People v. Smith

• Decision Date: 17 May 1935
• Docket Number: No. 107.,107.
• Citation: 260 N.W. 911,271 Mich. 553
• Parties: PEOPLE v. SMITH.
• Court: Michigan Supreme Court

271 Mich. 553

260 N.W. 911

PEOPLE

v.SMITH.

No. 107.

Supreme Court of Michigan.

May 17, 1935.

Robert D. Smith was convicted of aiding and abetting another in obtaining money and property by false representations and pretenses, and he appeals.

Affirmed.Appeal to Circuit Court, Muskegon County; John Vanderwerp, judge.

Argued before the Entire Bench.

Frank E. Wetmore, of Hart (Charles B. Cross, of Muskegon, of counsel), for appellant.

Harry S. Toy, Atty. Gen., and Francis G. Barlow, Pros. Atty., of Muskegon, for the People.

POTTER, Chief Justice.

Defendant was arrested, tried, and convicted of aiding and abetting one Guy Vander-west in obtaining money and property by false representations and pretenses, and brings the case here by appeal in the nature of a writ of error.

After the original information was filed in the circuit court, motion was made by the people for leave to file an amended information, whereupon defendant objected to the filing of an amended information for the following reasons and upon the following grounds: That respondent had never been arrested upon any complaint and warrant charging him with the matters charged in the so-called amended information; had never had any examination on the matters set forth and charged in said amended information; had not waived and did not waive the right to an examination on the matters set forth in the information; the information charged no offense known to the law, is ambiguous, vague, and does not describe, nor state any offense, with sufficient certainty that defendant may prepare for his defense.

This motion was overruled and the people were permitted to file an amended information. Whereupon defendant moved for an order striking from the files both the original and amended information, and to discharge the respondent and quash the cause for the reasons and upon the grounds that the original information was bad for duplicity, charged several distinct charges in one single count; charged no offense known to the laws of the state; the so-called amended information was not based upon any complaint or warrant issued against respondent; he had never had any preliminary examination on the matters charged in the so-called amended information and had never waived such preliminary examination; the so-called amended information was not an amended information, but an original information, not based upon any complaint, warrant, or testimony had or taken at any preliminary examination had or held in said cause; and the so-called amended information stated no offense known to the law; which motion was overruled by the trial court and the case came on for hearing before the court and a jury, and defendant upon trial was convicted. Various errors are assigned which are grouped together by the attorney for defendant in the statement of questions involved. Defendant contends: (1) One may not be tried and convicted of aiding and abetting another to commit the crime of obtaining property by false pretenses; (2) defendant was entitled to a directed verdict at the close of the people's case; (3) aiding and abetting another to commit a felony is not in the class of cases mentioned and provided for by section 17320, Comp. Laws 1929; (4) Exhibit 11, a contract of lease of pipe, was not admissible in evidence and it was error to permit its use by the prosecuting attorney in his argument; (5) the court erred in his charge to the jury.

1. Ordinarily, one who aids and abets another in the commission of an offense is an accessory. The statute in this state, Comp. Laws 1929, § 17253, provides: ‘Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.’

Defendant contends that aiding and abetting was a common-law offense which was partially abrogated by the statute last above quoted, which took the place of and superseded section 7934, Comp. Laws 1871; and that at least since 1871 the offense of aiding and abetting has been abolished. All this may be admitted.

By the very terms of the statute, Comp. Laws 1929, § 17253, he that aids and abets in the commission of an offense is now a principal and may be charged as such. This was the rule laid down in People v. Wycoff, 150 Mich. 449, 114 N. W. 242, and is covered by the express terms of the statute.

The information filed against defendant did not charge defendant with being a principal, as it might have done, but it charged him with aiding and abetting the commission of the offense of obtaining property by false pretenses, and set up the facts and circumstances surrounding the commission of the offense.

In People v. Peckens, 153 N. Y. 576, 47 N. E. 883, 885, a similar question came before the court in connection with the statute simplifying criminal practice and procedure in the state of New York, and it was said: ‘The obvious intent of that section was to simplify the form of pleading in such a case, but manifestly it was not intended to prohibit the pleader from alleging the facts. That provision is permissive, not mandatory. * * * The only effect of that provision * * * is to permit the pleader to allege an act as the act of a defendant when he procures it to be performed by another. That the indictment in this case charged all the facts, instead of alleging a conclusion, constituted no sufficient objection to its validity.’

In State v. Hinshaw, 92 Kan. 1007, 142 P. 960, it is said: ‘The substance of the charge, leaving out superfluous words, is that the defendant did fraudulently aid James D. Henderson to obtain from E. W. Parsons goods and money of the value of $35, by presenting to the said E. W. Parsons a false and bogus check for $35, purporting to be drawn by the Auto Supply & Tire Company, per O. M. Nichols, and by buying a ring of the value of $20 from the said E. W. Parsons and giving him the said false and bogus check for the said ring, and by receiving $15 in money in addition; and that the defendant, with the intent to assist James D. Henderson in cheating and defrauding, wrote the check and signed thereto the name of O. M. Nichols. In other words, this count of the information charges that Henderson obtained property from Parsons by means of a false token-a check purporting to have been signed by O. M. Nichols-and that the defendant aided him by signing the name of Nichols to it. The statute permits one who aids in the commission of an offense to be charged as if he were a principal. * * * But it is no objection to an information that it sets out the actual facts in this regard.’

As pointed out in Territory v. Guthrie, 2 Idaho (Hasb.) 432, 17 P. 39, 40: ‘It is true the statute makes an accessary before the fact a principal, and it is wholly unnecessary to charge the accused in any other form than as principal; but, if the grand jury does charge one who is in fact an accessary before the fact as such, the effect is simply to inform him more clearly of what he must defend against, and therefore it is not a defect of which he can be heard to complain.’

In State v. Ostman, 147 Mo. App. 422, 126 S. W. 961, 962, the court pointed out that it was entirely proper under the statutes to charge those who aided and abetted in the commission of an offense as principals, and thus conform to the conclusion of the law on the facts, or ‘it may allege the matter according to the fact, as was done in this case; that is to say, it may allege the offense against the principal actor as principal and the others as aiders and abettors all in the same count. It is immaterial how the charge may be made; the law regards them all as principals.’

In State v. Briggs, 84 Minn. 357, 87 N. W. 935, 936, it is said: ‘Where a party does not personally commit a crime, but procures it to be committed by another, the indictment may charge him directly with the commission of the offense, as if he personally committed it, or it may directly charge him as a principal by stating the facts which at common law would make him an accessory before the fact.’

In State v. Gleim, 17 Mont. 17, 41 P. 998,31 L. R. A. 294, 52 Am. St. Rep. 655, it is said: ‘It is plain that the old distinctions between accessories before the fact and principals are abolished by these statutes; * * * but we see no objection to the form of an information charging a person as an accessory rather than as a principal. To so charge is to the advantage of a defendant, because it notifies him of the attitude which the state will assume when the case is brought to trial, by setting out the facts constituting the offense with greater certainty than is requisite where an accessory is indicted as a principal.’

In Di Preta v. United States (C. C. A.) 270 F. 73, 75, it is said: ‘At common law Di Preta would have been an accessory before the fact; but the Penal Code makes him a principal. Thus the acts of the principal become the acts of the accessory or aider, and such accessory may be charged as having done the act himself, and be indicted and punished accordingly. * * * It is at the option of the pleader whether, when the accessory before the fact is by statute made a principal, he be charged as doing the thing directly or through the principal. * * * And generally where the distinction between principals and accessories before the fact has been abolished, such accessory may be indicted as if he were a principal, without setting out the facts by which he aided and abetted or advised and procured the commission of the crime.’

Before the enactment of the statute, the conviction of the principal was essential to the prosecution of the accessory. Now all are principals,...