People v. Flynn, 81

• Decision Date: 03 April 1951
• Docket Number: No. 81,81
• Citation: 330 Mich. 130,47 N.W.2d 47
• Parties: PEOPLE v. FLYNN.
• Court: Michigan Supreme Court

Page 47

47 N.W.2d 47

330 Mich. 130

PEOPLE v. FLYNN.

No. 81.

Supreme Court of Michigan.

April 3, 1951.

Nicholas J. Rothe, Detroit, for appellant.

Stephen J. Roth, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Lansing, Joseph E. Killian, Pros, Atty. for the County of Berrien, St. Joseph, for the People.

Before the Entire Bench.

DETHMERS, Justice.

I do not concur in reversal. I agree with Mr. Justice BUSHNELL that the non-endorsement upon the information of the names of certain persons, referred to by defendant on appeal as res gastae witnesses, did not, under the circumstances of this case, amount to reversible error, particularly because such endorsement was at no time before verdict requested by the defense and there is no showing that the defense was less aware at time of trial than now of the existence and identity of those persons, they having assisted defendant in tipping over the automobile. See People v. Fleish, 321 Mich. 443, 32 N.W.2d 700, and People v. Prescott, 268 Mich. 606, 256 N.W. 564.

In am not in accord with the conclusion that the information should have been laid under C.L.1948, § 750.416, Stat.Ann. § 28.648, which is a part of the penal code enacted in 1931, No. 328. Where the damage exceeded $50, defendant was properly charged with a felony in violation of C.L.1948, § 750.377a, Stat.Ann.1949 Cum.Supp. § 28.609(1), added to the penal code in 1941 by Act No. 51. This later amendment declares it to be a felony for a person to wilfully and maliciously destroy or injure any personal property of another where the damage exceeds $50. The legislative intent is plain. If we were to agree that the two acts are in irreconcilable conflict, the later act would control. Metropolitan Life Ins. Co. v. Stoll, 276 Mich. 637, 268 N.W. 763. In this connection of interest is the following from People v. McHugh, 286 Mich. 336, 282 N.W. 168, 170: 'That defendant might have been charged and convicted under Act No. 328, § 174, Pub.Acts 1931 (Comp.Laws Supp. 1935, § 17115-174, Stat.Ann. § 28.371), as well as section 362 of that act, does not vitiate the information or render the conviction erroneous. Williams v. United States, 168 U.S. 382, 18 S.Ct. 92, 42 L.Ed. 509. There was testimony tending to show the statute was directly applicable to the offense with which defendant was charged.'

I do not agree that reference by the prosecuting attorney, in his opening statement and in his cross examination of defense witnesses, to the tipping over of another automobile at the place of and a few moments before the occurrence of the offense here involved constituted reversible error. The prosecuting attorney not only made the statement quoted in Justice BUSHNELL'S opinion, disavowing any claim of connection between defendant and the previously committed offense, but also stated definitely, before the jury, 'We don't claim any place this man (defendant) had anything to do with the first incident.' The case of People v. Thompson, 238 Mich. 171, 213 N.W. 159, quoted by Justice BUSHNELL, and other cases cited by defendant in this connection, viz., People v. Moyer, 77 Mich. 571, 43 N.W. 928, People v. Padgett, 306 Mich. 545, 11 N.W.2d 235, and People v. McHugh, supra, do not support defendant's claim of reversible error in this regard. In the Thompson case, in which defendant was charged with keeping a place where intoxicating liquors were illegally stored and possessed, the admission of testimony concerning his drunkenness during the previous year was held to be prejudicial. In the Moyer case defendant was charged with receiving stolen goods. The prosecuting attorney's statement to the jury that he was prejudiced against the defendant because he had committed perjury in another court, and the trial court's apparent endorsement of that statement, were held to be reversible error. In the Padgett case, we held reversible error the admission of testimony, in a murder case, that defendant had some 15 days before the murder committed an utterly unconnected robbery, the only issue of fact in the case having related to the identity of the killer. In the McHugh case, evidence of defendant's commission of previous offenses was held properly admitted under C.L.1948, § 768.27, Stat.Ann. § 28.1050. It will be noted that in each of these cases the question pertained to the admissibility of evidence concerning offenses previously committed by the defendant. They do not hold, and we are cited to no authorities holding that reference by the prosecuting attorney to previous offenses committed by persons other than the defendant is prejudicial to the rights of the defendant so as to amount to reversible error, although it might be so in some cases and under certain circumstances. Defendant was charged with overturning an automobile feloniously, wilfully and maliciously. As touching on the question of whether the tipping of the automobile by defendant was felonious, wilful and malicious, evidence tending to show the situation then and there existing was material and admissible. Even though it were to be held, however, that testimony concerning the previous tipping of another automobile by other persons, at the scene of and shortly before the occurrence of the offense in question, was incompetent and immaterial and for that reason objectionable, it in no wise appears that the jury was or could have been improperly influenced or defendant's rights prejudiced or impaired by the prosecuting attorney's reference to the offense previously committed by others coupled with his explanation that it was not claimed that defendant had any connection therewith. Prejudicial or reversible error did not occur in this connection.

The conviction should be affirmed.

REID, C. J., and BOYLES, NORTH, BUTZEL and CARR, JJ., concurred with DETHMERS, J.

BUSHNELL, Justice.

Respondent Thomas Flynn, a UAW-CIO field representative, was among the pickets who participated in a strike which had been in progress for about three weeks at the Nylen Products Company, about four miles south of the city of St. Joseph. About 7:40 a. m., on August 18, 1948, Albert Howard, an employee, arrived at the plant in his automobile and attempted to drive through the main gate to go to work. Flynn, accompanied by other men, told Howard and Thomas Basey, who was riding with him: 'I will give you _____ -- _____ ten seconds to get out of here.' Howard drove a little farther east on the road, and stopped. When he saw a sheriff's car he then turned around and drove west near the main gate. Some 20 or 30 men were ahead of him. Flynn, who was in the group, walked over and said:

'You want in eh?' Howard replied, 'Yes'. Flynn turned to the others and said: 'Come on boys, let's tip the _____ -- _____ over.' Howard's car was tipped over and damaged.

The sheriff of Berrien county, Erwin H. Kubath, testified that he went to the Nylen plant after receiving a telephone call. He found cars parked on both sides of the narrow graveled road, and a number of pickets. He asked Flynn what was going on. His subsequent testimony is summarized in the record as follows:

'Flynn said 'nothing.' He had a cigar in his mouth and he took it out of his mouth and pointed to the sky and said, 'It is a nice day, nice blue sky and the boys are having a picnic. Just having a little fun.' I said, 'Tom, it is a little rough for fun.' He said, 'Stick around and see.' I said, 'All right, I will.' About that time a car drove up from the east and Flynn left me and walked over to the car. Quite a large number of pickets had followed the squad car down to where I had walked and some of these pickets were in the way of the car and the driver couldn't proceed.

* * *

* * *

'When this car drove in Flynn left me and walked over to the driver of the car and said something I couldn't hear. Just a short time later he walked up and called to the group of pickets, said, 'Come on boys, let's tip this _____ -- _____ over.' I shouted to Tom and said, 'If you tip that car over I will arrest you,' and he again shouted to the boys and I told the boys not to touch the car. Some of them hesitated and when he called the second time 12 or 15 of them left the main group and assisted Tom in tipping the car over.

'Q. Did you see Tom Flynn tip the car over? A. Yes, my eye was on him.

'Q. Did he put his hands on the car? A. Tried to tip it first himself and then shouted to the boys to come and help them tip it over.'

Flynn was tried on an information in which he was charged with feloniously, wilfully and maliciously injuring by overturning and assisting in overturning an automobile causing damage in excess of $50, contrary to P.A.1941, No. 51, Stat.Ann. § 28.609(1).

This statute is § 377a, chap. LVI of the penal code, P.A.1931, No. 328, as amended, C.L.1948, § 750.377a.

Prior to 1941, § 377 consisted of one paragraph only, and read: 'Any person who shall wilfully and maliciously kill, maim, or disfigure any horses, cattle, or other beasts of another, or shall wilfully and maliciously administer poison to any such horses, cattle or other beasts, or expose any poisonous substance with intent that the same should be taken or swallowed by them, or who shall wilfully and maliciously destroy or injure the personal property of another, by any means not particularly mentioned or described in this section, shall be guilty of a felony.'

In 1941 the legislature deleted certain language from this section and re-enacted the section by placing part of the deleted language in section 377a, so that sections 377 and 377a, on the day that Flynn is said to have committed the offense with which he was charged, read as follows:

'Any person who shall wilfully and maliciously kill, maim, or disfigure any horses, cattle, or other beasts of another, or shall wilfully and maliciously administer poison to any such horses, cattle or other beasts, or expose any poisonous substance with intent that the same should be taken or swallowed by them, shall be...