People v. Beath

• Decision Date: 16 October 1936
• Docket Number: No. 101.,101.
• Citation: 269 N.W. 238,277 Mich. 473
• Parties: PEOPLE v. BEATH et al. SAME v. ONCIU.
• Court: Michigan Supreme Court

277 Mich. 473

269 N.W. 238

PEOPLE

v.BEATH et al.

SAME

v.ONCIU.

No. 101.

Supreme Court of Michigan.

Oct. 16, 1936.

Duncan C. Beath and Adam Onciu were convicted of conspiracy to defraud, and they appeal.

Judgment against Beath set aside, and new trial granted. Judgment against Onciu affirmed.Appeal from Recorder's Court of Detroit; Henry S. Sweeny, judge.

Argued before the Entire Bench, except POTTER and TOY, JJ.

Leo W. Pigott, of Detroit, for appellant Adam Onciu.

P. J. M. Hally, of Detroit, for appellant Duncan C. Beath.

David H. Crowley, Atty. Gen., Edmund E. Shepherd, Asst. Atty. Gen., and Duncan C. McCrea, Pros. Atty., and William L. Brunner, Asst. Pros. Atty., both of Detroit, for the People.

BUTZEL, Justice.

Defendants Duncan C. Beath, Adam Onciu, Frank Sliva, and Gregory Voinegu were charged with fraudulently conspiring, confederating, and agreeing with Morton P. Overlin, ‘by false pretenses, subtle means and devices, to obtain and acquire unto themselves, of and from the city of Detroit, Department of Street Railways, a municipal corporation * * * the sum of $25,000 * * * and to cheat and defraud. * * *’ No objection was made to the information. Overlin pleaded guilty to the charge. The other four defendants waived trial by jury. Sliva's automobile had collided with another car, and he and others were injured. Some time after the accident, he devised a scheme of fixing the liability on the street railway department of the city of Detroit because of the alleged faulty operation of a street car. This was wholly a fabrication on Sliva's part; no street car having been involved in the accident.

One August McShosh first took Sliva to Anthony Nelson, an attorney, who instituted suit against the city. Shortly before the trial, however, Nelson refused to proceed with the case, and thereupon defendant Beath was substituted as Sliva's attorney. The case came on to trial and resulted in a verdict of $7,000 against the city. The verdict was based largely on the testimony of Overlin, who confessed that he had perjured himself. After Overlin pleaded guilty to the conspiracy charge, Beath moved the court to set aside the verdict in the civil case.

At the conclusion of the testimony in the instant criminal case, the case was continued for three weeks when, after the arguments of counsel, the court found the defendants guilty of conspiracy to cheat and defraud. Sentence was deferred for over four months pending the hearing of a motion for a new trial. After the hearing on this motion, the court again deferred sentencing defendants Beath, Onciu, and Sliva, without date, pending the outcome of a writ of error to this court. Sentence, however, was suspended on Voinegu, and he was discharged. In denying the motion for new trial, the court stated that no error had been shown, but that the motion was predicated largely upon the question of the weight to be given the testimony; that after carefully reviewing the facts, the court was convinced that the guilt of each and every one of the defendants had been determined beyond any reasonable doubt, although there had been some doubt in his mind as to defendant Beath. The court further stated that Sliva, since his trial and conviction, had been found to be insane and committed to a state hospital.

The following February supplemental motions for a new trial were made by defendants Beath and Onciu and taken under advisement. That of Onciu was accompanied by affidavits of himself and one Gladys Gotcheff. Onciu deposed that at a meeting in a tavern to which Overlin asked him to come, Overlin stated that he had perjured himself in the case, and that for the sum of $5,000, he would escape and not be available at the new trial. Gladys Gotcheff, a friend of Onciu's deposed that at his request she also went to the tavern and from a seat nearby overheard the conversation as set forth in Onciu's affidavit. Beath's affidavit was based largely upon what he had heard from Onciu. On April 13, 1935, the court, without handing down any opinion, as far as the record shows, granted the motions for a new trial and vacated the judgment of guilty as to all defendants. On the morning of May 13, 1935, the time set for the new trial and within 30 days after the order granting it, the prosecutor asked leave to file a motion to vacate and set aside the order granting the motions for a new trial on the ground that the affidavits, upon which the motions for new trial had been based, were false and contained gross misrepresentations. He stated that he desired until 2 o'clock of that afternoon to file the motion in proper form, and that at that time he would be able to offer proofs that would satisfy the court that the order granting the new trial should be set aside and vacated. Mr. Beath thereupon stated that there was an orderly way in which to make a motion and that if the prosecutor had one based upon affidavits, a copy should be furnished respondents who were entitled to a 4 days' notice under court rules. The court stated that when the motion was filed, respondents would have the right to offer reasons for a ‘stay’ for the 4-day period, but that he would continue the case until 2 o'clock and give the prosecuting attorney the opportunity to file the motion, and that, otherwise, the trial would proceed. Beath stated that Onciu's attorney, a state Senator, was desirous of being in Lansing that afternoon and that if counsel were going to prepare a motion of that kind, he undoubtedly must have it in mind. Onciu's attorney asked if it would be safe for him to go to Lansing that afternoon on the chance that the court would grant respondents time to answer the motion. The prosecutor replied that all of the defendants had known for at least two weeks that the case was set for that day; that the people had subpoenaed over 50 witnesses to appear in court, and that he would be prepared at 2 o'clock to offer the witnesses who would prove the contentions set forth in his motion. The court then stated that he was merely giving the prosecutor an opportunity to file a written motion and, if he did, the respondents would have the usual notice on a hearing and that a date would be set for the hearing on that motion. Upon the court's adjourning the case until 2 o'clock, Onciu's attorney stated that he could not be present that afternoon, but that he was leaving Mr. Beath and the attorney for another defendant to look after Onciu's interests in the meantime. In the afternoon, the prosecutor called attention to the fact that at the morning session, Onciu's attorney had stated that in the event that he was not present in the afternoon, Beath would take care of Onciu's interests. The court proceeded to take testimony in support of the prosecutor's motion. Several days were devoted to examining witnesses. Before the examination was concluded, Onciu's attorney had returned from Lansing and participated in the cross-examination of Overlin, the main witness. At the conclusion of the testimony on the motion, the court stated that the order granting a new trial had been based upon affidavits that Overlin would change his testimony; that the order had been made rather hastily without the intervention of the prosecuting attorney and that no one appeared for the people, and that after hearing the testimony on the present motion, the court was satisfied that the order granting a new trial was made improvidently and that an order would be thereupon entered setting aside and vacating the previous order and a further order made denying the motions for new trial. The court further stated that he at no time had any doubt whatsoever as to the guilt of Onciu or of the others in the case; that he had no reasonable doubt of the guilt of Beath, but that since Beath was an attorney who had been practicing law many years and had brought to court men of integrity and reputation as character witnesses, he had opened up the case with the hope that possibly the evidence as shown might be wrong. His final conclusion, however, was that Beath also was guilty. Voinegu was placed on probation for a period of 5 years; Onciu sentenced to not less than 2 years nor more than 5 years, and Beath to not less than 1 year and not more than 5 years, in Jackson State Prison. Beath and Onciu have appealed from the judgment of conviction.

It is claimed that the defendnats were found guilty of offenses unknown to the common law or to the statutes of this state. The information specifically charged a conspiracy to cheat and defraud and obtain money by false pretenses; it set forth the illegal act complained of, and the time and place of the conspiracy. It was sufficient as to form. The offense charged here is a conspiracy to cheat and defraud and obtain money by false pretenses. At common law, conspiracy to do an unlawful act was an indictable offense. There is no distinction between conspiracy to commit an act unlawful at the common law and one declared unlawful by statute. The contention of the...