People v. Batten
| Decision Date | 08 December 1967 |
| Docket Number | No. 2,Docket No. 203--4,2 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ivan BATTEN, William Tees and Peter Lazaros, Defendants-Appellants |
| Court | Court of Appeal of Michigan — District of US |
Nicholas Smith, Albert A. Goldfarb, Detroit, John N. O'Brien, Royal Oak, for defendants-appellants.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, S. Jerome Bronson, Pros. Atty., Oakland County, Pontiac, for plaintiff-appellee.
Before QUINN, P.J., and McGREGOR and MILLER *, JJ.
This is a criminal case of sizable dimensions involving the charges of obtaining money by false pretenses, 1 conspiracy to commit that substantive offense, 2 and conspiracy to avoid payment of State sales taxes, 3 all of which arose out of the 3-week life of the Golden Crown Furniture Company. Defendants Batten, Tees, Lazaros, and Benzos were engaged in a retail furniture business. Generally their procedure was to sell merchandise on credit and then resell the installment paper to finance companies. Defendants Ronchetto and Levine were key men in the finance company.
City Furniture Company, which was owned by certain defendants, had not been able to sell some $31,000 of its installment contracts because the credit of the buyers had not been approved. A plan was developed whereby a new corporation was formed, known as Golden Crown Furniture Company. These bad risks, and certain additional contracts involving fictitious purchasers of merchandise, were rewritten and submitted to the General Public Loan Corporation. Two of the defendants and conspirators who were of managerial rank in the loan company arranged it so that these deals were approved and the moneys were paid out. Not one of 264 transactions was rejected. In substance, the conspirators submitted worthless installment contracts to General Public Loan Corporation and secured cash for them. They knew at the time that the paper was worthless and that the paper would be approved within the General Public Loan Corporation only because of the fact that 2 persons in the local branch were members of the conspiracy and would alter and secrete reports. Through this method the worthless paper was converted into cash by false and fraudulent pretenses.
At the trial, testimony was taken about high speed night rides, sessions to practice writing signatures, the frequent changing of pens to give forged signatures an appearance of authenticity, beatings, cash to customers for signatures on inflated paper; installment sales of nonexistent merchandise, payments to insiders, deletions from summary reports intended for the home office of the loan company, and a dramatic night meeting of some parties for a transaction involving a bank bag and an anticipated $30,000.
Defendant Lazaros was tried by jury, and found guilty on all counts. Defendant Ronchetto was found guilty by the jury on counts 1 and 2, and not guilty on count 3. The other defendants, Batten, Tees, Beznos, and Levine, were found guilty by the judge on counts 1 and 2. The trial judge set aside the jury verdict of guilty on count 3 as to Lazaros.
The first allegation of error asserted in defendants' brief is based on the denial of the motion to quash the information 'on the ground that the first count charged two different felonies provable by different facts.' This ground, recited in appellants' brief, was not presented in the original motion. As stated at page 3 of the brief of the plaintiff:
'After a search of the trial record and exhibits the people cannot discover just where or if defendants ever made any objection on the grounds of vagueness or duplicity, such as they now make before this court.'
A similar search made by this Court brings the same result. In any event the claim is without merit. The amended information was in the usual from and a bill of particulars was also filed which eliminated any claim of failure to reasonably apprise of the nature of the charges. C.L.1948, § 767.45 (Stat.Ann.1954 Rev. § 28.985.) It has been held that an information is not defective for duplicity if distinct offenses are included within the offense charged. In People v. Luttermoser (1900), 122 Mich. 562, 565, 81 N.W. 565, 566, it was held:
It was necessary to allege and prove the circumstances involved in the installment paper transactions since they constituted the false pretenses by means of which the finance company was induced to part with money. The information reduced to its essentials alleged that the named parties 'with intent to cheat and defraud * * * did designedly and falsely represent and pretend that certain written retail sales installment contracts were bona fide, * * * whereas the same were false and worthless * * * and the General Public Loan Corporation * * * believing said false pretenses and representations * * * were * * * induced to deliver * * * certain moneys.' Thus the elements of intent, misrepresentation of fact, and accomplishment were pleaded and, as was stated in Luttermoser, supra, 'the averment as to obtaining the money is single'.
Defendant also assert error in granting permission to amend the information prior to trial. It is sufficient to state that the court has discretion to permit such amendment of pleadings, C.L.1948, § 767.76 (Stat.Ann.1954 Rev. § 28.1016), and that so long as the amendment is as to form, which was true here, there is no requirement of rearraignment and further examination. In People v. O'Hara (1936), 278 Mich. 281, 301, 270 N.W. 298, 305, the Court ruled:
No request for continuance was made when the amended information was filed, nor was error in permitting the amendment asserted even as late as the motion for new trial. The following statement is in point:
People v. Kennan (1936), 275 Mich. 452, 454, 266 N.W. 468, 469.
See, also, People v. Weatherspoon (1967), 6 Mich.App. 233, 236, 148 N.W.2d 891. This assertion of error was raised for the first time in the reply brief and comes too late.
Defendants assert duplicity by reason of joining count 3, which was the charge of conspiracy to evade sales taxes. In the initial brief, defendants state:
'For the purposes of this appeal, the third count will not be considered because all defendants were acquitted on said charge.'
This was not presented to the trial court and will not be considered now.
The motion to quash made before trial did assert the following grounds which are raised again by defendants' brief: that the return of the magistrate was improper and that certain testimony was taken out of the presence of defendant Lazaros. The court file indicates that the return of the magistrate as to each defendant is on the ordinary form and recites:
'It appearing to me, that the said offense was committed as charged in said annexed complaint and warrant counts 1, 2, and 3, that the same is not cognizable by a justice of the peace and that there was probable cause to believe the said defendant(s) guilty * * *.'
The courts speak through their orders. In Michigamme Oil Co. v. Huron Valley Building & Savings Ass'n (1937), 280 Mich. 12, 14, 273 N.W. 329, 330, the Court said:
'We have repeatedly held that:
"Courts speak through their judgments and decrees, not through their opinions.' Boyle v. Berg (1928), 242 Mich. 225, 218 N.W. 757, 758.'
See, also, Miskinis v. Bement (1949), 325 Mich. 404, 38 N.W.2d 897.
The order binding defendants over to circuit court must override any informal remarks alleged by counsel's affidavit to have been made by the magistrate as to the complicated nature and magnitude of the case. 4
It appears that the other point is also without merit. The defendant Lazaros requested permission to be absent for 1 day of the examination. He appeared and asked the justice to be excused because of the illness of a child. His attorney remained. This was not presented in the first instance as a request for continuance denied, but as a request for excuse granted by consent of all concerned. There was no prejudice.
The second allegation of error involves the order of proof. As stated by the defendants:
'Did the trial court err in admitting evidence of acts and declarations of co-conspirators before a showing of a prima facie case of conspiracy?'
It is clear that the acts and declarations of conspirators in furtherance of their purpose are admissible against all members of the conspiracy if made during the period of the conspiracy. People v. Trilck (1965), 374 Mich. 118, 132 N.W.2d 134; Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. See, also, 4 A.L.R.3d 671. It is also clear that this conspiracy must...
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