People v. O'Hara

• Decision Date: 09 December 1936
• Docket Number: No. 132.,132.
• Citation: 270 N.W. 298,278 Mich. 281
• Parties: PEOPLE v. O'HARA et al.
• Court: Michigan Supreme Court

278 Mich. 281

270 N.W. 298

PEOPLE

v.O'HARA et al.

No. 132.

Supreme Court of Michigan.

Dec. 9, 1936.

Elmer B. O'Hara, Lester Currier, John De Gutis, James Garrett, Charles Lark, T. Emmet McKenzie, Franklyn K. Morgan, Joseph W. Neil, Bruno Nowicki, Chester Pons, Alfred J. Skiffington, Herbert L. Sullivan, James Walker, Anthony J. Wilkowski, William Wilson, Anthony J. Gallagher, Joseph Greishaber, and Vincent Murphy were convicted of attempted election fraud, and they appeal.

Affirmed.Appeal from Recorder's Court of Detroit; W. McKay Skillman, judge.

Argued before the Entire Bench, except POTTER and TOY, JJ.

Robert E. Plunkett, of Detroit, for appellant, Elmer B. O'Hara.

Leo Gottfurcht, of Detroit, for appellant Franklyn K. Morgan.

Arnold F. Zeleznik, of Detroit, for appellants Herbert L. Sullivan, Chester Pons, and Lester Currier.

Echlin & Lendzion, of Detroit, for appellants Alfred J. Skiffington, Anthony J. Gallagher, James Garrett, Joseph W. Neil, James Walker, William Wilson, and Joseph Greishaber.

Thomas A. Kenney, of Detroit, for appellant Vincent Murphy.

Frank G. Schemanske, of Detroit, for other appellants.

Bruno Nowicki and T. Emmet McKenzie, in pro. per.

John Degutis and Charles Lark, both of Detroit, in pro. per.

David H. Crowley, Atty. Gen., and Chester P. O'Hara, Edmund E. Shepherd, and Leslie D. Harrop, Asst. Attys. Gen., for the People.

NORTH, Chief Justice.

This is an appeal in a criminal case wherein the appellants were charged, tried jointly, and convicted of what may be designated in general terms as an attempted election fraud. At the opening of the trial there were 32 defendants. As to some of them final disposition of the prosecution was made pending the trial. Of the remaining defendants 22 were tried by the jury and 4 by the court without a jury. The jury convicted 15 and acquitted 7; the court convicted 3 and acquitted 1.

It is the People's claim that in the election recount investigation certain of the defendants altered some of the ballots which they were investigating and that certain other defendants permitted others to alter such ballots, and that all of defendants conspired to do so and conspired to change the result of the election by so doing. Many of the details surrounding the alleged offense will be found in Behrendt v. Board of State Canvassers, 269 Mich. 247, 257 N.W. 631;Wilson v. Atwood, 270 Mich. 317, 258 N.W. 773;In re Petition for Investigation of Recount, 270 Mich. 328, 258 N.W. 776, 778;In re Wilkowski, 270 Mich. 687, 259 N.W. 658; and Behrendt v. Wilcox, 277 Mich. 232, 269 N.W. 155 (Oct. 5, 1936).

The following provision is a part of the General Election Law of this state: ‘Every inspector of election, clerk or other officer or person having the custody of any record, election list of voters, affidavit, return or statement of voters, certificates, poll book, or of any paper, document or vote of any description, in this act directed to be made, filed or preserved, who is guilty of stealing, wilfully destroying, mutilating, defacing, falsifying or fraudulently removing or secreting the whole or any part thereof, or who shall fraudulently make any entry, erasure, or alteration therein, or who permits any other person so to do, shall, on conviction, be deemed guilty of a felony.’ 1 Comp.Laws 1929, § 3299.

The information which charged the defendants with violating or conspiring to violate the provisions of the foregoing statute, as originally filed, contained five counts; but the fifth count by subsequent amendment, to avoid possible duplicity, was divided into counts 5 and 6. Briefly, defendants are charged in the respective counts as follows:

Count 1. That the defendants, having possession of election ballots, fraudulently made certain alterations in the ballots by making marks and crosses upon certain ballots in addition to the crosses placed thereon by the voters.

Count 2. That defendants, having possession of election ballots, did permit other persons to fraudulently make such alterations.

Count 3. That defendants, having such possession, conspired together to fraudulently make such alterations.

Const 4. That defendants, having such possession, conspired to permit other persons to fraudulently make such alterations.

Count 5. (as amended). That defendants conspired together to conduct an investigation and recount of ballots cast for the secretary of state in the county of Wayne on November 6, 1934, and thereby and therein to unlawfully change and alter the result of the election for said office, and that in so doing said defendants did illegally alter certain of the ballots substantially in the manner charged in count 1, and did place other marks upon ballots for the purpose of spoiling such ballots so that the same could not be counted.

Count 6. (as amended). That defendants did then and there conspire together to conduct an investigation and recount of the ballots and to unlawfully permit other persons to commit the illegal acts charged in count 5.

In the November, 1934, election Orville E. Atwood and Guy M. Wilson were rival candidates for the office of secretary of state; the former on the Republican ticket, the latter on the Democratic ticket. The election of Atwood was certified by the Board of State Canvassers. Certain of Wilson's supporters questioned the accuracy of the certified result. Because of the election controversy, the Legislature was specially convened for the purpose of holding a joint convention to determine who was elected to the office of secretary of state. For a time the issue as to who had been elected to the office of Attorney General was also involved, but this was abandoned and we will not refer further to that phase of the facts.

‘In case two or more persons have an equal and the highest number of votes for any office, as canvassed by the board of state canvassers, the legislature in joint convention shall choose one of said persons to fill such office. When the determination of the board of state canvassers is contested, the legislature in joint convention shall decide which person is elected.’ Constitution of Michigan, art. 16, § 4.

The attempt to convene a joint convention of the Legislature was abortive becauseof lack of a quorum. See Wilson v. Atwood, supra. None the less, this purported joint convention, acting through its chairman, appointed a committee of five members of the Legislature to conduct an investigation of the election and to report. Defendant Wilkowski, a member of the State, Senate, was selected chairman of this committee, which proceeded at once to arrange for an investigation in the nature of a recount of the ballots of certain election precincts in Wayne county. Arrangements were made to carry on the activities in the Barlum Tower building in Detroit, and numerous persons were appointed or employed to assist in the details of the investigation which was in progress continuously for four days and nights. The committee demanded and received possession of ballot boxes of certain voting precincts in Wayne county from the officials in whose custody they were. The committee appointed defendant Franklyn K. Morgan chief inspector of the investigation proceedings. As the result of the investigation which followed and in which defendants participated, defendant Wilkowski, as chairman of the committee of five, reported back to the Legislature that Candidate Wilson had gained 13,774 votes, which would be enought to justify declaring him elected to the office of secretary of state. A minority report was made in which the irregularities of the so-called recount investigation were set forth. Thereupon the members of the Legislature present voted to declare Guy M. Wilson elected secretary of state, and the Board of State Canvassers was directed to so certify. Decision in Wilson v. Atwood, supra, in effect nullified this action of the so-called joint convention.

Early in January of 1935 a committee of the State Senate made an investigation into the investigation of the committee of the so-called joint convention. Subsequently a petition was filed with the recorder's court of Detroit by the Attorney General for a one-man grand jury inquiry into the investigation of the legislative committee. Hon. Thomas M. Cotter, a judge of the recorder's court of Detroit, conducted such grand jury investigation, under and in accordance with statutory provisions. 3 Comp.Laws 1929, §§ 17217, 17218. The record shows that all of the appellants appeared and testified in the one-man grand jury proceeding. Warrants were issued against each of the defendants, examinations were conducted and defendants were held for trial. An information was filed by the Attorney General. Nearly all of defendants on arraignment stood mute and pleas of not guilty were entered by the court. Prior to trial, motions to quash were heard and denied. As noted above, appellants were convicted, the verdict of the jury designating under which count or counts those tried by the jury were found guilty. Sentences were imposed, and defendants have appealed.

It is claimed by appellants the warrant issued by the judge who conducted the one-man grand jury investigation was illegal because the warrant was issued without security for costs being filed and without a written order from the prosecuting attorney of Wayne county allowing the issuance of the warrant being filed, contrary to the requirements of 3 Comp.Laws 1929, § 17135, as amended by Pub.Acts 1931, No. 173. This section is not applicable to a one-man grand jury proceeding, authorized by 3 Comp.Laws 1929, §§ 17217, 17218, but instead it is plainly intended to apply to prosecutions arising in the ordinary course of complaints and warrants. Its inapplicability to the one-man grand jury proceeding is indicated by a recent decision of this court: ‘It [the one-man grand jury proceeding] is, in its nature, a proceeding for the discovery of crime and the apprehension of criminals under the control of the judge and not...