People v. Fleming

• Decision Date: 20 July 1923
• Docket Number: No. 146.,146.
• Citation: 194 N.W. 714,224 Mich. 199
• Parties: PEOPLE v. FLEMING.
• Court: Michigan Supreme Court

224 Mich. 199

194 N.W. 714

PEOPLE

v.FLEMING.

No. 146.

Supreme Court of Michigan.

July 20, 1923.

Exceptions to Circuit Court, Oceana County; John Vanderwerp, Judge.

Ella Fleming was convicted of stealing, and excepts before judgment. Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.

Fellows, Clark, and Moore, JJ., dissenting. Sharpe, J., dissenting in part.Earl C. Pugsley, Pros. Atty., of Hart, and Merlin Wiley, Atty. Gen., for the People.

A. S. Hinds, of Shelby, and F. E. Wetmore, of Hart, for defendant.

BIRD, J.

Defendant was convicted of stealing a slipper from a retail store in Shelby. The people's proofs showed that defendant took the slipper when no one was waiting upon her, placed the same in her pocket, and went to a rest room in another part of the store. One of the proprietors followed her and demanded admission. The door was unlocked, and the slipper surrendered upon his demand. Defendant's version of the incident was that she took the slipper to the rest room to try it on; that she had on darned stockings, and did not care to expose her foot out in the store, and that she had no intent of stealing it. Upon the issue of felonious intent the jury found against her.

1. For the purpose of characterizing her intent the prosecutor offered proof of other instances of shoplifting by her in the stores at Shelby. This testimony was objected to, and it raises the principal question in the case. Defendant's counsel argue that it was giving proof of other independent offenses to convict her of the one charged. Of course, the question is whether the admission of this proof came within the exception to the general rule that the offense charged may not be proved by evidence of the commission of other offenses.

The exception to the general rule is well stated in People v. Seaman, 107 Mich. 348, 65 N. W. 203,61 Am. St. Rep. 326:

‘Where a felonious intent is an essential ingredient of the crime charged, and the act done is claimed to have been innocently or accidentally done, or by mistake, or when the result is claimed to have followed an act lawfully done for a legitimate purpose, or where there is room for such an inference, it is proper to characterize the act by proof of other like acts producing the same result, as tending to show guilty knowledge, and the intent or purpose with which the particular act was done, and to rebut the presumption that might otherwise obtain.’

In Wharton's Criminal Law (6th Ed.) § 649, it is said:

‘Where the scienter or quo animo is requisite to, and constitutes a necessary and essential part of, the crime for which the person is charged, and proof of such guilty knowledge or malicious intention is indispensable to establish his guilt in regard to the transaction in question, testimony of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent is competent, notwithstanding they may constitute in law a distinct crime.’

In 3 Greenleaf's Evidence, § 15, the same rule is discussed:

‘In the proof of intention, it is not always necessary that the evidence should apply directly to the particular act with the commission of which the party is charged, for the unlawful intent in the particular case may well be inferred from a similar intent proved to have existed in other transactions, done before or after that time.’

And this exception to the general rule has been applied in prosecutions for larceny. See note in 62 L. R. A. 231. This note cites numerous larceny cases where the exception to the general rule has been applied.

If the people's contention were true, defendant was guilty of larceny. If defendant's version were true, she was innocent of the offense charged. There were no material disagreements on the facts. The issue was purely one of felonious intent. For the purpose of characterizing that intent the prosecutor showed by one witness that on the same day defendant went into another store and took some candy and placed it in her bag, and left the store without paying for it, or speaking about it. Other instances of like character were testified to. Had defendant denied taking or having the slipper, the testimony would have been incompetent, because the larceny charged could not be established by proof of another larceny. But when defendant admits doing with the slipper what the prosecution charges, and her admitted acts were subject to two constructions, one an innocent and the other a guilty one, then the only issue is ont of felonious intent, and this intent may be characterized by other similar instances. See People v. Giddings, 159 Mich. 523, 124 N. W. 546,18 Ann. Cas. 844;People v. MacGregor, 178 Mich. 468, 144 N. W. 869;People v. Wakely, 62 Mich. 303, 28 N. W. 871; Rapalje on Larceny, etc., § 200; 1 Wigmore on Evidence, § 346; Weyman v. People, 6 Thomp. & C. 696. In the last case cited the defendant was charged with grand larceny. He ordered certain jewelry of another jeweler on the statement that it was for the purpose of enabling one of his customers to inspect it. For the purpose of showing defendant's intent, the prosecutor was permitted to show that defendant had similar transactions with two other firms and appropriated the goods to his own use. Complaint was made of the admission of this testimony, but the appellate court held the testimony admissible.

2. The point is made that no offense known to the law is charged in the information. The information appears to be based on the following statute:

‘Every person who shall break and enter with intent to commit any felony or larceny therein, any dwelling house, office, store, shop, warehouse, mill, factory, boat, vessel, depot, freight-house, meeting-house, church, court house, college, academy, or other building or structure, used or kept for private or public use, or any person who shall, without breaking, steal in any dwelling-house, office, store, shop, warehouse, mill, factory, boat, vessel, depot, freight house, meeting-house, church, court house, college, academy, or other building or structure used or kept for private or public use, shall be punished by imprisonment in the State Prison not more than five years, or by a fine not exceeding five hundred dollars.’ Act 323, Laws of 1919.

We are no impressed that there is any ambiguity in the statute. It covers instances of breaking and entering the places mentioned in the act, whether in the nighttime or in the daytime. It also covers stealing (without breaking) from the enumerated places, whether in the nighttime or in the daytime. It differs from the section which it superseded (C. L. 1915, § 15295) by making the act of breaking and entering apply to the entire 24 hours, and by making larceny an offense whether done in the daytime or in the nighttime. The old statute did not cover a case of breaking and entering in the daytime, nor did it cover cases of larceny without breaking in the nighttime. The fact that the information alleged the act took place in the daytime is of no importance, since the statute makes the act larceny whether committed in the day or night. The information was more specific than it need to have been. We think the offense was sufficiently charged in the information. It will be unnecessary to consider the other questions raised, as we think they are without merit.

The judgment of conviction is affirmed.

WIEST, C. J., and McDONALD and STEERE, JJ., concurred with BIRD, J.

FELLOWS, J. (dissenting).

I do not agree with my brother BIRD that it was competent for the people to prove that defendant had on other occasions committed the crime of larceny from other stores in the daytime, or that this case falls within the exception to the general rule that a defendant in a criminal case may only be called upon to meet the crime charged in the information. I think the question has been settled in this state for over half a century that a charge of larceny is within the rule, and not within the exception. While there are exceptions to the rule which will be presently noted, larceny is not one of them. In the early case of People v. Schweitzer, 23 Mich. 301, it was said by Justice Christiancy, speaking for the court:

‘We see no legal ground upon which the witness, Dumphy, could have been allowed to testify to the commission by the defendant of another and distinct larceny from that for which he was on trial. The general rule is well settled that the prosecution are not allowed to prove the commission of another and distinct offense, though of the same kind with that charged, for the purpose of rendering it more probable in the minds of the jury that he committed the offense for which he is on trial; and this would be the natural and inevitable effect upon the minds of the jury of the admission of such evidence, on whatever ground or pretense it might be admitted; and the defendant would thus be prejudiced on the trial of the offense charged by proof which he has no reason to anticipate of an offense for which he is not on trial, and to which, when properly called upon to defend, he may have a perfect defense. There is nothing to take this case out of this general rule, and to admit such evidence in this case would be to admit it in all.’

Nor is the case of People v. Lapidus, 167 Mich. 53, 132 N. W. 470, distinguishable from the one now before us. There the defendant, as here, was charged with ‘shoplifting.’ A witness testified that defendant had confessed to him that he made a business of it. In holding that such testimony was inadmissible, it was said by Justice Brooke, speaking for the court:

‘We think that the testimony of this witness, as it appears in the record, is highly incredible. Aside from that, the portion of it relating to the commission of similar offenses at other times was clearly incompetent. Proof of another offense or of prior arrests is not admissible to convince a jury that it is probable that the offense charged has been...