People v. Lahey

• Decision Date: 08 December 1931
• Docket Number: No. 215.,215.
• Citation: 256 Mich. 250,239 N.W. 254
• Parties: PEOPLE v. LAHEY.
• Court: Michigan Supreme Court

256 Mich. 250

239 N.W. 254

PEOPLE

v.LAHEY.

No. 215.

Supreme Court of Michigan.

Dec. 8, 1931.

Appeal from Circuit Court, Muskegon County; John Vanderwerp, Judge.

William P. Lahey was convicted of failure to stop after automobile accident involving injury or death to a person, and he appeals.

Reversed, and a new trial ordered.

Argued before the Entire Bench.Cross, Foote & Sessions, Alexis J. Rogoski, and R. Glen Dunn, all of Muskegon, for appellant.

Paul W. Voorhies, Atty. Gen., and George H. Cross, Asst. Pros. Atty., of Muskegon, for the People.

CLARK, J.

Defendant was tried upon an information charging in two counts two statutory offenses, negligent homicide, section 16743, Comp. Laws 1929, and failing to stop in event of accident involving injury or death to a person. Section 30, Act No. 318, Public Acts of 1927, Uniform Motor Vehicle Act. The court refused to require an election of counts. Defendant was convicted under the second count, and acquitted under the first. From the judgment entered, he has appealed.

In the evening of January 30, 1931, defendant drove his automobile along a street in Muskegon. It collided with an automobile parked on the side of the street, and drove it against another parked automobile, fatally injuring a boy, Robert Gee, who was standing between the parked cars, and also injuring another boy, William Gee. Defendant did not stop. He claims he did not then know any one had been injured.

Evidence was adduced in support of both counts of the information. The motion to require the prosecution to elect between counts was made before any witness was sworn, and renewed at the close of the people's case. It was not granted. The case was submitted under both counts.

As sustaining his contention that no election was here necessary, the prosecuting attorney cites a number of cases from California. They are not in point. Section 954 of the Penal Code of California provides that an indictment or information may charge two or more different offenses ‘connected together in their commission.’ We find no similar statute in our state, except as respects larceny, section 17283, Comp. Laws 1929. The rule in this state is that no election can be required when an information contains two or more counts charging distinct crimes which were committed by the same acts, at the same time, and the same evidence must be relied on for conviction under either count. People v. Mathews, 207 Mich. 526, 174 N. W. 532;People v. Warner, 201 Mich. 547, 167 N. W. 878;People v. Sachse, 252 Mich. 275, 233 N. W. 227;People v. Sweeney, 55 Mich. 586, 22 N. W. 50.

In the case at bar, the first count could not be used to convict the defendant of the offense charged in the second. Evidence warranting conviction under the second count would not sustain a conviction under the first. Under the second count, defendant's prior negligence is not important, and he might be wholly innocent in respect of the accident itself, and yet be guilty of the offense charged. The offense under the first count was complete with the homicide. It is apparent these offenses do not grow out of the same facts.

In People v. Aikin, 66 Mich. 460, 33 N. W. 821, 824,11 Am. St. Rep. 521, the charge was manslaughter caused by alleged abortion. The first count charged manslaughter in usual form. The second charged manslaughter by the use of medicine and drugs. The third count charged manslaughter by use of an instrument. The fourth count charged manslaughter by reason of criminal neglect as a man midwife to whom the care of the deceased had been committed. It was held that the fourth count charged an offense of same degree as that charged in the other counts, but growing out of different facts, circumstances, and conditions, and it was said: ‘That where several offenses are charged, distinct in point of law, and 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, the court should either quash or compel the prosecutor to elect which offense he will ask a conviction upon.’

And it was held, quoting syllabus: ‘The true and only just rule governing 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...