People v. Delaney, 55
| Decision Date | 01 October 1962 |
| Docket Number | No. 55,55 |
| Citation | 117 N.W.2d 176,367 Mich. 694 |
| Parties | PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Robert DELANEY, Edward Delaney and Emmet Delaney, Defendants and Appellants. |
| Court | Michigan Supreme Court |
Ray Cashen and Robert S. Axford, Detroit, for defendants and appellants.
George F. Taylor, Pros. Atty., and Robert L. Templin, Asst. Pros., Pontiac, for the People.
Before the Entire Bench, except ADAMS, J.
On February 28, 1961, defendants were charged with obtaining money by false pretenses contrary to the provisions of P.A. 1931, No. 328, § 218, as amended.* The complaint and warrant alleged that the money was obtained between the 1st and 19th days of October, 1959.
Preliminary examination was held on March 10, 1961. There was introduced and received in evidence six checks aggregating $1,146. These checks had been drawn on the Brighton State Bank by the Rite-Way Softener Service and signed by one Emmet Delaney. Two of the checks were made payable to defendant Robert Delaney, three to defendant Edward Delaney, and one to defendant Emmet Delaney. They were indorsed by the respective payees and cashed at the Buffet Bar in the city of Farmington at various times between the 1st and 19th of October, 1959. The owner of the bar testified she and her employees were well acquainted with the defendants and that she had been cashing checks for them for a period of about 1 1/2 to 2 years.
A bank identification card showing the existence of the checking account in the name of the Rite-Way Softener Service with Emmet Delaney authorized to sign checks was received into evidence. There was also offered and received in evidence a bank statement of the Brighton State Bank showing the deposits and withdrawals on said account during the month of October, 1959. The bank statement showed 17 deposits from October 1, 1959 through October 19, 1959, totaling $78,583.60. It showed no overdraft until October 21, 1959, and then one totaling only $11.15.
On March 17, 1961, the examining magistrate filed a lengthy written finding of the court. He concluded:
'Therefore to find that the crime charged in the complaint had been committed, the court must find that the checks in question were felse or bogus, designedly used with intent to defraud and cheat. * * *
'All of the checks offered in evidence were regular on their face. There was no proof that the drawer was not a legitimate concern with an active checking account with the drawee bank, that the payee on each check was fictitious, that the payee on the check was not the same person as the endorser. When the checks were presented for clearance payment was refused, not because of any irregularity or anything not genuine about them but rather because of insufficient funds. Only to use the term in the vernacular could the checks be called bogus or perhaps in a more common term 'rubber."
The magistrate found: (1) there was insufficient evidence of false representation; (2) the checks in question in and of themselves were valid, regular and genuine on their face and not false or bogus; (3) as to the evidence submitted, the State had not shown there was reasonable cause to believe a crime had been committed. The magistrate therefore dismissed the charges and discharged the defendants from custody.
On April 6, 1961, the Oakland county circuit court, on application by the prosecutor, ordered a writ of certiorari to issue. The examining magistrate filed his return to the writ and the prosecution made a motion to bind said defendants over to the circuit court. Defendants replied to said motion, which came on for hearing May 22, 1961.
The circuit court, after listening to the respective arguments, handed down its opinion and entered an order binding said defendants over for trial in the circuit court.
Defendants are here on leave granted raising three questions, only one of which we shall discuss:
Did the circuit court have the right to go outside the testimony taken before the examining magistrate and substitute its judgment in the place and stead of the examining magistrate and order the defendants bound over for trial?
The circuit court filed the following opinion:
'The court has examined the opinion of the justice wherein he ordered that the warrant be dismissed and the respondents discharged from custody and notes that the justice said that it is his responsibility to make a 'finding that the evidence adduced before him is sufficient within the purview of the statute to constitute the crime charged in the complaint.' I take it from that wordy sentence that he thinks it is the responsibility of the justice court to determine whether the respondents are guilty or innocent of the charge as brought.
'He also says, and I am quoting again from the justice, that the checks themselves were 'regular and genuine on their face and not false or bogus.' Of course he must have completely closed his eyes in that instance because this case has been in this court...
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