answer” from the defendant they placed him under arrest.

The defendant was questioned intermittently that afternoon and evening and during the next day (February 7). That evening at about 10:30 defendant’s attorney came to police headquarters. According to the examination testimony of a police officer, the attorney was not refused permission to see the defendant, but it was suggested that since the hour was late he should come back on Sunday and that this was agreed to by the attorney.

During the investigation, the clothing worn by the defendant on the day the offense occurred was examined for bloodstains. On the inside left pant leg a bloodstain 1/32 of an inch in diameter was found. Due to the size of the stain, it was marked “insufficient for human blood type identification” by the examiner at the Detroit police department scientific laboratory.

On February 9, 1959, the defendant was brought to court on a writ of habeas corpus. Disposition of the writ was adjourned for 24 hours; adjourned on February 10th for an additi onal 24 hours; and ultimately dismissed on February 11th, when the defendant was arraigned on a warrant charging second-degree murder. Approximately two hours after the first adjournment, the defendant made a statement which was stenographically recorded and read into evidence at defendant’s trial. During the trial the defendant testified in his own behalf. The discrepancies in his statements to the police, and to coworkers, and his trial testimony were fully explored on cross-examination.

The foregoing recital of facts indicates the nature of the people’s case against the defendant. The people sought to prove that the defendant was at Sweigert’s home as late as 5:15 on the afternoon of the 5th; that Sweigert died at 9 p.m., plus or minus 3 to 4 hours; and that defendant failed to report to the authorities when he saw evidence of foul play at the decedent’s home on the morning of the 6th.

The sufficiency of the evidence is not raised in this appeal. We do not, therefore, decide whether the evidence was sufficient to justify conviction. We discuss the evidence only to show that the case against the defendant was circumstantial and slight. Defendant’s claims of error will be viewed by this Court in that light. Cf. Fiswick v. United States (1946), 329 US 211, 217, 218 (67 S Ct 224, 91 L ed 196).

The defendant was arrested Friday afternoon, questioned that day and the next, gave conflicting stories, and still was not arraigned.* * There is a dearth of evidence that the defendant was represented by or advised of his rights to an attorney prior to or during any of these statements made on February 6th or 7th. Even allowing a reasonable time to investigate defendant’s statement, there is no excuse for failing to arraign the defendant Saturday night or Sunday as then required by CL 1948, §764.13 (Stat Ann 1954 Rev § 28.872), and CL 1948, § 764.26 (Stat Ann 1954 Rev § 28.885).

“Magistrates of Michigan are * * * on legal duty at all times; Sundays, holidays or no.” People v. Hamilton (1960), 359 Mich 410, 417.

The people argue that the statements obtained from the defendant from the time of his arrest on February 6th until arraignment on February 11th were not confessions but exculpatory statements and were not, therefore, within the rule of People v. Hamilton, supra. We do not read Hamilton so narrowly. Its rule of exclusion was intended to deny the police authority to conduct prolonged interrogation of a suspect. Viewed in this light, it is obvious that the Hamilton exclusionary rule applies to confessions, admissions and statements, whether inculpatory or exculpatory. While the recent decision of Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L ed 2d 694, 10 ALR3d 974) only applies to cases in which the trial began after the date of decision we feel the following succinctly states our position concerning inculpatory and exculpatory statements:

“The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.’ If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word.” Miranda v. Arizona, supra, at pp 476, 477. See, also, Johnson v. New Jersey (1966), 384 US 719 (86 S Ct 1772, 16 L ed 2d 882).

The real test to be applied is whether the statement turned out to be incriminating. Wong Sun v. United States (1963), 371 US 471 (83 S Ct 407, 9 L ed 2d 441).

The defendant’s conviction became final in 1959 when the period for filing a timely application for leave to appeal had expired. But for this fact we wopld bo required to reverse the conviction fiecap.se of the exclusionary rule announced in Hamilton, supra. When the Michigan Supreme Court announced its decision in Hamilton it carefully noted that its decision would operate “prospectively under our supervisory powers.” 359 Mich at 419. Since we reverse this case for another reason it might be well to say at this time that in any subsequent trial of the defendant the statements taken from him during the period of illegal detention may not be admitted in evidence under the Hamilton rule.

There is a compelling reason for reversing this conviction. During the course of the trial the assistant prosecutor introduced testimony to show that some two weeks prior to the homicide the defendant was with the wife of the decedent’s brother-in-law. She related an attempt by the defendant to molest her which she successfully resisted. An immediate objection by the defendant was made and the jury was then excused. The following colloquy then took place:

“Mr. Pentolino [Prosecutor]: I think it is within point of time because they later told George Sweigert about what happened in this kitchen, and we have reason to believe that George told Besonen.

“Mr. Chal fin: How are you going to put that in evidence with a dead man?

“Mr. Pentolino: 1 admit we are over the barrel, hut I think we can lead up to circumstances, from what was an amicable association to what was a complete breaking off.” (Emphasis supplied.)

This incident involving a woman who was not a relative or close friend of the decedent and occurring nearly two weeks prior to the homicide had no probative value whatsoever and was clearly prejudicial. When the jury returned to the courtroom, the court instructed them that the testimony was stricken and they were told to disregard it.

We should note that we are taking into consideration the studied manner in which this evidence was placed before the jury. The excerpt from the tram script which we have quoted above shows that the prosecutor knew at the time he sought to introduce the evidence that it was totally inadmissible. He conceded that he was “over the [a] barrel.” To aggravate the prejudice to the defendant, the prosecutor ignored the ruling of the court excluding the evidence when he subsequently asked the defendant on cross-examination:

“Q. [By Mr. Pentolino] Isn’t it true, Mr. Besonen, that he was riled up because of your conduct and attitude after long periods of consistent drinking, is that true? * * *

“Q. Isn’t it true, * * * Mr. Besonen[,] .that he accused you of your bad conduct and told you that he .didn’t want you there any mor.e?”

The court had already ruled on the subject and there was no reason- — no legitimate reason — for bringing’ the matter to the jury’s attention again. .

These questions were remarkably similar to those that were so severely condemned in Berger v. United States (1935), 295 US 78 (55 S Ct 629, 79 L ed 1314). Tbe prosecutor knew that lie could not prove the very facts which Ms questions assumed. Indeed, as we have already noted, the evidence unequivocally showed that the defendant and the decedent were on friendly terms right up to the moment they were last seen together on the day of the homicide.

The failure of defendant to move for a mistrial or to object to the prosecutor’s cross-examination does not preclude us from granting a new trial if the interests of justice require. Cf. People v. Ruggero (1923), 223 Mich 368; People v. Ignofo (1946), 315 Mich 626.

The conviction is set aside and case remanded for a new trial.

Fitzgerald, J., concurred.

The late Judge Watts who was a member of the panel of judges to whom this case was submitted for determination took no part in this decision. 
      
       CL 1948, § 750.317 (Stat Ann 1954 Rev § 28.549)—Reporter.
     
      
       It is often fruitless to seek precedents to support an argument involving sufficiency or insufficiency of the evidence but it seems clear that the people must show more than mere opportunity to commit the crime, coupled with false exculpatory statements. Cf. Cooper v. United States (1954), 94 App DC 343 (218 F2d 39). United States v. McConney (CA 2, 1964), 329 F2d 467. As Chief Justice Shaw noted in the famous case of Commonwealth v. Webster, 5 Cush [59 Mass] 295, 317, “An innocent man, when placed by circumstances in a condition of suspicion and danger, may resort to deception in the hope of avoiding the force of such proofs.”
      Additionally, there is some evidence tending to point to the defendant’s innocence. The homicide was a particularly bloody one and it was the theory of the police that the murderer dragged Sweigert to the laundry tubs after the blows were struck. Yet no blood was found on the defendant’s person or his clothing exeept for a small spot approximately 1/32 of an inch in diameter on the inside of pne pant leg. The specimen was too small to determine whether or not it was human blood. Furthermore, the defendant’s fingerprints did not appear on the murder weapon or elsewhere in the house as far as the record shows although fingerprint experts went over the house carefully.
      “It takes something more than a robust suspicion to convict a defendant in a criminal case.” United States v. Carengella (CA 7, 1952), 198 F2d 3, 7, cert denied, 344 US 881 (73 S Ct 179, 97 L ed 682), citing United States v. Wainer (CA 7, 1948), 170 F2d 603, 606.
     
      
      
        The conflict in his statements arose when he first told the officers he did not enter the house on the morning of the 6th and then admitted he entered the house and saw what appeared to be either mud or bloodstains on the basement floor. When asked why he didn’t tell anyone what he had seen, the defendant answered “I just didn’t.” This statement was made at approximately 4 p. m. on February 7th. Both of these statements were offered and admitted into evidence.
     
      
       Currently covered by CLS 1961, § 780.581 (Stat Ann 1965 Cunt Supp § 28.872 [1]),
     
      
       She testified, in identifying the decedent’s body, as follows:
      “Q. Did you know one George Sweigert in his lifetime?
      “A. No. I have only known him — well let me see — just a little over 2 years when I married [his brother-in-law].”
     
      
       “Tlie United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to'govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a ease, but that justice shall be done.' As such, ho is in a peculiar and very definite sense the servant of the law, the twofold aim of whieh is that guilt shall not escape or innoeenee suffer. He may prosecute with earnestness and yigor — indeed, he .should do so. But, while he may strike hard blows, he. is not at liberty to strike foul onés. It is as much his duty to refrain- from "improper methods" calculated to produce a- wrongful — conviction—as jfis to use every legitimate means to bring about a just one. . '>
      
      “It is fair to say that the average jury, in .a greater or. less degree, hag confidence that these obligations, which" so plainly rest upon the prosecuting attorney,- will b;e. faithfully, observed.; .Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly earry none. The court below said that the ease against Berger was not strong; and from a careful examination of the reeord we agree. Indeed, the ease against Berger, who was convicted only of conspiracy and not of any substantive offense as were the other defendants, we think may properly be characterized as weak — depending, as it did, upon the testimony of Katz, an accomplice with a long record.
      “In these circumstances prejudice to the cause of the accused is so highly probable that we are not justified in. assuming its nonexistence. If the ease against Berger had been strong, or, as some courts have said, the evidence of his guilt 'overwhelming/ a different conclusion might be reached.” Berger v. United States (1935), 295 US 78, 88, 89 (55 S Ct 629, 79 L ed 1314). Cf. People v. Dane (1886), 59 Mich 550.
     