People v. Kowalek

• Decision Date: 11 March 1941
• Docket Number: No. 114.,114.
• Citation: 296 N.W. 856,296 Mich. 714
• Parties: PEOPLE v. KOWALEK.
• Court: Michigan Supreme Court

296 Mich. 714

296 N.W. 856

PEOPLE

v.KOWALEK.

No. 114.

Supreme Court of Michigan.

March 11, 1941.

Helen Kowalek (Kovarik) was convicted of larceny by conversion, and she appeals.

Affirmed.

Appeal from Circuit Court, Wexford County; Fred S. Lamb, judge.

Argued before the Entire Bench.

Charles W. Gore, of Benton Harbor, for defendant and appellant.

Jack W. Korn, Pros. Atty., of Cadillac, for plaintiff and appellee.

SHARPE, Chief Justice.

Defendant was charged, tried and convicted of larceny by conversion as defined by Act No. 328, § 362, Pub. Acts 1931.

It appears that sometime in October, 1931, Mike Fortelka, the complaining witness, answered an advertisement in a Bohemian newspaper resulting in defendant coming to Fortelka's farm to act as his housekeeper. She remained there for about a week and then went away for a few days. Upon her return, she asked Fortelka how much money he had and was informed that he had $150 in cash and $300 in postal savings certificates. About this time there was some talk of marriage. Mike Fortelka cashed his postal savings certificates; and he and defendant went to the Cadillac State Bank where they rented a safety deposit box under joint names and with two keys. It is the claim of Mike Fortelka that defendant took the money to put into the box. The parties went home and put the two keys in the cupboard. The next morning defendant left the home of Mike Fortelka. A short time later Fortelka went to the bank, opened up the box and found it empty. The defendant admits the above facts except that Mike Fortelka did not give her any money to place in the safety deposit box.

Defendant appeals and contends that the prosecution failed to offer competent testimony to sustain the charge in the information; that the verdict was against the weight of the evidence; that the testimony offered by the people shows that the complaining witness gave the money to defendant; that the court erred in defining the crime of larceny by conversion; that the court erred in denying defendant's motion to quash the information; and that a new trial should be granted because of prejudicial remarks of the prosecuting attorney.

When the cause was being tried, defendant took the stand in her own behalf and testified that the complaining witness never gave her any money. The theory now advanced that the money was given to her was not presented to the trial court. We have repeatedly held that questions not raised in the trial of the case will not be considered by our court. See People v. Hassell, 208 Mich. 236, 175 N.W. 278;People v. England, 221 Mich. 607, 192 N.W. 612. Nor can we devote much space to the claim that the trial court erred in defining the crime of larceny by conversion. The record fails to show any of the instructions given by the trial judge. In their absence, we must presume that correct instructions were given to the jury.

It is next urged that defendant's motion to quash the information should have been disposed of before the trial of the cause. It appears that the motion was on file in the circuit court and regularly noticed for hearing on November 27, 1939, at 1:30 p. m. We do not find in the proceedings that counsel for defendant called the court's attention to the motion or urged him to pass upon it. His failure to present this question to the trial court and ask for a decision thereon will be deemed as a waiver of the motion and may not now be used as a means of securing a new trial.

It is also urged that the verdict was against the weight of the...