People v. King

• Citation: 365 Mich. 543,114 N.W.2d 219
• Decision Date: 16 March 1962
• Docket Number: No. 96,96
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. LeRoy KING, Defendant and Appellant.
• Court: Supreme Court of Michigan

Page 219

114 N.W.2d 219

365 Mich. 543

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. LeRoy KING, Defendant and Appellant.

No. 96.

Supreme Court of Michigan.

March 16, 1962.

Stuart J. Dunnings, Jr., Lansing, for appellant.

Jack W. Warren, Pros. Atty. for Ingham County, Howard A. McCowan, Civil Asst. Pros. Atty. for Ingham County, Lansing, for appellee.

Before the Entire Bench, except ADAMS, J.

DETHMERS, Chief Justice.

Defendant and a woman companion were charged with the crime of having furnished alcoholic beverage theretofore, to wit, on or about the 10th day of September, A.D.1958, to a minor.

The case was tried in circuit court without a jury. Both defendants were found guilty. Defendant LeRoy King appeals.

Proofs were offered to show that on September 10, 1958, the minor was at the home of the woman defendant, furnished a drink of liquor by her and that defendant King joined them there. There were no proofs to show that he furnished liquor to the minor on that date.

Next the people undertook to show that on or about September 16, 1958, the minor was again at the woman defendant's home and was served a drink of liquor by each of the two defendants. To this defense counsel objected, insisting that he was entitled to know whether the prosecution was relying on an offense committed on September 10th or one occurring on or about September 16th for a conviction. There was an inconclusive answer by the prosecuting attorney indicating an intent to rely on an occurrence of September 16th or thereabouts, but, when pressed for greater definiteness by defense counsel, the prosecutor urged upon the court the right to show the furnishing of liquor by defendants to the minor on or about September 16th and on other occasions for the purpose of showing a pattern of defendants' conduct in relation to the minor. The prosecuting attorney was then permitted by the court to show the furnishing of liquor by defendants to the minor on the occasion on or about September 16th.

At the conclusion of the proofs the court found that the defendants furnished liquor to the minor 'on or about the 1lth or thereabouts, to the minor 'on or about the 16th or thereabouts, 10th' and found them guilty as charged.

We are satisfied from the record that, upon insistence by defense counsel that the prosecution elect as to the offense and date of offense on which it would rely, the defense was left with the understanding that the people were proceeding with the September 10th charge, with evidence of like offenses by defendants on other dates being offered solely to show a pattern of defendants' conduct in relation to the minor.

This is not, then, a case of slight uncertainty or mistake as to the actual date of the specific occasion and offense intended to be relied upon, as to which, under a videlicet, some variance between charge and proofs is not fatal so long as time is not of the essence of the offense. (See C.L.1948, § 767.45 [Stat.Ann. § 28.985] and C.L.1948, § 767.51 [Stat.Ann. § 28.991]). For such cases see People v. Ten Elshof, 92 Mich. 167, 52 N.W. 297; People v. Dieterich, 142 Mich. 527, 105 N.W. 1112; People v. Nichols, 159 Mich. 355, 124 N.W. 25; People v. Whittemore, 230 Mich. 435, 203 N.W. 87; People v. Jones, 308 Mich. 43, 13 N.W.2d 201; ...