Oakland County Prosecuting Attorney v. 46th Judicial Dist. Judge

• Decision Date: 20 June 1977
• Docket Number: 26560 and 26561,26459,Docket Nos. 26328
• Citation: 256 N.W.2d 776,76 Mich.App. 318
• Parties: OAKLAND COUNTY PROSECUTING ATTORNEY, Plaintiff-Appellee, v. 46TH JUDICIAL DISTRICT JUDGE, Defendant-Appellant. 76 Mich.App. 318, 256 N.W.2d 776
• Court: Court of Appeal of Michigan — District of US

Page 776

256 N.W.2d 776

OAKLAND COUNTY PROSECUTING ATTORNEY, Plaintiff-Appellee, v. 46TH JUDICIAL DISTRICT JUDGE, Defendant-Appellant.

Docket Nos. 26328, 26459, 26560 and 26561.

76 Mich.App. 318, 256 N.W.2d 776

Court of Appeals of Michigan.

June 20, 1977.

Rehearing Denied July 29, 1977.

Released for Publication Aug. 18, 1977.

[76 MICHAPP 321] Barris & Crehan by Ivan E. Barris and Michael H. Golob, Detroit, for bageris.

Stuart B. Eisenberg, Detroit, for Mittleman.

Joel R. Isaacson, Detroit, for Singer.

Lawrence B. MacDonald, Detroit, for Locricchio.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Counsel, Asst. Pros. Atty., Michael J. Modelski, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and T. M. BURNS and JOHN E. McDONALD, JJ. ^*

[76 MICHAPP 322] McDONALD, Judge.

Intervening defendants were charged with conspiracy to violate the state gambling statute, M.C.L.A. § 750.301 et seq.; M.S.A. § 28.533 et seq.; M.C.L.A. § 750.157a; M.S.A. § 28.354(1). The District Judge dismissed the complaint on the basis that the gambling act did not apply to this fact situation. The Circuit Court reviewed the action of the District Judge and decided that the District Judge erred in construing the applicable law. The matter is before this Court on an appeal from the decision of the Circuit Court holding that the District Judge erred in his finding that the Michigan gambling statute was inapplicable.

At the outset we find that this appeal is not properly within the jurisdiction of this Court as an appeal of right because the plaintiff has a plain, speedy and adequate remedy of an appeal to the Circuit Court from the District Court's decision. See Moore v. Ninth District Judge, 69 Mich.App. 16, 244 N.W.2d 346 (1976), Oakland County Prosecutor v. 46th District Judge,72 Mich.App. 564, 250 N.W.2d 127 (1976). Because plaintiff's remedy was by appeal to the Circuit Court and not superintending control, the Circuit Court's decision is reviewable by this Court upon application for leave to appeal rather than claim of appeal as of right. However, in order to dispose of the case on the merits, we treat the appeal as an appeal on leave granted.

On three separate occasions, May 17, May 18 and May 31, 1974, seven persons gathered in the apartment of one of the defendants by prearrangement and engaged in poker games where money was bet in amounts varying from one hundred to several thousand dollars.

One of the participants in these three poker sessions was the complaining witness. He was a co-conspirator, but was not named as a defendant.

[76 MICHAPP 323] At a preliminary examination, the prosecutor moved to have the charge of conspiracy dismissed as to two of the co-conspirators and codefendants. This motion was granted. The remaining four co-conspirators and codefendants had a preliminary examination.

The District Court, after hearing testimony, having briefs submitted and listening to oral argument, dismissed the charges against the four alleged co-conspirators.

The District Judge noted that this was a case of first impression in this state and found that seven persons played cards for money in the apartment of one of the defendants on three separate occasions in May of 1974. He found that the games consisted of poker and baccarat, admittedly for stakes. He found that each participant came voluntarily; that there were no commercial aspects to the gambling and that the winning involved luck, skill, and depended on the amount of money that each participant had wagered.

The District Judge went on to state that he found the complaint ambiguous and his interpretation of the statute was that it covered gambling in which someone was making a profit by operating an illegal business and that the statute "could not be stretched" to cover poker games.

The District Judge also found that the four defendants were subjected to discriminatory prosecution. He took judicial notice that others in the state and in his district were engaged in this type of activity and had not been charged with a crime. He found the complaint to be selective prosecution. The District Judge criticized the dismissal of some of the defendants and said that this prevented the remaining four defendants from being afforded equal protection under the United States Constitution.

[76 MICHAPP 324] The District Judge was of the belief that under "Wharton's Rule", ¹ the number of participants involved was immaterial and that this rule required different elements to be shown for the crime of conspiracy than for the commission of the substantive offense. He also anticipated that the Legislature of Michigan would soon decriminalize victimless crimes and anticipated that the situation covered in the complaint would be included in that action by the Legislature. The District Judge said that he was not making comment on the right of consenting adults to engage in activities in the privacy of their own home and that by his lack of comment was not suggesting that these theories did not apply to the case before him. The District Judge found that a conspiracy had not been committed and dismissed the complaint.

In a review of this action by the District Judge before the Circuit Court, the Circuit Judge found that the District Judge had erred. The Circuit Judge found that solicitation, invitation, and resultant participation by the defendants in the gambling operation clearly showed probable cause for determination by the District Judge of conspiracy to gamble at cards.

The Circuit Judge decided that the District Judge erred in interpreting the involved statute as covering only commercialized gambling for profit. The Circuit Judge also found that the District Judge was in error in his finding that the so-called selective prosecution denied defendants equal protection of the law.

We agree with the Circuit Judge.

[76 MICHAPP 325] The evidence offered at the preliminary examination established that on three separate occasions during the month of May, 1974, on May 17, 18, and 31, the defendants and others gathered at the intervening defendant Bageris' apartment for the purpose of engaging in poker games involving betting on the outcome of the games. The participants gathered as a result of personal invitation or through telephonic announcement of the time and place and occasionally it was agreed that they would all reconvene and further engage on a subsequent announced date. Michigan gambling statute M.C.L.A. § 750.301; M.S.A. § 28.533 provides:

"Any person or his agent or employe who shall, directly or indirectly take, receive or accept from any person any money or valuable thing with the agreement, understanding or allegation that any money or valuable thing will be paid or delivered to any person where such payment or delivery is alleged to be or will be contingent upon the result of any race, contest or game or upon the happening of any event not known by the parties to be certain, shall be guilty of a misdemeanor, punishable by imprisonment in the county jail for not more than one year or by a fine of not more than five hundred dollars."

The initial question is whether the statute is clear and unambiguous. If so, it is apparent that it is the Court's duty to enforce the statute as written. Nordman v. Calhoun, 332 Mich. 460, 465, 51 N.W.2d 906 (1952). Ford Motor Company v. State Tax Commission, 63 Mich.App. 577, 584, 234 N.W.2d 711 (1975). Defendants say it is to be presumed that this statute was directed merely at organized, commercialized gambling. This conclusion is not supported when the entire gambling act is viewed as a whole. An examination of the Michigan statutes[76 MICHAPP 326] reveals that specific statutory provisions have been passed, directed at combating organized, commercialized gambling, M.C.L.A. § 750.302; M.S.A. § 28.534 and M.C.L.A. § 750.303; M.S.A. § 28.535. It is not a reasonable interpretation to conclude that the above Section 301 was intended by the Legislature to be directed solely toward the same purpose. Furthermore, there have been various exceptions made by the Legislature where they have seen fit to exclude certain types of games and the allowance of lottery and bingo with further exceptions provided in M.C.L.A. § 750.310; M.S.A. § 28.542. Had the Legislature intended to exempt the private playing of cards for money between consenting adults from the gambling statute, it could easily have expressly done so. See Anno: Gambling in Private Residence as Prohibited or Permitted by Anti-Gambling Laws, 27 A.L.R.3d 1074. It would appear that, in enacting the gambling laws, the Legislature was attempting to alleviate the evils inherent in unregulated gambling such as cheating or fraud and the possibility that an individual might become so affected by such activity as to fail to care for the needs of himself or his family and become a charge on society. The Legislature has the right to conclude that gambling is injurious to the morals and welfare of the people and it is clearly within the scope of the state police power to suppress gambling in all of its forms. See Parkes v. Judge of Recorder's Court, 236 Mich. 460, 210 N.W. 492 (1926).

Defendants' reliance upon the decision in People v. Adams, 34 Mich.App. 546, 192 N.W.2d 19 (1971), affirmed in part 389 Mich. 222, 205 N.W.2d 415 (1973), in support of their construction of the statute is not well-founded.

In People v. Adams, supra, at 245, 205 N.W.2d at 426, the Supreme Court said that asportation is "an essential element[76 MICHAPP 327] of the crime" of kidnapping. Since the Michigan Statute as written did not include the element of asportation, it was felt by the Court imperative that it be included to restrict the breadth of the kidnapping statute. We have no such problem here. M.C.L.A. § 750.301; M.S.A. § 28.533; is broad, and it is well within the province of the Legislature to write a...