Ex parte Oliver

• Decision Date: 16 May 1947
• Docket Number: No. 343,Jan. Term, 1947.,343
• Citation: 27 N.W.2d 323,318 Mich. 7
• Parties: Petition of DOHANY. Ex parte OLIVER.
• Court: Michigan Supreme Court

318 Mich. 7

27 N.W.2d 323

Petition of DOHANY.

Ex parte OLIVER.

No. 343, Jan. Term, 1947.

Supreme Court of Michigan.

May 16, 1947.

Proceedings in the matter of the petition of William F. Dohany for a writ of habeas corpus and certiorari on behalf of William Oliver.

Petitions dismissed and petitioner remanded to custody by a divided court.

See also, Mich., 27 N.W.2d 48.

Before the Entire Bench.

William F. Dohany, of Pontiac, for petitioner

Eugene E. Black, Atty. Gen., and Edward J. Fallon, Sp. Asst. Atty. Gen., for respondent.

CARR, Chief Justice.

On September 11, 1946, and prior thereto, an investigation was being conducted in the county of Oakland by the Hon. George B. Hartrick, one of the circuit judges of said county, pursuant to the provisions of Comp.Laws 1929, § 17217 et seq., Stat.Ann. § 28.943 et seq. The subject matter of such investigation involved alleged violations of the statutes of the State pertaining to gambling, operation of gambling devices, bribery of public officials, and other offenses. On the date referred to William Oliver was summoned before Judge Hartrick and questioned concerning certain matters pertaining to the inquiry. During such examination the other circuit judges of Oakland county, the Hon. Frank L. Doty and Hon. H. Russel Holland, sat with Judge Hartrick in an advisory capacity. At the conclusion of Oliver's testimony the judges unanimously agreed that false and evasive answers had been given by Oliver in answer to questions. Thereupon Judge Hartrick adjudged Oliver guilty of contempt of court and sentenced him to 60 days in the Oakland county jail.

Following the conviction and sentence a petition was filed in this court on behalf of Oliver, asking for a writ of habeas corpus, with accompanying writ of certiorari, to inquire into the legality of his conviction, sentence and imprisonment. On the filing of said petition the writs were issued, and Oliver, herein referred to for the sake of clarity and brevity as the plaintiff, was released on bail. The matter is before this court on the petition and Judge Hartrick's return.

The return sets forth that, in the course of the investigation referred to, it was called to the attention of the circuit judge, acting as a grand juror, that plaintiff was the owner of certain pin ball machines which were being operated in Oakland county, and which, it was suspected, were being used for gambling purposes; and that plaintiff had purchased from one C. A. Mitchell, doing business as the Midwest Bonding Company, a series of instruments referred to as ‘bonds,’ for which plaintiff had paid Mitchell certain sums of money. The return further shows that Oliver was questioned before the grand jury concerning his dealings with Mitchell, and also as to the location of the bonds in question. The testimony that Judge Hartrick and his associates concluded was false and evasive is as follows:

‘Q. Now, in September of 1944 you were approached by a man named Carman A. or Carman E. Mitchell with reference to the purchase of certain bonds which were to cover pin ball machines that were owned and operated by you in the county of Oakland, that is right? A. Yes

‘Q. Where are those bonds now? A. Well, I destroyed them.

‘Q. When? A. Well, I don't remember the exact date. I imagine I destroyed it at the end of the year. You know, when going through my papers I didn't see any use for keeping them because they had expired.

‘Q. What method did you use to destroy them? A. Well, I don't know offhand just what I did do with them, whether I burned them or threw them out. I must have threw them out.

‘Q. Did ou ever buy any bonds of that kind before? A. No.

‘Q. Never had any of that kind of bonds in your possession before in your lifetime? A. No, I never did.

‘Q. You never had an event of that kind occur in all your life did you? A. No.

‘Q. And you want us now to understand, even in view of the fact that those were the only bonds of this type that you ever owned or handled, you want us to believe that you cannot tell us now what method you employed in destroying them? A. I just got rid of them. I imagine I threw them in the waste paper basket. That is what I usually do. I get lots of circulations, papers, things that I have no use whatever for, threw them in the waste paper basket.

‘Q. When do you think you threw them away? A. Possibly the end of the year, found them in there, run out, expired.

‘Q. The closest thing to accuracy that you can give us regarding those bonds, is that you are not sure when you destroyed them, are not sure what method you employed to destroy them? A. The only-I couldn't say what I did do. Probably threw them in the trash can.

‘Q. That is as close as you can tell us? A. No, no, I don't remember what I did do with them. I con't say positive what I did do with them.

‘Q. Where were you when C. A. Mitchell first talked to you about the purchase of these bonds? A. Well, to the best of my memory I was in his office.

* * *

‘Q. Who mentioned these bonds first, you or he? A. He did.

‘Q. What did he tell you about them? A. Oh, he just handed me one, told me to look it over.

‘Q. Did you look it over? A. Yes,

‘Q. Did you read it? A. Yes.

‘Q. What next was said? A. Well, he went ahead to explain to me about the bonds, you know, what it was for.

‘Q. What did he tell you it was for? A. To reimburse the county for any expense, extra expense they had to go to in case the machines, anybody was caught gambling on the machines or anything illegal.

‘Q. Your machines are perfectly legal, are they not? A. They were, yes.

‘Q. Did he tell you who he was going to prevent from using that gambling device? A. He didn't tell.

‘Q. Didn't you ask? You know, according to the ruling they can be gambled on? A. You know people go in and bet on high scores things like that?

‘Q. Did Mitchell mention that to you before you bought them? A. Well, he stressed upon if the county had to go to any expense, extra expense, the bonding company would pay the expense.

‘Q. Did you consult the prosecuting attorney about it? A. No, I didn't.

‘Q. You knew the county was involved, did you not? A. Well, yes.

‘Q. Didn't you think it was any of the county's business that some stranger was making a contract for the county? A. No, I didn't think anything special about it.

* * *

‘Q. Did you have any conversation with anybody else about these bonds before you bought them? A. Yes, I spoke to McNamara about it.

‘Q. McNamara is now dead is he not? A. Yes.

‘Q. Who else? A. I spoke to Hartley about it.

‘Q. What conversation did you have with Hartley? A. Well, I asked him what he thought about it. He said, well, he didn't know. He said McNamara had an attorney and was going to see the prosecutor about them. He said he was going to wait and see what information he got before he did anything.

‘Q. You went to Hartley and asked him what he thought? A. I went to him or called him up, I don't know which. Anyway I discussed it.

* * *

‘Q. What protection did you think you were getting out of this transaction? A. Well, you know, they just hand down a ruling that the machines in some places are illegal, if they caught them gambling on them, things like that. I figured it would show our good faith, we were trying to run them legitimately.

‘Q. How did you think C. A. Mitchell could enforce the law as far as your machines were concerned? A. I don't know. He didn't say ‘Enforce the law, show our good faith.’ We had a little sticker we put on the machines.

* * *

‘Q. You didn't seek any advice from Mr. Dohany before you parted with your money, or in relation to these bonds, did you? A. No.’

In the brief filed on behalf of plaintiff it is contended, first, that plaintiff's summary conviction of contempt constituted a denial of due process of law and hence violated art. 2, § 16, of the State Constitution, and § 1 of the Fourteenth Amendment to the Federal Constitution; second, that due process of law, under both the State and Federal Constitutions, required the filing of charges, notice of hearing to the accused, and a hearing on such charges; third, that contemptuous misbehavior toward a grand jury conducting an investigation under the statutory provisions above cited is not contempt of court. These questions were all raised in the case of In re Petition of Dohany for a Writ of Habeas Corpus and Certiorari on behalf of Leo Hartley, Mich., 27 N.W.2d 48, in which the conviction of Hartley for contempt, committed under circumstances analogous to those in the case at bar, was sustained by an evenly divided court. They were discussed at some length by Justice Dethmers in his opinion, and it is unnecessary to repeat what was there said. The claims made are without merit.

This brings us to the consideration of the question whether, as a matter of fact, plaintiff was guilty of contempt of court. The return of the circuit judge as to the facts must be taken as true. This court does not weigh the testimony but examines it to determine if there is evidence to support the finding. People v. Doe, 226 Mich. 5, 196 N.W. 757;In re Slattery, 310 Mich. 458, 17 N.W.2d 251. An examination of the testimony given by Oliver with reference to his dealings with Mitchell leads to the conclusion that plaintiff sought to withhold his real reason, or reasons, for paying money to Mitchell, ostensibly for the bonds. No copies of these instruments appear in the record in the instant case, but the return of the circuit judge states that he was satisfied, after investigation, that the instruments were the same as those sold by Mitchell to Hartley. It may be noted in this connection that an affidavit, set forth in the record, filed by plaintiff in support of a motion for a more complete return, sets forth that said plaintiff in his testimony before the grand jury identified a duplicate of a bond purchased by him from Mitchell. It thus appears that there was testimony before the grand jury with reference to the form of the bonds that plaintiff...