People v. Ewald, 85.

• Decision Date: 05 June 1942
• Docket Number: No. 85.,85.
• Citation: 302 Mich. 31,4 N.W.2d 456
• Parties: PEOPLE v. EWALD.
• Court: Michigan Supreme Court

302 Mich. 31

4 N.W.2d 456

PEOPLE

v.EWALD.

No. 85.

Supreme Court of Michigan.

June 5, 1942.

Robert G. Ewald was convicted of bribery, and he appeals.

Affirmed.

Appeal from Recorder's Court for City of Detroit; W. McKay Skillman, judge.

Before the Entire Bench.

Edward N. Barnard, of Detroit, for appellant.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., and William E. Dowling, Pros. Atty. for Wayne County, and John A. Ricca, John W. Gilmore, Henrietta E. Rosenthal, Ralph E. Helper, Asst. Pros. Attys., all of Detroit, for the People.

SHARPE, Justice.

Defendant Robert G. Ewald was convicted of bribery in violation of Act No. 328, § 118, Pub.Acts 1931 (Comp.Laws Supp.1940, § 17115-118, Stat.Ann. § 28.313), which reads as follows: ‘Any executive, legislative or judicial officer who shall corruptly accept any gift or gratuity, or any promise to make any gift, or to do any act beneficial to such officer, under an agreement, or with an understanding that his vote, opinion or judgment shall be given in any particular manner, or upon a particular side of any question, cause or proceeding, which is or may be by law brought before him in his offical capacity, or that in such capacity, he shall make any particular nomination or appointment, shall forfeit his office, and be forever disqualified to hold any public office, trust or appointment under the constitution or laws of this state, and shall be guilty of a felony, punishable by imprisonment in the state prison not more than ten years, or by fine of not more than five thousand dollars.’

The information charged defendant upon three counts. The first count in the information charged bribery in that defendant accepted a promise of $5,000 for corrupt purposes. The second and third counts charged acceptance of $1,000 and $4,000 in execution of the promise previously accepted. It was charged that the $1,000 was accepted on or about August 27, 1940, and $4,000 on or about September 18, 1940.

Defendant was a member of the common council of the city of Detroit. Under the ordinances of the city of Detroit, defendant, as a member of the common council, was to vote on the approval of all contracts of the Detroit housing commission.

The Detroit housing commission had under consideration the matter of the construction of the S. James Herman Gardens Housing Project and on August 16, 1940, passed a resolution in favor of awarding the contract for steel construction of the project to Maurice L. Bein, Inc.

This recommendation of the Detroit housing commission was rejected; and on August 27, 1940, the common council of the city of Detroit had before it for consideration whether the construction should be steel or concrete. On that date, it tabled a resolution to award the contract to A. Smith and Company and Lipman Construction Company for concrete construction. On September 3d, the common council voted in favor of this resolution and later the contract was awarded to A. Smith and Company and Lipman Construction Company. Defendant, Robert G. Ewald, voted in favor of Smith and Lipman for concrete construction.

Prior to this time there was much public discussion of graft, bribery and corruption in high official circles and Circuit Judge Homer Ferguson was designated by the circuit judges of Wayne county to conduct the proceedings for the discovery of crime under 3 Comp.Laws 1929, § 17217 et seq. (Stat.Ann. § 28.943 et seq.). As a result of this inquiry the circuit judge issued findings stating that he was satisfied that there was probable cause to suspect that defendant had committed a felony by accepting a bribe. The complaint and warrant, directed to law enforcement officers, commanded that defendant be apprehended and brought before the recorder's court of the city of Detroit to be dealt with according to law. A judge of the recorder's court sitting as an examining magistrate conducted an examination to determine whether a crime had been committed. Defendant appeared specially for the purpose of challenging the jurisdiction of the recorder's court to conduct an examination on the ground that Judge Ferguson had no power or jurisdiction to investigate or to take any action seeking the arrest and prosecution of defendant because if any crime was committed, it was committed in the city of Detroit. Defendant's motion to quash the information for the reasons above stated was denied by the examining magistrate and he was held for trial. The cause proceeded to trial and was submitted to a jury at the close of the people's case. Defendant did not testify or produce any defense witnesses. The jury found defendant guilty on all three counts.

Defendant appeals and contends that a circuit judge sitting as a one-man grand jury in Wayne county has no jurisdiction to issue a warrant covering a crime committed in the city of Detroit; that original and exclusive jurisdiction of all offenses committed within the city of Detroit is, by statute, vested solely in the recorder's court of the city of Detroit.

It is urged by the prosecuting attorney that proceedings for ‘discovery’ of crime in the Wayne county circuit court do not come within the grant of exclusive jurisdiction to the recorder's court of ‘prosecutions and proceedings' for crimes committed in the city of Detroit; that the statutes relating to the recorder's court provide that such court is to be governed by general law ‘so far as the same may apply.’

The recorder's court act, 3 Comp.Laws 1929, § 16290 et seq. Stat.Ann. § 27.3551 et seq., provides in part as follows:

‘The said recorder's court shall have original and exclusive jurisdiction of all prosecutions and proceedings in behalf of the people of this state, for crimes, misdemeanors, and offenses arising under the laws of this state, and committed withinthe corporate limits of the city of Detroit, except in cases cognizable by the police court of the city of Detroit, or by the justices of the peace of said city; and shall have power to issue all lawful writs and process, and to do all lawful acts which may be necessary and proper to carry into complete effect the powers and jurisdiction given by this act, and especially to issue all writs and process, and to do all acts which the circuit courts of this state, within their respective jurisdictions, may, in like cases, issued and do by the laws of this state: Provided, That this section shall not be construed to prevent the grand jury for the county of Wayne from inquiring into and presenting indictments, as heretofore, for crimes and offenses committed within the limits of said city.’ 3 Comp.Laws 1929, § 16300, Stat.Ann. § 27.3561.

‘All indictments for offenses committed within the limits of the city of Detroit, which may be found and presented to the circuit court for the county of Wayne, by the grand jury of said county, shall be forthwith certified and transmitted by the clerk of said circuit court to said recorder's court, and thereupon said recorder's court shall have as full and complete jurisdiction of said indictments as if the same had been originally presented to said recorder's court, and shall have full power to take all further proceedings thereon.’ 3 Comp.Laws 1929, § 16301, Stat.Ann. § 27.3562.

‘In all prosecutions for crimes, misdemeanors, and offenses arising under the laws of this state, said recorder's court shall be governed in the same manner as the circuit courts of the state are, by the general laws thereof, which, so far as the same may apply, are hereby made applicable to said recorder's court, its officers and all proceedings therein, subject to the provisions of this act.’ 3 Comp.Laws 1929, § 16320, Stat.Ann. § 27.3581.

The pertinent portions of the code of criminal procedure, 3 Comp.Laws 1929, § 17116 et seq., Stat.Ann. § 28.841 et seq., provide:

‘This act is hereby declared to be remedial in character and as such shall be liberally construed to effectuate the intents and purposes thereof.’ 3 Comp.Laws 1929, § 17117, Stat.Ann. § 28.842.

‘* * * The word ‘indictment’ includes information, presentment, complaint, warrant and any other formal written accusation.

‘The word ‘indictment,’ unless a contrary intention appears, includes any count thereof.' 3 Comp.Laws 1929, § 17118, Stat.Ann. § 28.843.

‘Whenever by reason of the filing of any complaint, which may be upon information and belief, any justice of the peace, police judge or judge of a court of record shall have probable cause to suspect that any crime, offense, misdemeanor or violation of any city ordinance shall have been committed within his jurisdiction, and that any person may be able to give any material evidence respecting such offense, such justice or judge in his discretion may, and upon the application of the prosecuting attorney, or city attorney in the case of suspected violation of ordinances, shall require such person to attend before him as a witness and answer such questions as such justice or judge may require concerning any violation of law about which he may be questioned; and the proceedings to summon such witness and to compel him to testify shall, as far as possible, be the same as proceedings to summon witnesses and compel their attendance and testimony, and such witnesses shall be entitled to the same compensation as in other criminal proceedings.’ 3 Comp.Laws 1929, § 17217, Stat.Ann. § 28.943.

‘It upon such inquiry the justice or judge shall be satisfied that any offense has been committed and that there is probable cause to suspect any person or persons to be guilty thereof, he may cause the apprehension of such person or persons by proper process and, upon the return of such process served or executed, the justice or judge shall proceed with the case, matter or proceeding in like manner as upon formal complaint. And if upon such inquiry the justice or judge shall find from the evidence that there is probable cause to believe that any public officer, elective or appointive and subject to removal by law,...