Under an information charging fraudulent conversion of money, defendant was tried, convicted, and sentenced. A new trial was denied, and defendant, in prosecuting review, presents two questions:
"1. Was prejudicial error committed by the special prosecuting attorney in his opening statement to the jury?
"2. Did the special prosecuting attorney commit prejudicial error in stating to the jury in his opening statement that the defendant, C.G. Bigge, had embezzled the sum of $279,365.11, and then proceeding to introduce proofs in support thereof on the theory of showing intent, until limited by the court in the number of said items?"
In his opening statement to the jury of intended proof the special prosecutor said:
"On the 1st day of May, 1937, in Detroit where a conference was held with Mr. Bigge with one of his very close friends and a relative, the matter of his embezzlement was talked over at length by another witness who will testify in this case. They were going over various items of this embezzlement and the amount, and what Charles had done with the money, and this person, his brother-in-law in fact, said to this witness who will testify, 'What's the use of going over this matter again. Charles is guilty as hell.'
"Mr. Sigler (attorney for defendant): I object to that as being improper unless Charles G. Bigge was present.
"Mr. Campbell (special prosecuting attorney): I haven't finished. Charles Bigge could have said right there if it wasn't true. It was his duty to have said so." *Page 420
Good practice required counsel to follow his objection with a request for a ruling and an instruction to the jury. This was not done.
At the trial the prosecutor offered testimony that the defendant was present in the room and claimed, under the authority of People v. Todaro, 253 Mich. 367,* the statement and failure of defendant to deny the same was admissible.
In the absence of the jury the court took the testimony and ruled it inadmissible. The error, if any, was, therefore, in the opening statement.
The Todaro Case was confined to res gestæ occurrences and is no authority for admitting the testimony in the instant case. The time has not yet come when an accused must cock his ear to hear every damaging allegation against him and, if not denied by him, have the statement and his silence accepted as evidence of guilt. There can be no such thing as confession of guilt by silence in or out of court. The unanswered allegation by another of the guilt of a defendant is no confession of guilt on the part of a defendant. Defendant, if he heard the statement, was not morally or legally called upon to make denial or suffer his failure to do so to stand as evidence of his guilt. He said nothing, and what was said in his presence by another was inadmissible, just as the court later held.
Did the statement of the prosecutor constitute reversible error?
We are urged to notice the guilt of defendant appearing in this record and affirm the conviction under the authority of 3 Comp. Laws 1929, § 17354 (Stat. Ann. § 28.1096), which reads:
"No judgment or verdict shall be set aside or reversed or a new trial be granted by any court *Page 421 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."
That statutory provision is not a cure-all for it must serve within constitutional limitations or else be declared void. Minor errors which clearly can be held not to have affected the result may be mollified by this statutory provision, but errors which deprive an accused of the right of due process of law cannot be composed thereby to the detriment of an accused. The responsibility of maintaining the right of fair trial and due process of law is placed with the judicial branch and cannot be otherwise by legislative permission. We are not concerned with the guilt or innocence of the accused, for we are not triers of the facts and must apply the law to the case as tried. The statement was inexcusable, wholly without warrant of law, planted irremovable impression, and rendered defendant a victim of the error. The prosecutor by such statement of intended proof of defendant's guilt brought an effect so probable, so inadmissible, and so prejudicial as to constitute irreparable error.
The charge in the information involved intent and the prosecutor, under the statute (3 Comp. Laws 1929, § 17320 [Stat. Ann, § 28.1050]), was at liberty to show like acts tending to disclose that the act charged was with intent on the part of defendant fraudulently to convert the property to his own use.
We find no objection preceding the limitation imposed by the court and do find the utmost care taken by the court in limiting consideration by the jury *Page 422 of such other acts. In the maintenance of right of trial by jury and full integrity of its incidents we are constrained by the mentioned error to reverse the conviction and remand the case for a new trial.
BUSHNELL, SHARPE, CHANDLER, and NORTH, JJ., concurred with WIEST, J.
* See People v. Todaro, 256 Mich. 427, on rehearing. — REPORTER.