People v. Harris

• Decision Date: 23 September 1975
• Docket Number: Docket No. 20928
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sylvester HARRIS, Defendant-Appellant. 64 Mich.App. 503, 236 N.W.2d 118
• Court: Court of Appeal of Michigan — District of US

Page 118

236 N.W.2d 118

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sylvester HARRIS, Defendant-Appellant.

Docket No. 20928.

64 Mich.App. 503, 236 N.W.2d 118

Court of Appeals of Michigan.

Sept. 23, 1975.

Released for Publication Dec. 18, 1975.

[64 MICHAPP 506] Weisenthal, Mindell & Panzer by Bernard Mindell, Detroit, for defendant-appellant.

[64 MICHAPP 505] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Robert A. Reuther, Asst. Pros. Attys., for plaintiff-appellee.

Before BRONSON, P.J., and V. J. BRENNAN and D. E. HOLBROOK, Jr., JJ.

V. J. BRENNAN, Judge.

Defendant was convicted on July 2, 1974, in Detroit Recorder's Court of larceny by conversion under $100 in violation of M.C.L.A. § 750.362; M.S.A. § 28.594. He brings this appeal as a matter of right. We affirm.

Defendant was an employee of the Wayne County Road Commission. He was instructed by his supervisor on May 21, 1974, to deliver certain guardrails which had been removed from a section of I--94 to the Wyoming yard of the Wayne County Road Commission. An employee of a private junkyard in Detroit testified that on that day a Wayne County Road Commission truck with two occupants entered the junkyard and sold certain metal guardrails and were given a receipt therefor. When asked by the prosecuting attorney if he saw the person in court who had sold him the guardrails, the witness replied, 'I can't identify anybody.'

The testimony of an expert witness tended to show that the signature on the receipt was that of the defendant. A police officer testified that, after being advised of his rights, the defendant made an oral confession.

Defendant brings several allegations of error. Defendant contends that plaintiff failed to establish the corpus delicti Aliunde the confession, and that the admission of the confession was, therefore, error. Defendant next contends that the receipt from the junkyard was erroneously admitted into evidence because of the absence of proper authentication as a business record qualifying as an exception to the hearsay rule. Defendant further[64 MICHAPP 507] contends that documents which were admitted to serve as a standard of comparison for the handwriting expert to use in identifying the signature of defendant on the receipt were not authenticated by any foundation which would show that the specimen signatures were genuine.

The corpus delicti to a crime may be established by circumstantial evidence and reasonable inferences. People v. Allen, 390 Mich. 383, 212 N.W.2d 21 (1973), Peterson v. Oceana Circuit Judge, 243 Mich. 215, 219 N.W. 934 (1928). In the instant case, the defendant's supervisor ordered the defendant to load the guardrails onto a Wayne County Road Commission truck, and to deliver the guardrails to the 'Wyoming yard' of the Commission. The supervisor observed the defendant loading the guardrails as ordered. An employee at a private junkyard in Detroit testified that later the same day a Wayne County Road Commission truck entered the junkyard, loaded with guardrails and occupied by two men who sold the guardrails, and signed a receipt for the money received. A reasonable inference to be drawn at this point is that property of the Wayne County Road Commission had been unlawfully converted. The patent unwillingness of the witness to attempt to identify the occupants of the truck (duly noted by the trial judge) does not bear on the question of the corpus delicti, because it is elementary that the identity of the perpetrators of a crime is not an element of the corpus delicti. We find, therefore, that the evidence submitted and reasonable inferences therefrom were sufficient to establish the corpus delicti Aliunde the confession. Accordingly, it was not error to admit the confession of the defendant as evidence against him.

Defendant contends that the receipt was not [64 MICHAPP 508] properly authenticated as a business record. The record shows that the court suggested to the prosecutor that he ask the witness who kept and produced the receipt if it was the receipt he gave. The witness responded, 'That particular item, there, that's part two of a three-part copy. That's the third part, right. The original goes to the people that brought the stuff in.' We think that this statement by the witness was sufficient reasonably to convince the court that the document was entitled to be admitted as a business record exception to the hearsay rule. Whether or not a sufficient foundation has been laid for the admission of evidence is a matter addressed to the discretion of the trial court and its determination as to this matter should not be lightly set aside. People v. Krulikowski, 60 Mich.App. 28, 230 N.W.2d 290 (1975), Champion v. Champion, 368 Mich. 84, 97, 117 N.W.2d 107, 109 (1962).

Finally, defendant contends, in substance, that the use of timesheets purportedly signed by defendant as a standard of comparison by an expert witness to show that it was defendant who signed the receipt at the junkyard was error because a proper foundation had not been laid establishing that it was in fact the defendant whose signature appeared on the timesheets. Upon careful examination of the record we find that defendant did not preserve this error for appeal. While defendant did make a general objection to the admission of the documentary evidence when first offered, and later argued that the evidence did not 'tie up the defendant with any crime * * *', we find that the defendant did not object with enough specificity to give the court notice of his grounds, so as to afford the court opportunity to cure or obviate the error. People v. Kowalek, 296 Mich. 714, 296 N.W. [64 MICHAPP 509] 856 (1941), People v. Hallman, 299 Mich. 657, 1 N.W.2d 28 (1941). Brown v. Brown, 338 Mich. 492, 503, 61 N.W.2d 656, 661 (1953), Cert. den., 348 U.S. 816, 75 S.Ct. 26, 99 L.Ed. 644 (1954). The record gives no indication that the plaintiff was unable to produce a witness who could have testified to the genuineness of the defendant's signature on the timesheets if defendant had clearly objected on this ground. We will not consider on appeal error which, upon proper objection, might have been cured in the court below.

Having examined defendant's other allegations of error, we find them to be harmless. Defendant is not entitled to a perfect trial, only to a fair one. Michigan v. Tucker, 417 U.S. 433, 446, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182, 194 (1974).

M.C.L.A. § 769.26; M.S.A. § 28.1096 provides,

'No judgment or verdict shall be set aside or reversed or a new trial granted by any court of this state in any criminal case, on the ground of * * * improper admission or rejection of evidence * * * unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.'

The Michigan Supreme Court has consistently followed this policy. People v. Howard, 391 Mich. 597, 218 N.W.2d 20 (1974), People v. Kregger, 335 Mich. 457, 56 N.W.2d 349 (1953), People v. Cooper, 328 Mich. 159, 43 N.W.2d 310 (1950), People v. Hawks, 206 Mich. 233, 172 N.W. 405 (1919). We agree. People v. Keiswetter, 7 Mich.App. 334, 151 N.W.2d 829 (1967), People v. Carr, 2 Mich.App. 222, 139 N.W.2d 329 (1966).

Affirmed.

D. E. HOLBROOK, Jr., Judge (dissenting).

The testimony of the police handwriting expert was essential to the prosecution in convicting the defendant. Without it the prosecution could not prove that the...