People v. Franczyk, 62

• Decision Date: 11 September 1946
• Docket Number: June Term, 1946.,No. 62,62
• Citation: 24 N.W.2d 87,315 Mich. 384
• Parties: PEOPLE v. FRANCZYK.
• Court: Michigan Supreme Court

315 Mich. 384

24 N.W.2d 87

PEOPLE

v.FRANCZYK.

No. 62, June Term, 1946.

Supreme Court of Michigan.

Sept. 11, 1946.

OPINION TEXT STARTS HERE Appeal from Recorder's Court of Detroit; Christopher E. Stein, judge.

Joseph Franczyk was convicted of larceny from a store, and he appeals.

Affirmed and remanded for execution of sentence.

Before the Entire Bench, except BUSHNELL, J.

Roman V. Ceglowski, of Hamtramck, and Harold Helper, of Detroit, for defendant-appellant.

John R. Dethmers, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Gerald K. O'Brien, Pros. Atty., and Michael A. Guest, Asst. Pros. Atty., both of Detroit, for the People.

NORTH, Justice.

Joseph Franczyk, on trial in the Recorder's Court of Detroit without a jury, was charged and convicted of larceny from a store under sec. 360 of the Michigan Penal Code, Act No. 328, sec. 360, Pub.Acts 1931. Sentence was imposed and he has appealed. He presents the following questions: (1) Is there any evidence at all that defendant committed larceny? (2) Is the finding of guilt against the great weight of evidence? (3) Did the trial court erroneously restrict defendant's cross-examination of the complaining witness on the identification of the evidence?

During the night of September 28, 1944, the Detroit drugstore of the complaining witness, Henry Tyszka, was entered through a broken window and upwards of $600 was stolen. The money consisted of bills and silver dollars. Tyszka testified as follows:

‘I had some of the money stuck away in back of the merchandise drawers. I have one of the merchandise drawers that I use for American Express money, it has to be kept separate, and that was taken too. * * * There were 25 silver dollars in the American Express drawer. When the silver dollars come in I put them on the side; I do not spend them; I save them. Those silver dollars had been there quite a while and once in a while I looked at them. I remember some distinguishing marks on those silver dollars and since that time I have seen and recognized some of them; it was in the court room downstairs in the examination in this case. I was shown certain silver dollars and I picked them out.

‘I know Joseph Franczyk and see him in Court. He used to come in and I used to cash his check about a couple of years back, and he used to work in the packing house about a block away from the store. He has lived in the neighborhood and I have done business with him. He has been a customer of mine for some time. I knew him and he knew me.’

A week after Tyszka's store was broken into Franczyk was taken into custody. His arrest was incident to some trouble at the packing house where he had worked for nine years. Soon after his arrest and upon being questioned by police officers about his having silver money defendant told the officers he had been saving silver dollars and that he had some in his car and where the money was in the car. Thereupon the officers went to defendant's place of residence and searched his automobile. The officer testified:

‘My search revealed, on the right hand side of the car in the front seat up in the cowl between the body and the upholstering of the car it had been loosened and in looking in there we found that bag (which belonged to defendant) with 25 silver dollars in it. That was People's Exhibit No. 1. It was concealed in between the metal body and the upholstering. It was loose and you could just stick your hand in there.

‘I don't recollect whether he (defendant) told me about those silver dollars when I talked to him at first. When I talked to him after I got back to the station he stated that he had a hobby of saving silver dollars. We asked him why he hid them in the lining of his automobile and he stated he was having trouble with his wife and she wouldn't give him any money, so he snuck those silver dollars out of the house and kept them in the lining of his car. That is all he had to say about it.

‘He told us that the night of the breaking and entering that he and two other boys (neither of whom was a witness) had been out drinking and they had stopped in a bar known as Johnnie's Bar, and they met two girls there and they drove them out to Royal Oak. That is the way he accounted for his activities that night.’

On cross-examination defendant testified: ‘The morning that I pushed the car to Royal Oak (for a woman who had met with an automobile accident) I didn't get home until daylight. I don't know if that was the night of September 28th and I told the officers that I didn't know where I was that night.

As a witness for the prosecution Tyszka identified as part of his collection several of the silver dollars taken by the officer from defendant's automobile. In identifying certain of the coins Tyszka testified:

‘Q. * * * I ask you whether you recognize any of it (Exhibit 1, the 25 silver dollars)? A. This is one with that nick. (Indicating).

‘Q. You remember the nick on it? A. That is right.

‘Q. What sort of a nick was it? A. It was on the face and side to the right. * * * And this is one I remember; this was one of the older types, too, that came in, in brand new condition. (Indicating.) And I got this one here with the scratches around the eye. (Indicating.)

‘Q. Do you remember that one in particular as having been in your store when you locked up that night? A. That is right, and I had one here that was all 8's, 1888, I remember this one; and this one here I remember had a nick on the face side and there was a black spot underneath, and this one I don't remember; that is one of the others. (Indicating).

‘Q. And you don't remember in particular any of the rest of these particular silver dollars? A. No.’

The clerk in the Tyszka drugstore, Arthur Dombrowski, as a witness for the people, testified:

‘Mr. Tyszka closed the store. That night (September 28, 1944) I did not have keys to re-enter. Mr. Tyszka opened the store the following morning. I did not re-enter the store after it was closed that night; Mr. Tyszka was the only one that had the keys. * * * There were some silver dollars on the premises when I left the store and they were kept in the American Express drawer. It don't know how many were there. I looked at those silver dollars and I became familiar with one of them. I did not see those silver dollars or any of them after that day. * * *

‘Q. I will show you some silver dollars, part of People's Exhibit No. 1, and ask you whether you have ever seen any of them before? A. This is the only one I can identify because of the cut on the side. (Indicating.)

‘Q. Because of the cut on the side? A. Yes, sir.

‘Q. You are familiar with that dollar and that is one of the dollars that was in the place of business when you left, is that correct? A. Yes, sir.’

Defendant's testimony was corroborated in substance by that of his wife and brother. This testimony was to the effect that defendant was in the habit of collecting silver dollars, that he had received some from his brother, and that one time he had at his home 35 such coins, but that he had spent 10 of them, leaving 25. Defendant testified that he did not break into the drugstore and that he knew nothing about the theft of the money until he was told about it the day after his arrest; that the officers asked him if he had any silver coins and that he gave them the information hereinbefore set forth; that he had ‘started to pick up silver dollars when I first started to work at the packing company (9 years previously)’; that his wife ‘wanted to save the silver dollars'; that he turned all his money over to his wife and when he needed money he went to his wife for it. Defendant further testified: ‘I was out drinking pretty near every night but I did not take my wife with me. She didn't like the...