People v. Bommarito, 65.
| Decision Date | 05 June 1944 |
| Docket Number | No. 65.,65. |
| Parties | PEOPLE v. BOMMARITO et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Joe Bommarito and others were convicted of conspiracy to violate the gaming law, and they appeal.
Judgments affirmed.
Appeal from Recorder's Court of Detroit; Donald Van Zile, judge.
Before the Entire Bench.
P. J. M. Hally, of Detroit, for appellants.
Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, William E. Dowling, Pros. Atty., and Raymond J. De Ryck, and Henrietta E. Rosenthal,Asst. Pros. Attys., all of Detroit, for appellee.
Defendants Bommarito, Lacy, Kohn and Weisberg were granted leave to appeal from sentences following their conviction under an information containing 14 counts, based upon conspiracy to violate the gaming law, §§ 301 to 306, inclusive, and §§ 309 and 372 of Act No. 328, Pub.Acts 1931 (Stat.Ann. §§ 28.533 to 28.538, inclusive, and §§ 28.541 and 28.604).
All of the defendants were apprehended in or near the premises located at 1431 Broadway in the city of Detroit, which was a store where phonograph records were sold by the ‘Swingland Record Company.’ Sergeant O'Brien of the Detroit police department had been observing the permises and had seen Weisberg and Kohn enter the place ‘carrying a leather zipper bag and a dirty cloth bag like a money bag they use in banks' and had ‘watched them go directly into the store, through the store and into the back room at the rear of the store’ and later leave the place, carrying nothing. Several evenings afterwards he saw these same defendants come out of the premises. He then left and later that evening returned with other officers and at about 10:40 p. m., he saw Bommarito and Lacy drive up in a car out of which they took a leather bag, through the store and into the back room. He entered the open store and knocked on the door of the back room. When asked who was there, he mumbled ‘It is Eddie.’ The door was opened and he saw Bommarito emptying the contents of the bag upon a table where he observed a quantity of money and various gambling paraphernalia which he knew, from his experience as a police officer, was used in the policy, numbers and mutuel business. He placed Bommarito and Lacy under arrest and confiscated the money and gambling property. As he was leaving the premises with Bommarito and Lacy, he saw Kohn and Weisberg standing in front of the store whom he arrested for investigation of conspiracy to violate the gambling law and, upon search, found other gambling paraphernalia in their possession. In the back room of the premises were two locked safes. Sergeant O'Brien obtained a search warrant for them and, upon opening the safes, they were found to contain gambling paraphernalia and over $7,000 in money.
Before the jury was sworn defendants filed a motion to quash all counts in the information except one on the grounds of duplicity and misjoinder of counts, and to suppress the evidence claimed to have been unlawfully seized, both of which motions were denied. The jury found each of the defendants guilty on all of the 14 counts in the information.
Reversal is sought because of the court's failure to quash all but one count in the information, failure to suppress the evidence, error in the admission of prior convictions of Bommarito, Weisberg and Kohn, error in the admission of evidence of the activities of the so-called ‘Michigan Mutual Distributing Company,’ not a party defendant and not controlled or operated by any of the defendants, and because the evidence does not support a general verdict of guilty on all 14 counts.
In support of the claim of misjoinder in the information, appellants cite authorities which have to do generally with joinder of distinct and separate offenses where the elements of proof are not the same. There is no question that the doctrine is well settled that a person should not be subjected to trial for two separate and distinct offenses at one time. People v. Rohrer, 100 Mich. 126, 58 N.W. 661. But it is also well settled that the People cannot be required to elect between counts where the offenses committed arose...
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