People v. Burnette, Docket No. 5071

• Decision Date: 01 October 1969
• Docket Number: No. 2,Docket No. 5071,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter R. BURNETTE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 453

172 N.W.2d 453

19 Mich.App. 336

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter R. BURNETTE, Defendant-Appellant.

Docket No. 5071.

Court of Appeals of Michigan, Division No. 2.

Oct. 1, 1969.

Released for Publication Dec. 17, 1969.

William A. Gentz, Mt. Clemens, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, George N. Parris, Pros. Atty., Macomb County, Mt. Clemens, for plaintiff-appellee.

Before LESINSKI, C.J., and QUINN and DANHOF, JJ.

DANHOF, Judge.

The defendant was convicted by a jury of unlawfully soliciting charitable contributions without a license, contrary to M.C.L.A. §§ 400.301, 400.303 (Stat.Ann.1968 Rev. §§ 16.71, 16.73), and on a second count of obtaining money in excess of $100 under false pretenses, contrary to M.C.L.A. § 750.218 (Stat.Ann.1962 Rev. § 28.415). Defendant appeals his conviction alleging several errors committed during the trial.

Defendant first alleges as error the failure of the trial judge adquately to instruct the jury on the basic issues of law raised by the information, and further, specifically, in instructing the jury that a promise made to perform a future act could constitute a false pretense within the meaning of the statute. The record discloses that the defendant did not object to the instructions given by the trial court as provided by GCR 1963, 516.2, and in fact affirmatively stated that he was satisfied with the charge as given. Accordingly, this Court will not reverse unless the error complained of has resulted in a miscarriage of justice. C.L.1948, § 769.26 (Stat.Ann.1954 Rev. § 28.1096), People v. Keiswetter (1967), 7 Mich.App. 334, 151 N.W.2d 829, Leave to appeal denied 379 Mich. 791. From our examination of the record we cannot conclude that there has been such a miscarriage of justice as to require reversal on the basis of instructions given. People v. Liggett (1967), 378 Mich. 706, 148 N.W.2d 784.

Defendant complains particularly about the instructions given by the trial court on the issue of false pretense. The instruction given was:

'A false pretense, within the meaning of the statute, has been defined as a representation of some present existing fact or circumstance, intended and calculated to mislead, which is not true and which actually does deceive and induces persons deceived to part with something of value by reason thereof.

'However, there is an exception to this definition. When the representation is a promise to do something in the future, such as is alleged in this case, to use money for Crippled Children, or use money for the production of a show or entertainment, or the publishing of an educational safety booklet containing advertisement of persons contributing, without a present intention to perform this promise, then there is fraud.'

Defendant alleges that this instruction constitutes error because it in effect provides that a 'promise without the present intent to perform' constitutes false pretenses. We disagree. The first paragraph of the questioned instruction defines 'false pretenses' without any reference to inclusion of a promise to act in the future. The theory of the prosecution was that the defendant could be guilty of false pretenses based upon a promise to act in the future Coupled with misrepresentations of past and existing facts as inducements for the delivery of the money. Accord, People v. Vida (1966), 2 Mich.App. 409, 140 N.W.2d 559; affirmed 381 Mich. 595, 166 N.W.2d 465. The record amply supports conviction under this theory. On the record made herein, a jury properly could convict defendant of obtaining money under false pretenses because of his misrepresentations of Past and existing facts.

Defendant, however, questions the second paragraph of the instructions, claiming improper a charge to the jury which defines 'false pretenses' to include a promise to act in the future without a present intention to perform. Without reaching the merits of whether false pretenses include promises to act in the future, we reject defendant's interpretation of the second paragraph. We do not find the second paragraph to state, as defendant contends, that 'false pretenses' include promises to act in the future without a present intent to perform. The second paragraph defines 'fruad', and not 'false pretenses.' This paragraph excepts fraud from the definition of false pretenses, fraud being there defined to include an act to be done in the future without a present intent to perform. The jury charge defined 'fraud' properly. 37 Am.Jur.2d, Fraud and Deceit, § 64, p. 98. The defendant was not convicted of fraud. Therefore, the jury instruction of the second paragraph which excepted fraud from the definition of 'false pretenses' did not result in prejudicial error to defendant under the circumstances of the instant case.

Defendant claims that the trial court should have instructed the jury on the question of aiding and abetting. Defendant contends that he could not properly be found guilty except under such an instruction as he did not make all of the solicitations personally. We find this contention to be without merit. The record discloses that the defendant was the originator of the ideas, set up the entire organization, developed the 'pitch sheet' to be used in the telephone solicitations, received the monies, and in general was the main force behind the activities of the various enterprises in question. Representations made by the employees of the defendant or co-conspirators were properly received as evidence against the defendant. People v. Bagwell (1940), 295 Mich. 412, 295 N.W. 207. This evidence supports the finding of defendant's guilt as a principal under the facts of this case.

Defendant next claims error in a statement made by the trial judge that the defendant had waived the production of numerous witnesses that had been indorsed on the information, because their testimony would only be cumulative. The exact statement complained about is as follows:

'There is one other matter, and that relates to the witnesses that were indorsed on the information, and it's my understanding that there were some 80 witnesses indorsed on the information. It's my understanding that counsel have discussed this matter, and that an agreement was reached by counsel for the defendant, that the remaining witnesses would be either cumulative--

'MR. BLADEN: That's correct, your Honor.

'THE COURT: And would not need be produced, is that correct?

'MR. GORDON: (Defense Counsel) That's correct.

'THE COURT: Very well. All right. We will adjourn now till Tuesday morning.'

Defendant claims prejudicial error and cites as authority People v. Ruggero (1923), 223 Mich. 368, 193 N.W....