People v. Gould

• Decision Date: 08 December 1926
• Docket Number: No. 120.,120.
• Citation: 237 Mich. 156,211 N.W. 346
• Parties: PEOPLE v. GOULD.
• Court: Michigan Supreme Court

237 Mich. 156

211 N.W. 346

PEOPLE

v.GOULD.

No. 120.

Supreme Court of Michigan.

Dec. 8, 1926.

Exceptions from Circuit Court, Lapeer County; George W. Sample, Judge.

Edgar H. Gould was convicted of defrauding the County of Lapeer and its taxpayers, while acting as county engineer for the road commission, and he excepts after sentence. Affirmed.

Argued before the Entire Bench.Roy E. Brownell, of Flint, and George W. Desjardins, of Lapeer, for appellant.

Glenn L. Hollenbeck, Pros. Atty., of Lapeer, and Elmer Shumar, Sp. Asst. Pros. Atty., of Imlay City, for the People.

STEERE, J.

On September 26, 1925, and for a considerable period prior thereto, defendant, Edgar H. Gould, was county engineer for the road commission of Lapeer county. Among his official duties he was required as such engineer to make and file with the road commission certified written estimates, showing the amount and value of work and material performed and furnished by contractors working upon roads in said county, as a basis for orders on the road funds of the county which it was the duty of the commission to issue.

On September 26, 1925, complaint was made before a magistrate charging defendant with fraudulently making and filing with the commission false estimates of work done and material furnished, and value of the same, in various specified instances, amounting to many thousands of dollars, relying upon which, as reported to the commission, excessive payments were made to contractors, resulting in cheating and defrauding the county of Lapeer and its taxpayers out of large sums of money. Warrant was issued upon said complaint and defendant arrested. Examination was had before the magistrate, who found probable cause to believe defendant guilty as charged, and bound him over for trial in the circuit court. Information was then filed against him, and on arraignment he stood mute. A plea of not guilty was entered in his behalf by order of the court. His trial by jury resulted in a verdict of guilty. H was sentenced to the state prison at Jackson for a term of years, but subsequently admitted to bail pending this appeal.

From inception of the case all questions sought to be reviewed were timely raised and saved by proper motions, objections, and exceptions. The charge as laid in the information is based upon section 15308, Compiled Laws of 1915, which provides as follows:

‘Sec. 27. If any officer, clerk or other person, employed in the treasury of this state, or in the treasury of any county, or in any other public office within this state, shall commit any fraud or embezzlement therein, he shall be punished by imprisonment in the state prison, not more than fourteen years, or by fine not exceeding two thousand dollars, or imprisonment in the county jail not more than two years, or both, at the discretion of the court.’

As presented here for review, but two assignments of error are urged and argued by counsel for defendant. They are as follows:

‘(a) That, applying the doctrine of ejusdem generis to section 15308, Compiled Laws of 1915, a county engineer is not included within the meaning of the statute.

‘(b) The failure of the information to include the word ‘knowingly’ and to allege a scienter renders the information fatally defective.'

In support of the contention that a county engineer is not included within the meaning of the statute, defendant's counsel rely upon the familiar rule of construction (called ejusdem generis) that, when general words follow the enumeration of particular persons or things, those general words are to be construed as applicable only to the same kind as those specifically enumerated, citing 2 Lewis' Sutherland, Statutory Construction (2d Ed.) p. 814 et seq. Following a discussion of that rule it is said on page 832, under the subtitle ‘Qualifications and Exceptions to the Rule of Ejusdem Generis,’ in part as follows:

‘This rule can be used only as an aid in ascertaining the legislative intent, and not for the purpose of controlling the intention or of confining the operation of a statute within narrower limits than was intended by the lawmaker. It affords a mere suggestion to the judicial mind that where it clearly appears that the lawmaker was thinking of a particular class of persons or objects, his words of more general description may not have been intended to embrace any other than those within the class. The suggestion is one of common sense. Other rules of construction are equally potent, especially the primary rule which suggests that the intent of the Legislature is to be found in the ordinary meaning of the words of the statute. The sense in which general words, or any words, are intended to be used furnishes the rule of interpretation, and this is to be collected from the context; and a narrower or more extended meaning will be given, according as the intention is thus indicated. * * * These principles of construction and apparent exception to the maxim of ejusdem generis apply as well to criminal statutes as to others.’

The statutory provision under consideration in the instant case (section 15308) has remained in its present from on our statute books for more than three-quarters of a century. We are cited to and find but three cases brought directly under this statute which have been before this court.

In People v. McKinney, 10 Mich. 54, Justice Christiancy gave it careful consideration, and pointed out that it was copied in substance from the Massachusetts statute, and its origin in this state is found in our Revised Statutes of 1838 (page 630). As then enacted it reads:

‘Sec. 26. If any clerk or other person, employed in the treasury of this state, shall commit any fraud or embezzlement therein, he shall be punished by fine not exceeding two thousand dollars, or by imprisonment in the state prison for life, or for such term of years as the court shall order.’

It is further noted that amendments and changes were made in the laws bearing upon this section in 1839 (Laws 1839, P. 233) and 1840 (Laws 1840 p. 232), somewhat enlarging its scope, apparently because the Legislature was not satisfied with its limitations, of which the court said:

‘Thus stood the law until the revision of 1846. [Rev. St. 1846, c. 154, § 27.] This revision consisted mainly of a revision and consolidation of then existing laws. We have seen that the section now in question, in its original form in the revision of 1838, was, ‘If any clerk or other person employed in the treasury of this state.’ The law of 1839 applied to ‘every public officer of this state who shall receive or be entrusted with...