People v. Johns

• Decision Date: 08 June 1953
• Docket Number: No. 88,88
• Citation: 336 Mich. 617,59 N.W.2d 20
• Parties: PEOPLE v. JOHNS.
• Court: Michigan Supreme Court

Page 20

59 N.W.2d 20

336 Mich. 617

PEOPLE v. JOHNS.

No. 88.

Supreme Court of Michigan.

June 8, 1953.

Paul C. Younger, Pros. Atty., Frederick C. Newman, Jr., Asst. Pros. Atty., Lansing, for plaintiff and appellee.

John Wendell Bird, Lansing, for defendant and appellant.

Before the Entire Bench.

ADAMS, Justice.

Defendant and appellant, Ike Johns, together with two other defendants, was charged with violating the provisions of C.L.1948, §§ 750.302 and 750.303, Stat.Ann. §§ 28.534 and 28.535. The information in the case contains 6 counts, 3 alleging violations of the provisions of § 750.303 and the remaining 3 alleging violations under the provisions of § 750.302.

The first 3 counts allege that the defendant kept and maintained a gaming room, gaming table and game of chance used for gambling on certain premises; that he suffered a gaming room, gaming table and game of chance to be kept and maintained on premises occupied and controlled by him; and that he aided, assisted and abetted in the keeping and maintaining of a gaming room, gaming table and a game of chance on certain premises, all for hire, gain and reward. The remaining 3 counts allege that the defendant kept, occupied and assisted in keeping and occupying a place where gambling was permitted; that he suffered and permitted certain apparatus used for gaming and gambling on premises occupied and controlled by him; and that he used certain apparatus for gambling and gaming on certain premises.

Upon arraignment in the circuit court, defendant moved to dismiss the information on the ground that there was a misjoinder of the offenses set forth therein. The motion was denied and the 3 defendants were tried jointly by a jury. Defendant Ike Johns was found guilty on all 6 counts and sentenced to a term of 18 months to 2 years in the state prison on each of the first 3 counts, and from 9 months to 1 year on each of the last 3 counts, the 6 sentences to run concurrently. Defendant then moved for a new trial which was denied, and from the denial of that motion and the conviction and sentence, he takes this appeal.

Defendant's principal assignment of error has to do with the joinder of counts in the information. It is his contention that the trial court was in error in refusing to dismiss the information or, in the alternative, to compel the prosecutor to elect between the various counts on the ground that there was a misjoinder. He argues that the first 3 counts of the information charge substantially different crimes from those charged in the last 3 counts, that different proofs are required, and that the punishment provided is materially different.

It is an accepted rule in this state that separate and distinct offenses may be charged as separate counts in an information in order that one or more of the counts may be found upon trial to meet the evidence.

"The true and only just rule as regards the joinder of counts in an information or indictment seems to be, if the different counts are drawn and used with a view to one and the same transaction, so that one of them, upon the trial, may be found to meet the evidence, the court will not interfere with the proceeding, as such an object is a legitimate one. It is proceeding calculated to promote justice, and cannot confuse or prejudice the defense of the accused." People v. Aikin, 66 Mich. 460, 33 N.W. 821, as quoted with approval in People v. Larco, 331 Mich. 420, 428, 49 N.W.2d 358, 362.

But in so joining counts, the defendant must not be denied any substantial rights nor prejudiced in his defense.

"As a general rule, in cases of felony, when it clearly appears, from the indictment or otherwise, that several entirely distinct felonies are intended to be charged and proved, the court will, in its discretion, either quash or compel the prosecutor to elect: and the same course is sometimes taken in misdemeanors where several offenses in no way connected are charged. But there is nothing technical in the rule; and in the exercise of this discretion the court will not be governed simply by the question whether several different offenses in point of law are charged and intended to be proved; but mainly, as a general rule, by the consideration whether the trial of these several offenses would involve the proof of substantially different transactions, and thereby tend to confuse the defendant in his defense, or deprive him of any substantial right. And therefore where the several offenses charged, though distinct in point of law, yet spring out of substantially the same transaction, or are so connected in their facts as to make substantially parts of the same transaction, or connected series of facts, the defendant can not be prejudiced in his defense by the joinder, and the court will neither quash nor compel an election. Such would seem to be the principle of the general rule to be deduced from the cases." People v. McKinney, 10 Mich. 54, as quoted with approval in People v. Larco, supra.

It is to be noted that this Court has emphasized that the offenses charged in the several counts must arise our of substantially the same acts committed at the same time.

"Election between counts cannot be required on the ground that distinct offenses are charged where they are committed by the same acts, at the same time, and the same testimony must be relied on for conviction." Syllabus in People v. Sweeney, 55 Mich. 586, 22 N.W. 50, as quoted with approval in People v. Larco, supra.

In this case, a witness for the people testified that the defendant, Ike Johns, met him at the entrance to a building in the city of Lansing on the evening of February 24, 1950; that Johns personally admitted the witness into a room where gambling was taking place and where gambling equipment was in use; that during the hour and a half while the complaining witness remained in the building, no persons were admitted except by the defendant, Ike Johns; that several incidents occurred from which a reasonable inference could be drawn that Johns was in charge of the gambling activities; that at least one other person was occupied in operating gambling devices; that a substantial number of persons were present and engaged in gambling; and that a portion of the money being gambled was taken by those in charge of the operations in payment for the use of the premises and equipment.

It is apparent that sufficient evidence was produced to satisfy all the essential elements of each of the offenses charged in the several counts of the information which, if believed by the jury, justified a verdict of guilty on each count. All the testimony in reference to the happenings on February 24 covered a period of an hour and a half. Defendant, however, argues that keeping and occupying a place where gaming is permitted and suffered must be proven by a series of acts extending over a considerable period of time, and therefore requires different proofs than the other crimes charged. We do not believe that any specific time limit is contemplated by the statute. Testimony that gambling was permitted and suffered on the premises for an hour and a half fulfills the requirement of the statute.

While it is entirely possible that different proofs could be offered under each of the several counts, the fact remains that in the present instance substantially the same proofs were offered in reference to each count. The acts committed, proof of which was essential to a conviction on each of the counts, occurred within a period of an hour and a half and out of substantially the same transaction.

Defendant further contends that the joining of the 6 counts was improper because punishment for those acts charged in the first 3 counts differed from those in the last 3. Conceding that the punishment provided by ...