People v. Davis

Decision Date01 April 1980
Docket NumberNo. 1,Docket No. 60034,1
Citation408 Mich. 255,290 N.W.2d 366
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Rudy DAVIS, Defendant-Appellee. Calendar408 Mich. 255, 290 N.W.2d 366
CourtMichigan Supreme Court

William L. Cahalan, Pros. Atty., Patrick J. Foley, Director, Wayne County Organized Crime Task Force, David A. Hogg, Asst. Pros. Atty., Detroit, for plaintiff-appellant.

Armand D. Bove, Richard C. McKnight, Harper Woods, for defendant-appellee.

COLEMAN, Chief Justice (to affirm).

The facts and the procedural context in which the issue presented by this case arose are adequately set forth in Justice Levin's opinion. Basically, defendant, a police officer, was convicted of conspiracy to obstruct justice 1 by agreeing with Charles Williams not to arrest Williams in exchange for money. 2 The Court of Appeals reversed defendant's conviction on the basis that Wharton's Rule prohibited this conspiracy prosecution. Leave to appeal was granted and limited to "whether the Court of Appeals erred in ruling that Wharton's Rule should be applied so as to preclude conviction of defendant-appellee of the charge of conspiracy to obstruct justice". 3 Wharton's Rule, as it later became known, was originally a succinct statement of a number of substantive case-law limitations on the law of criminal conspiracy which had developed. It stated:

"When to the idea of an offense plurality of agents is logically necessary, conspiracy, which assumes the voluntary accession of a person to a crime of such a character that it is aggravated by a plurality of agents, cannot be maintained. As crimes to which concert is necessary (i. e., which cannot take place without concert), we may mention dueling, bigamy, incest, and adultery; to the last of which the limitation here expressed has been specifically applied by authoritative American courts. We have here the well-known distinction between concursus necessarius and concursus facultativus ; in the latter of which the accession of a second agent (to) the offense is an element added to its conception; in the former of which the participation of two agents is essential to its conception, and from this it follows that conspiracy, the gist of which is combination, added to crime, does not lie for concursus necessarius. In other words, when the law says, 'a combination between two persons to effect a particular end shall be called, if the end be effected, by a certain name,' it is not lawful for the prosecution to call it by some other name; and when the law says, such an offense e. g., adultery shall have a certain punishment, it is not lawful for the prosecution to evade this limitation by indicting the offense as conspiracy. Of course when the offense is not consummated, and the conspiracy is one which by evil means a combination of persons is employed to effectuate, this combination is of itself indictable." 4

Plaintiff argues that Wharton's Rule is not applicable in this case because a plurality of agents is not logically necessary to commit the offense of obstruction of justice, see People v. Alexander, 35 Mich.App. 281, 192 N.W.2d 371 (1971). In the context of this case, it has been contended that a police officer's failure to arrest a felon for a corrupt motive is an obstruction of justice, and that this offense does not require a plurality of actors. Accordingly, Wharton's Rule would not bar the conspiracy conviction because more actors were involved than required to commit the charged offense and because the agreement in this case increased the dangers to which society was exposed. 5 Plaintiff claims that the allegations in the indictment that the officer agreed to fail to arrest in exchange for money were not a necessary element of the charged offense, so as to require a plurality of agents, but were only a superfluous explanation of the officer's corrupt motive and the means by which the obstruction was to be accomplished, see Glasser v. United States, 315 U.S. 60, 66-67, 62 S.Ct. 457, 463, 86 L.Ed. 680 (1942); United States v. Manton, 107 F.2d 834 (CA 2, 1938), cert den., 309 U.S. 664, 60 S.Ct. 590, 84 L.Ed. 1012 (1940).

Even assuming arguendo that plaintiff's description of the common-law offense of obstruction of justice is accurate, one cannot ignore the allegation in the indictment that the officer agreed to omit his duty for a reward. Charging an officer with agreeing to omit a duty in exchange for a reward necessarily entails a receipt by the officer of a promise of a reward as consideration for his failure to arrest. This charge sets forth all the elements of the statutory offense defined in M.C.L. § 750.123; M.S.A. § 28.318, which provides:

"Any * * * officer * * * who shall receive * * * any * * * promise to pay or give money * * * as a consideration * * * for omitting or delaying to arrest * * * shall be guilty of a misdemeanor". 6

Therefore, since the Legislature has expressly made a provision for the punishment of an officer who receives a promise or any valuable thing as consideration for delaying an arrest, this conduct is not punishable under M.C.L. § 750.505; M.S.A. § 28.773 because it is not an offense "for the punishment of which no provision is expressly made by any statute of this state".

The Legislature's decision to establish a specific punishment for an officer who receives a promise as consideration for omitting a duty requires the analysis of other principles incorporated into Wharton's Rule beyond merely whether the target offense of the charged conspiracy can theoretically be committed by one person. One principle incorporated into the rule states:

"In other words, when the law says, 'a combination between two persons to effect a particular end shall be called, if the end be effected, by a certain name,' it is not lawful for the prosecution to call it by some other name; and when the law says, such an offense e. g., adultery shall have a certain punishment, it is not lawful for the prosecution to evade this limitation by indicting the offense as conspiracy." 2 Wharton, Criminal Law (12th ed.), § 1604, p. 1862.

This principle applies to this case because the Legislature has designated M.C.L. § 750.123; M.S.A. § 28.318 as the appropriate offense for, and established an express provision for the punishment of, an officer who receives a promise to pay money as consideration for failing to perform a duty. The receipt of this promise as consideration is a substantive offense under M.C.L. § 750.123; M.S.A. § 28.318. 7 Plaintiff has not shown any reason to justify a conviction in this case under any provision other than M.C.L. § 750.123; M.S.A. § 28.318.

For these reasons, the resolution of this case is controlled by the principles applied in United States v. Dietrich, 126 F. 664 (CCD Neb. 1904). In Dietrich, defendant was charged with conspiracy to commit an offense against the United States by agreeing with someone to receive a bribe for procuring an office of postmaster for that person. However, since it was an offense under 1878 U.S.Rev.Stat. (2d ed.), § 1781; 12 Stat. 577 for a member of Congress to agree to receive a bribe and an offense for anyone to offer or agree to give a bribe, the Court concluded that the formation of this agreement was not punishable as a conspiracy because it was a substantive offense under § 1781.

The only significant difference between Dietrich and this case is that in Dietrich both conspirators were punishable for substantive offenses defined in one section of the United States Code while in this case, M.C.L. § 750.123; M.S.A. § 28.318 applies only to police officers and not to Williams. However, this difference is not sufficient to distinguish the logic of Dietrich. Williams' conduct in promising any gratuity whatever to Davis to influence his decision to omit his duty was unlawful under M.C.L. § 750.117; M.S.A. § 28.312. 8 The Legislature's decision to create a separate, more specific section of the same Chapter of the Penal Code (XVII) to address the instances when a police officer receives a promise as consideration for omitting a duty is not sufficient to distinguish this case from the Dietrich principle. It does not justify the conclusion that Wharton's Rule is inapplicable because one of the parties necessary for the commission of the offense is not subject to prosecution under the same section for his activity. That would be a distinction without a difference.

It is true that when an officer, one who has sworn to uphold and enforce the law and is entrusted with the power and responsibility of so doing, agrees to omit a duty for reward, society is endangered directly, by not bringing the offender to justice, and indirectly, by compromising everyone's respect for the law. Therefore the agreement to omit this duty for reward should not be immune from prosecution based on the principle incorporated into Wharton's Rule that no conspiracy prosecution should be permitted when the agreement poses no distinct danger to society. 9 This conclusion is underlined by the Legislature's decision to punish exchanges of offers or promises under M.C.L. § 750.123; M.S.A. § 28.318 and M.C.L. § 750.117; M.S.A. § 28.312.

Nevertheless, because the Legislature has established express provisions punishing these activities, the prosecutor should not be permitted to circumvent those limitations by prosecuting the activities as a conspiracy.

Concert and a plurality of agents are indispensable elements of the substantive offense as set forth in the indictment. The receipt of a promise as consideration for omitting a duty necessarily involves more than one person. No additional danger was present from this agreement that is not necessarily present in any violation of M.C.L. § 750.123; M.S.A. § 28.318. Accordingly, Wharton's Rule is applicable in this case to prohibit the use of a conviction of conspiracy to obstruct justice as a method for circumventing the punishment...

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