People v. Chambers, 120.
| Decision Date | 01 March 1937 |
| Docket Number | No. 120.,120. |
| Citation | 279 Mich. 73,271 N.W. 556 |
| Parties | PEOPLE v. CHAMBERS et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Leslie Chambers and Simon Slosberg were convicted of conspiracy, and they appeal in the nature of a writ of error.
Reversed, and new trial granted. Appeal from Circuit Court, Oceana County; Earl C. Pugsley, Judge.
Argued before the Entire Bench.
Clifford A. Bishop and Howard Cline, both of Flint, and F. E. Wetmore, of Hart, for appellants.
Joseph R. Joseph, Pros. Atty., and Stephen J. Roth, Asst. Pros. Atty., both of Flint, for the People.
Defendants were arrested, informed against, and charged with conspiracy. Subsequent to their initial arraignment an amended information was filed against them, a copy of which is in the note annexed hereto (at end of this opinion). Upon trial, defendants were convicted by jury. Subsequently a motion was made to set aside the verdict and to grant a new trial, which motions were overruled, and defendants bring the case here by appeal in the nature of a writ of error.
Defendants insist the original information and the amended information upon which they were convicted were bad for duplicity; (2) the information did not charge any offense known to the law; (3) the court should have required the People to separate the various counts of the information; (4) there was error in the admission of testimony; (5) the court should have directed a verdict of not guilty in favor of the defendant Slosberg; (6) there was error in the charge of the court; (7) defendants are entitled to a new trial by reason of misconduct of the officer in charge of the jury.
An examination of the information filed in this case indicates it charges conspiracy upon the part of the defendants not only to steal property belonging to the General Motors Corporation, but also to receive and traffic in property stolen from the General Motors Corporation, knowing it had been stolen.
It is argued that inasmuch as the stealing of property is inconsistent with the receiving of the same property, knowing it to have been stolen, the information is bad in that it charges commission of two offenses. The crime of conspiracy with which the defendants are charged does not, however, depend upon the things done in pursuance of the conspiracy, upon the success or failure of the conspiracy entered into between the parties. There was one conspiracy, no matter if it did have a multiplicity of objects. This conspiracy was to do unlawful and illegal acts. We think the information filed against defendants was not bad for duplicity. People v. Tenerowicz, 266 Mich. 276, 253 N.W. 296;Heike v. United States, 227 U.S. 131, 33 S.Ct. 226, 57 L.Ed. 450, Ann.Cas.1914C, 128;United States v. Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211;People v. Tavormina, 257 N.Y. 84, 177 N.E. 317, 75 A.L.R. 1405. Under all the authorities, a conspiracy to commit a crime is a separate and distinct offense from the crime which it is the object of the conspiracy to commit. 12 C.J. 542. So the conspiracy, if entered into, is not dependent upon whether the conspiracy contemplated the stealing of property from the General Motors Corporation or the dealing with property stolen from the General Motors Corporation, knowing it to have been stolen. The information charges the conspiracy contemplated both these things, and the multiplicity of criminal activities contemplated by a conspiracy was certainly no defence to an indictment charging the conspiracy itself. We think the information was not void for duplicity.
It is contended the information does not charge any offense known to the law. The statute, Act No. 328, Pub.Acts 1931, § 505, provides: ‘Any person who shall commit any indicatable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than five years or by a fine of not more than two thousand five hundred dollars.’ Mason's 1935 Supplement to Comp.Laws 1929, § 17115-505.
We think the information charges a conspiracy to violate the law, and that such conspiracy was an indictable offense at common law and is, therefore, good under this statute.
All of the acts and facts upon which any reasonable presumption of the truth or falsity of the charge made against the defendants in the information could be founded were admissible. Hearsay testimony is not admissible under any circumstances because the essential right of cross-examination is absent. But where a conspiracy is charged, where persons are engaged in a common enterprise, when there is mutual agency, evidence of the statements of one conspirator may be introduced against the other conspirators. Though without the existence of such a conspiracy, the existence of such mutual agency, the testimony would be hearsay and not admissible. And in all cases of conspiracy, what is said or done by one of the alleged conspirators, before the conspiracy was formed or after its object attained and its work fully completed, not in the presence or hearing of the others, and not brought to their knowledge or ratified by them, is not admissible against them for the reason the basic element of joint agency does not exist. They are statements made before the conception or after the completion of the offense to which the defendant is not a party, and by which he may not be bound. People v. Lewis, 264 Mich. 83, 249 N.W. 451. But the res gestae of a conspiracy is limited only by the period during which the parties are engaged in an unlawful enterprise. People v. Lewis, supra. And where a conspiracy exists, what was said or done by any of the members of the conspiracy in furtherance of such conspiracy is admissible. In this case, whatever may have been said or done by any of the parties in pursuance of the conspiracy entered into or existing between them to steal or deal in property stolen from the General Motors Corporation was admissible in evidence, even though all of the parties may not have been present of may not have known about what was said. We can add nothing to what was said about the admissibility of...
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