People v. Ept, 59.

• Decision Date: 06 October 1941
• Docket Number: No. 59.,59.
• Citation: 300 N.W. 105,299 Mich. 324
• Parties: PEOPLE v. EPT.
• Court: Michigan Supreme Court

299 Mich. 324

300 N.W. 105

PEOPLE

v.EPT.

No. 59.

Supreme Court of Michigan.

Oct. 6, 1941.

Norman C. Ept was convicted of embezzlement, and he appeals.

Conviction vacated and new trial granted.Appeal from Circuit Court, Wayne County; Robert M. Toms, judge.

Argued before the Entire Bench.

Edward N. Barnard, of Detroit, for appellant.

Herbert J. Rushton, Atty. Gen. of Michigan, and William E. Dowling, Pros. Atty., of Wayne County, and William R. Bolio, and Ralph E. Helper, Asst. Pros. Attys., all of Detroit, for the People.

WIEST, Justice.

Upon trial by jury defendant was convicted of the crime of embezzling moneys of the city of Lincoln Park while its treasurer in 1936. He prosecutes review by appeal.

We need consider but one alleged error. The information was in short form, based on § 175 of the penal code, Act No. 328, Pub.Acts 1931, Stat.Ann. § 28,372, relative to embezzlement by public officers. The information was permissible in short form under the code of criminal procedure, Comp.Laws 1929, § 17274, Stat.Ann. § 28.1000, provided the prosecuting attorney, if seasonably requested by the respondent, should furnish a bill of particulars setting up specifically the nature of the offense charged. Comp.Laws 1929, § 17258, Stat.Ann. § 28.984.

In due season defendant requested the prosecuting attorney to furnish him a bill of particulars. The request was ignored. Upon defendant's motion the court ordered the prosecutor to furnish defendant a bill of particulars. Thereupon the prosecuting attorney served the following:

‘Please take notice that at the trial of said cause, the prosecutor will give in evidence all of the items shown in the examination, and in addition, the following items as to taxpayer, date and amount: July 24, 1936 Dr. Sanford . . . $133.92’, and listed 16 other payments by checks, giving dates and amounts.

At the opening of the trial the prosecutor conceded that the check items set up in the bill of particulars were not embezzled, but claimed they were admissible under the theory that they enabled defendant to cover up his real embezzlement and, therefore, had bearing upon the felonious intent of defendant.

The prosecutor states in his brief: ‘To clarify the issues, the people admit that the check items listed in the bill of particulars and proved at the examination were deposited to the credit of the city of Lincoln Park. The people also admit that the proceeds so deposited were not unauthorizedly withdrawn from the bank by defendant. The embezzlement claimed by the people is of cash funds that came over the counter in defendant's office while he was treasurer of the city of Lincoln Park.’

The so-called bill of particulars did not comply with the order of the court nor with the intendment of the statute, was misleading, unfair, and a deprivation of defendant's right not only to be informed specifically of the nature of the offense but as well to have the trial confined to the particulars set up therein. Objections to evidence early in the trial brought this matter to the attention of the court but the prosecutor was permitted to go unhindered and, over defendant's objection, was not limited to items shown at the preliminary examination. The court not only permitted proof of the items set up in the so-called bill of particulars but, over objection, admitted proof on items not within the bill of particulars or disclosed at the preliminary examination.

Had the court denied defendant a bill of particulars and at the trial strictly confined the prosecution to items shown at the preliminary examination there would be some reason, under the holding in People v. McKinney, 10 Mich. 54, for saying defendant was not...