People v. Baxter

• Decision Date: 04 December 1928
• Docket Number: No. 120.,120.
• Citation: 222 N.W. 149,245 Mich. 229
• Parties: PEOPLE v. BAXTER.
• Court: Michigan Supreme Court

245 Mich. 229

222 N.W. 149

PEOPLE

v.BAXTER.

No. 120.

Supreme Court of Michigan.

Dec. 4, 1928.

Error to Circuit Court, Kent County; Orien S. Cross, Judge.

Archie W. Baxter was convicted of an attempt to bribe, and he brings error. Affirmed.

Argued before the Entire Bench, except POTTER, J. Willard McIntyre, of Grand Rapids (George E. Nichols, of Ionia, of counsel), for appellant.

Wilber M. Brucker, Atty. Gen., and Jay W. Linsey, of Grand Rapids, for appellee.

WIEST, J.

Under an information charging defendant in one count with bribery and in another count (involving the same instance and circumstances) with attempt to bribe, he was convicted, by verdict of a jury, of an attempt to bribe. Review is by writ of error.

The information charged that defendant acted in concert with others named therein. Defendant was tried separately. It is said that one other, so named in the information, pleaded guilty to bribery, and another, upon trial, was convicted of bribery. Inasmuch as it was claimed by the prosecution that all persons named in the information were acting in concert, we are urged by counsel for defendant to hold that he should have been convicted, it at all, of bribery, and, under the evidence, it was error to submit both counts to the jury. The prosecution was wise in laying the charge in two counts, for there was evidence tending to show bribery consummated, and also an abortive attempt to bribe.

Defendant invokes the rule, operative in some jurisdictions by judicial holdings, and in others by statute, that there can be no conviction of an attempt to commit a felony, if the evidence establishes consummation of the felony. This is the rule in Illinois. People v. Lardner, 300 Ill. 264, 133 N. E. 375, 19 A. L. R. 721. But the rule is not general, and does not prevail in this jurisdiction. If an information admits of conviction of an attempt to commit a felony, an accused may be found guilty of the attempt, though the evidence shows a completed offense. People v. Miller, 96 Mich. 119, 55 N. W. 675;People v. Blanchard, 136 Mich. 146, 98 N. W. 983. Such a verdict may be illogical, but the people cannot complain, and the defendant must accept it, even though less in measure than his just deserts; at least he cannot be heard to say that he has suffered injury.

In People v. Hoover, 243 Mich. 534, 220 N. W. 702, defendant was convicted of an assault, and it was urged ‘that, under the proofs, defendant was either guilty of taking indecent liberties [the charge] or not guilty of any offense.’ We made answer: ‘This argument has been made before, but not with success'-citing People v. Martin, 208 Mich. 109, 175 N. W. 233;People v. Garner, 211 Mich. 44, 178 N. W. 75.

Defendant testified that there was no attempt to bribe Oscar B. Frye, and no bribery committed. Oscar B. Frye testified that no bribe was offered him and no attempt was made to bribe him, so far as he knew. Testimony in behalf of the prosecution tended to show a concerted action by defendant and others to bribe Oscar B. Frye and of bribery consummated.

The prosecuting attorney claims that, under an information charging bribery consummated, there may be a conviction of bribery attempted. That question is not presented by this record, and we express no opinion thereon. An information may charge the crime of consummated bribery in one count and attempt to bribe in another, and, if some of the evidence at the trial shows bribery consummated, and other evidence shows an attempt to bribe only, an accused may be convicted of either offense as the jury may find.

At the close of proof in behalf of the prosecution counsel then representing defendant moved the court to dismiss the count for bribery, and, at the close of all the proofs, requested the court to instruct the jury that there was no bribery shown, and to limit consideration to the issue of attempt to bribe. The court refused the motion and the request. It is now claimed that, under the evidence, defendant was guilty, if at all, of bribery. The jury found defendant guilty of an attempt to bribe, and by such verdict disclosed elimination of the charge of bribery and consideration of the case exactly within the limit contended by counsel for defendant at the trial. There is no merit in the point urged.

In cross-examining witnesses called by the defense, the prosecutor had the aid and advantage of a transcript of their testimony given in a proceeding for discovery of the crimes, here charged. Counsel for defendant claimed the right to also have the aid thereof in redirect examination of such witnesses. The court ruled that counsel could not have the transcript until it was proved by the stenographer who took the testimony. The stenographer was the last witness called by the prosecution in rebuttal, and the transcript was then of no use to counsel for defendant, except in argument to...