People v. Almashy

• Decision Date: 10 December 1924
• Docket Number: No. 179.,179.
• Citation: 229 Mich. 227,201 N.W. 231
• Parties: PEOPLE v. ALMASHY.
• Court: Michigan Supreme Court

229 Mich. 227

201 N.W. 231

PEOPLE

v.ALMASHY.

No. 179.

Supreme Court of Michigan.

Dec. 10, 1924.

Error to Recorder's Court of Detroit; Frank Murphy, Judge.

Charles Almashy was convicted of perjury, and he brings error. Affirmed.

Argued before McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Allen W. Kent, of Detroit, for appellant.

Andrew B. Dougherty, Atty. Gen., and Paul W. Voorhies, Pros. Atty, and W. McKay Skillman, Asst. Pros. Atty., both of Detroit for the People.

FELLOWS, J.

Defendant, for a consideration, became surety on the recognizance of one Greenspon, charged with violating the state prohibition law, for his appearance for examination in the recorder's court of the city of Detroit. Court had adjourned for the day, and defendant and the attorney employed to represent Greenspon met near, and went to, the residence of Judge Marsh, then one of the judges of the recorder's court, where the recognizance was signed by defendant. He also signed and swore to an affidavit, stating that there were no unsatisfied judgments or executions against him, and that he was on no other recognizance. He was familiar with the form of recognizance and the justification thereon used in the recorder's court, and had himself made them out. As matter of fact, there were unsatisfied judgments against him of over $1,400, and he was surety of several other recognizances in the same court, aggregating many thousands of dollars. After defendant had signed the recognizance and signed and sworn to the affidavit, the recognizance was given to the attorney, who took it to the jail, where Greenspon signed it and was released. The recognizance was given to the deputy sheriff, who some days later turned it over to a deputy clerk of the recorder's court. Defendant was informed against for perjury, convicted, sentenced, let to bail, and brings this writ of error.

1. Defendant moved for a change of vanue based largely on the claim that, because some of the judges of the recorder's court, whose names were indorsed as witnesses on the information, would be called by the people, undue weight might be given by the jury sitting in that court to their testimony. The motion was overruled. We do not think the trial judge abused his discretion. Greeley v Stilson, 27 Mich. 153;People v. Swift, 172 Mich. 473, 138 N. W. 662. Outside of Judge Marsh, who was not a judge of the recorder's court at the time of the trial, the judges called only testified to formal matters, none of which were denied by the defendant in his testimony.

2. It is fundamental that both the oath and the facts sworn to must be material in order to justify conviction of perjury. In the instant case they were both material. The question submitted to Judge Marsh was the sufficiency of the surety. Laying aside the question mooted in some courts, that the custody of the defendant is committed to the surety, and he becomes the jailer, and the court should take account of his character and the prohibility that he will see that defendant appears, a question not here for consideration, it is still patent that Judge Marsh, acting as magistrate out of court, had to determine the financial responsibility of the defendant. This he could only do safely by a showing under oath, and that responsibility depended, in no small degree, upon what obligations defendant had outstanding. That was as material to the inquiry as to what property he owned. One might own considerable property, but, if his obligations contingent and fixed largely exceeded its value, he would not make a very satisfactory surety. The facts in the instant case are very dissimilar from those in Pollard v. People, 69 Ill. 148. In Commonwealth v. Butland, 119 Mass. 317, it was held that the examining magistrate had inherently the power, independent of statute to require a written statement under oath by the proposed surety, and it was there said:

‘The issue before the commissioner was the sufficiency of the defendant as bail. The matter to be determined was whether he was worth enough to justify his approval as a surety. His statements as to the value of his property were material to this issue, and, if they were willfully and corruptly false, he would be liable to conviction for perjury.’

3. We do not agree with defendant's counsel that the failure to forthwith file the recognizance with the clerk of the recorder's court rendered the recognizance invalid. Counsel calls attention to section 15689, C. L. 1915, which directs the filing of examinations and recognizances with the clerk forthwith. But it also provides that, upon failure so to do, a rule may be entered requiring that it be done. It would be quite an idle ceremony to enter such a rule, if the recognizance had become nugatory by the neglect of the magistrate. The statute is directory (6 C. J. 1014), and the failure of the officer to follow it does not render the recognizance void (State v. Perry, 28 Minn. 455, 10 N. W. 778;State v. Davis, 43 N. H. 600;Havis v. State, 62 Ark. 500, 37 S. W. 957;Jennings v. State, 13 Kan. 80;Heiman v. State, 70 Tex. Cr. R. 480, 158 S. W. 276).

4. It is next insisted that, because the fendant Greenspon did not sign the recognizance in the presence of the magistrate, it was void, and, there being no valid bond, no prosecution for perjury can be here maintained. If the bond was a valid one without the signature of Greenspon, it is obvious that it was not void, because his signature was not made in the presence of the magistrate. In the early case of People v. Dennis, 4 Mich. 609, 69 Am. Dec. 338, this court held that a recognizance was a common-law obligation, and that the sureties may be bound separately from the principal. Unless this case has been overruled or should be overruled, it is controlling here. The recognizance in the instant case is in form a several obligation. Defendant's counsel insist that later cases of this court are controlling, and we should examine them to see if they are out of accord with the Dennis Case. In Lang v. People, 14 Mich. 439, the question before the court was the constitutionality of a statute permitting a summary judgment on criminal recognizances. The court was equally divided.

In Thomas Fowler's Case, 49 Mich. 234, 13 N. W. 530, the validity of a statute, permitting sentence to the Ionia Reformatory of persons convicted of disorderly conduct, was involved. The statute contained unworkable provisions for admitting to bail, and required the defendant and each of his sureties to enter into a recognizance. Some of its provisions were so unworkable and entirely ineffective for the purpose designed that it was held invalid. Clink v. Muskegon Circuit Judge, 58 Mich. 242, 25 N. W. 175, did not involve a criminal recognizance. Although some other questions were decided, not important here, the real question before the court was the power of a notary public to take acknowledgments of recognizance of special bail.

In Clute v. Ionia Circuit Judge, 131 Mich. 203, 91 N. W. 159, the recognizance was executed before the defendant was arrested, and it was very properly held to have no validity. In ...