People v. Huffman

• Decision Date: 03 June 1946
• Docket Number: No. 87.,87.
• Citation: 23 N.W.2d 236,315 Mich. 134
• Parties: PEOPLE v. HUFFMAN.
• Court: Michigan Supreme Court

315 Mich. 134

23 N.W.2d 236

PEOPLE

v.HUFFMAN.

No. 87.

Supreme Court of Michigan.

June 3, 1946.

OPINION TEXT STARTS HERE Appeal from Recorder's Court for City of Detroit; Gerald W. Groat, judge.

Arthur Julius Huffman was convicted under an information containing two counts, the first of which charged him with feloniously breaking and entering a store building in the nighttime with intent to commit larceny, and the second of which charged him with larceny from the store building, and he appeals.

Reversed, sentence vacated and new trial granted.

Before the entire bench.

Richard Nahabedian and Harold Helper, both of Detroit, for appellant.

John R. Dethmers, Atty. Gen., of Michigan, Edmund E. Shepherd, Sol. Gen., of Lansing, Gerald K. O'Brien, Pros. Atty., for Wayne County, and Andrew DeMaggio, Asst. Pros. Atty., both of Detroit, for the People.

STARR, Justice.

On jury trial defendant was convicted under an information containing two counts, the first of which charged him with feloniously breaking and entering a store building in the nighttime with intent to commit larceny in violation of § 110 of the penal code,¹ and the second count of which charged him with larceny from the store building in violation of § 360 of the penal code.² The jury returned a general verdict of ‘guilty as charged’ but did not specify under which count or of which offense he was convicted. The trial judge sentenced him to prison for a minimum of 5 and a maximum of 15 years but did not specify on which count or for which offense the sentence was imposed. Having obtained leave, he appealed. Subsequent to filing his claim of appeal, defendant moved for leave to file a delayed motion for a new trial on the ground that the general verdict of ‘guilty as charged’ was invalid and that his sentence under this verdict was void. This motion was denied by the trial court.

No question is raised as to the weight of the evidence, and it was stipulated that the testimony be omitted from the record. It was also stipulated that the evidence submitted to the jury was sufficient to justify defendant's conviction under either or both of the counts; that the two offenses charged related to, and arose out of, the same transaction; and that no motion was made to compel the prosecution to elect between counts. No question is raised regarding misjoinder or duplicity of counts.

The principal question presented is whether or not the trial judge erred in receiving a general verdict of ‘guilty as charged.’ The statutory penalty for the offense charged in the first count is imprisonment for not more than 15 years (penal code, § 110), and the penalty for the offense charged in the second count is imprisonment for not more than four years or a fine of not more than $2,000 or both (penal code, § 503).³ It should be noted that the minimum sentence of five years imposed by the trial court exceeded the maximum sentence of four years provided by statute for the offense charged in the second count.

Defendant contends that each count of the information charged a separate and distinct felony; that the penalty for each offense was different; and that the trial court erred in accepting a general verdict of ‘guilty as charged.’ In 1 Gillespie's Michigan Criminal Law & Procedure, p. 676, § 568, it is stated: ‘Where an information contains more than one count charging different offenses, the verdict must point out the offense of which the defendant is found guilty, and a general verdict of guilty is void and requires a new trial.’

In the case of People v. Stuart, 274 Mich. 246, 264 N.W. 359, the information charged defendant in separate counts with having committed the statutory offenses of embezzlement and larceny. Upon trial without a jury the circuit judge entered a verdict of ‘guilty as charged.’ On appeal defendant contended that he was charged with two separate and distinct offenses and that the record did not disclose of which offense he was convicted. The offense of embezzlement was punishable by a maximum sentence of 10 years, while the offense of larceny was punishable by a maximum of five years. In vacating the judgment and sentence and granting a new trial, we said (274 Mich., page 248, 264 N.W. 359):

‘The essential elements of these two statutory offenses are different. It is a matter of right that defendant should have knowledge and have a proper record made of the exact offense of which he was convicted. * * * The general determination of the trial court that defendant was ‘guilty as charged’ was no more than a general verdict.

“A general verdict of guilty, without specifying the count or offense on which it is founded, is invalid where there are several counts, each of which charges a separate and distinct offense, of a nature and character radically different from that in the other counts, and having no necessary connections * * *.' 16 C.J. 1105. See, also, numerous cases cited in notes.'

In People v. Allen, 252 Mich. 553, 233 N.W. 412, 413, we quoted with approval from In re Henry Franklin, 77 Mich. 615, 43 N.W. 997, as follows: ‘Our practice has allowed indictments to contain various counts, charging the same transaction in different ways, so as to meet the testimony as it is given on the trial. And some liberality has been shown in applying a general verdict when all of the counts can be harmonized. But we find no authority for sustaining a sentence under a general verdict upon inconsistent charges, and covering them all.’

In People v. Ormsby, 310 Mich. 291, 17 N.W.2d 187, the first 15 counts of the information charged defendants with conspiracies to violate the gambling laws of the State, and the sixteenth count charged them with a conspiracy to obstruct justice. The jury returned a verdict of ‘guilty as charged.’ In reversing the judgment of conviction and granting a new trial, we said (310 Mich. 299-304, 17 N.W.2d 190):

‘It is, therefore, necessary to determine whether or not the conspiracy to obstruct justice, as charged in the 16th count, was a separate and distinct offense from the conspiraciesto violate the gambling laws, charged in the first 15 counts. Such question is answered by determining whether...