People v. Gill

• Decision Date: 08 November 1967
• Docket Number: Docket No. 2502,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert GILL, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 678

153 N.W.2d 678

8 Mich.App. 89

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert GILL, Defendant-Appellant.

Docket No. 2502.

Court of Appeals of Michigan, Division No. 3.

Nov. 8, 1967.

Charles T. Zimmerman, White, Smitter & Zimmerman, Grand Rapids, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, James K. Miller, Pros. Atty., Kent County, Grand Rapids, for appellee.

Before HOLBROOK, P.J., and BURNS and WISE, ^* JJ.

WISE, Judge.

The defendant, Albert Gill, was charged with altering a bill of exchange ¹ and uttering and publishing. ²

At the arraignment on the information, while represented by counsel, the defendant waived the reading of the information and elected to enter a plea of guilty to the first count.

The court thereupon questioned the defendant relative to the offense and was satisfied that according to the defendant's own words and statements, all the elements of the crime charged were present. The defendant's statements to the court indicated that he understood the charge lodged against him. The court further questioned the defendant as to the freedom and volition of his plea. The plea was accepted and the defendant was sentenced to prison.

Subsequently, counsel was appointed by the court to represent the defendant in his post conviction review. The defendant moved to withdraw his previous plea of guilty, which was denied and the present appeal followed.

The defendant contends that the trial court erred in not informing him of the elements of the crime with which he was charged. Further, the defendant contends that the record fails to demonstrate that his plea of guilty was advisedly and understandingly proffered in conformity with GCR 1963, 785.3(2). Lastly, the defendant contends that because he had the intention of paying back the amount involved, the necessary element of intent to injure or defraud was not present.

From a reading of the transcript of the arraignment and the plea in this cause, there appears no merit to the defendant's contention that he did not understand the criminal charge lodged against him. In his own words he indicated he was aware of the crime and its attending elements.

The following colloquy reveals none of the abuses the defendant herein alleges:

'The court. Do you desire * * * to have the information read at this time?

'Mr. Tubbs (counsel for defendant). I think my client will waive the reading of the information, if the court please. He is familiar with the charges, are you not, Mr. Gill?

'Defendant. Yes, I am.'

The presence of counsel does not in all cases warrant the inference that a defendant is apprised of the charge lodged against him. In the instant case however, the above colloquy and the defendant's affirmation of his counsel's statements, that he was familiar with the charges, certainly leads this Court to conclude that the defendant had been fully informed as to what was charged.

The defendant in a further assignment of error contends that because he had the intention of paying back the money involved, the necessary element of intent to injure or defraud was somehow negated. The transcript of the defendant's testimony at the arraignment reveals the following:

'Defendant: I purchased a money order that said $4 in my name and I just raised the amount that said 4, and made it 40, put a 0 at the end of the 4.

'The Court: You then cashed it for that amount:

'Defendant: Yes.'

Having understandingly elected to plead guilty, the defendant cannot excuse himself of the intent to defraud shown by his act of defrauding the person who cashed the forged instrument by saying that at some later time he intended to repay the amount he got for the instrument beyond its actual value. The fraud committed in getting $40 for a $4 money order clearly shows the fraudulent intent of the defendant in raising the amount shown on the order from $4 to $40. We find the language in People v. Clark (1967), 6 Mich.App. 526, 530, 149 N.W.2d 919, 921, quoting from People v. Quigley (1921), 217 Mich. 213, 217, 218, 185 N.W. 787, particularly applicable. The court states:

"There is no presumption or permissible inference that what they did do they did not intend to do; the presumption is the other way, and, upon the trial, from what they did do the jury could find the intent.

"An intent, of course, is a secret of a man's mind, and he can disclose it by declaration or by his actions. And actions sometimes speak louder than words."

The trial court in its attempt to fulfill the requirements of the court rule and statute interrogated the defendant in the following manner:

'The court: And I advise you, Mr. Gill, that the maximum penalty that can be imposed is up to fourteen years in prison. Do you understand that?

'Defendant: Yes, I do. * * *

'The court: The first count in the information is the charge of forgery, and, as your attorney just went over this matter with you, it concerned an American Express money order and that you did forge a portion of this money order. Do you understand that?

'Defendant: Yes, sir, I do.

'The court: All right, then, knowing what the charge is, knowing your rights, knowing the maximum penalty that can be imposed as to that count how do you plead?

'Defendant: Guilty, your honor.

'The court: Has anyone made you any promises, threats, abused you in any way to get you to plead guilty?

'Defendant: No, they haven't.'

It is settled law that before a judge accepts a plea of guilty, he must satisfy himself that the plea was...