People v. Hammond, Docket No. 94251

• Decision Date: 18 September 1987
• Docket Number: Docket No. 94251
• Citation: 411 N.W.2d 837,161 Mich.App. 719
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert L. HAMMOND, Defendant-Appellee. 161 Mich.App. 719, 411 N.W.2d 837
• Court: Court of Appeal of Michigan — District of US

Page 837

411 N.W.2d 837

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert L. HAMMOND, Defendant-Appellee.

Docket No. 94251.

161 Mich.App. 719, 411 N.W.2d 837

Court of Appeals of Michigan.

Submitted June 16, 1987.

Decided July 21, 1987.

Released for Publication Sept. 18, 1987.

[161 MICHAPP 720] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and John D. Walter, Asst. Atty. Gen., for the People.

Cummins & Woods by Thomas E. Woods and Jeffrey J. Short, Lansing, for defendant-appellee.

Before DANHOF, C.J., and DOCTOROFF and GREEN, ^* JJ.

PER CURIAM.

The prosecutor appeals by leave granted after the circuit court granted defendant's motion to quash the information, ¹ following which it denied the prosecutor's motion for reconsideration. We affirm the decision of the circuit court.

The information that the circuit court quashed had charged defendant with five counts of uttering and publishing, M.C.L. Sec. 750.249; M.S.A. Sec. 28.446. ² The circuit judge determined that the magistrate had abused his discretion by binding the defendant over because all of the elements of the crime were not supported by the evidence.

The purpose of a preliminary examination is to determine if a crime has been committed and, if so, if there is probable cause to believe that the defendant committed it. M.C.L. Sec. 766.13; M.S.A. Sec. 28.931; People v. Duncan, 388 Mich. 489, 499, 201 N.W.2d 629 (1972). The magistrate is not required to find guilt beyond a reasonable doubt, but there must be evidence on each element of the crime charged or [161 MICHAPP 721] evidence from which those elements may be inferred. People v. Sesi, 101 Mich.App. 256, 262, 300 N.W.2d 535 (1980), lv. den. 411 Mich. 1077 (1981).

The trial court reviewing the magistrate's decision to bind over may not disturb the decision unless the defendant can demonstrate a clear abuse of discretion. People v. Shipp, 141 Mich.App. 610, 612, 367 N.W.2d 430 (1985), lv. den. 422 Mich. 934 (1985). This Court also reviews the decision of the examining magistrate to bind over for an abuse of discretion. People v. Dyer, 157 Mich.App. 606, 608, 403 N.W.2d 84 (1986). In determining whether the magistrate abused his discretion, the reviewing judge considers the entire record made at the preliminary examination by reviewing the evidence that was presented to the magistrate at the examination. People v. Taurianen, 102 Mich.App. 17, 26, 300 N.W.2d 720 (1980).

The prosecutor now argues that the circuit court erred by quashing the information and determining that the magistrate had abused his discretion. The basis for his argument is that the circuit court erroneously determined the elements of uttering and publishing.

M.C.L. Sec. 750.249; M.S.A. Sec. 28.446 provides:

"Any person who shall utter and publish as true, any false, forged, altered or counterfeit record, deed, instrument or other writing mentioned in the preceding section, [MCL 750.248; MSA 28.445] knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud as aforesaid, shall be guilty of a felony...."

M.C.L. Sec. 750.248; M.S.A. Sec. 28.445 provides in relevant part:

"Any person who shall falsely make, alter, forge or counterfeit any public record, or any certificate, [161 MICHAPP 722] return or attestation of any clerk of a court, public register, notary public, justice of the peace, township clerk, or any other public officer, in relation to any matter wherein such certificate, return or attestation may be received as legal proof, or any charter, deed, will, testament, bond or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange, promissory note, or any order, acquittance of discharge for money or other property, or any waiver, release, claim or demand, or any acceptance of a bill of exchange, or indorsement, or assignment of a bill of exchange or promissory note for the payment of money, or any accountable receipt for money, goods or other property, with intent to injure or defraud any person, shall be guilty of a felony...."

The law of this jurisdiction provides that the crime of uttering and publishing is established by proof that (1) the accused knew that the instrument was false, (2) the accused had an intent to defraud, and (3) the forged instrument was presented for payment. People v. Buchanan, 107 Mich.App. 648, 652, 309 N.W.2d 691 (1981).

Although defendant raises the question whether the writings--in this case, the subject invoices--are even included within M.C.L. Sec. 750.249; M.S.A. Sec. 28.446 and M.S.A. Sec. 750.248; M.S.A. Sec. 28.445, these statutes have been given a liberal construction. The question most often arising on the character of the instrument relates not so much to the matter of the generic classification as to the more specific inquiry whether the instrument imports or embodies some one or more of the other elements of the crime, especially falsity and, on the assumption of genuineness, efficacy to affect the rights of others. People v. Hester, 24 Mich.App. 475, 478-479, 180 N.W.2d 360 (1970), citing 36 Am.Jur.2d, Forgery, Sec. 27, pp. 696, 697.

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