People v. Larco

• Decision Date: 02 October 1951
• Docket Number: No. 59,59
• Citation: People v. Larco, 331 Mich. 420, 49 N.W.2d 358 (Mich. 1951)
• Parties: PEOPLE v. LARCO.
• Court: Michigan Supreme Court

Page 358

49 N.W.2d 358

331 Mich. 420

PEOPLE v. LARCO.

No. 59.

Supreme Court of Michigan.

Oct. 2, 1951.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Solicitor Gen., Lansing, Gerald K. O'Brien, Prosecuting Atty., County of Wayne, Ralph Garber, Chief Asst. Prosecuting Atty., Garfield A. Nichols, Asst. Prosecuting Atty., Chief, Appellate Division, and George W. Miller, Asst. Prosecuting Atty., Appellate Division, all of Detroit, for the People.

I. A. Capizzi, Frand S. Valenti, Detroit, (Orrin C. Jones, Detroit, of counsel), for appellant.

Before the Entire Bench.

CARR, Justice.

Defendant was tried before a jury in the Recorder's Court of the City of Detroit and has appealed from the verdict and sentence. The information in the case contained two counts. The first count, under which defendant was convicted, alleged the offense of obtaining money under false pretenses in violation of C.L.1948, § 750.218, Stat.Ann. § 28.415. The second count charged the common law offense of soliciting a bribe, the punishment for which is fixed by C.L.1948, § 750.505, Stat.Ann. § 28.773. The case was submitted to the jury under a charge permitting the return of a verdict of not guilty as to both offenses or a verdict of guilty as to either. It is defendant's claim on this appeal that he is entitled to have the verdict and sentence set aside and to be discharged, or, in the alternative, to a new trial because of errors occurring in the course of the trial.

In each count of the information the offense charged was alleged, under a videlicet, to have been committed on or about July 27, 1948. At that time the defendant was a member of the public force of the City of Detroit, with the rank of inspector, and was in charge of Precinct Station No. 15, referred to in the record as the Connors Station. It was the claim of the people on the trial that one Stanley Hondzinski was operating a tavern or bar in the City of Detroit under a so-called Class C liquor license issued by the Michigan Liquor Control Commission. He desired to sell the business and made an agreement to that end, subject to obtaining the approval of the commission for the transfer of the license to the purchaser. The procedure with reference to obtaining such an approval is set forth in the record and is summarized by counsel for defendant in their brief as follows: 'The system used by the Liquor Control Commission in connection with its approval or disapproval of the sale and transfer of bar licenses is briefly as follows: The parties purchasing the license apply to the commission for a transfer of the license. The commission makes a preliminary investigation with its men and after they are satisfied that the transaction is proper and has met certain requirements, they make a request to the Detroit Police Department for a similar investigation. The deputy director approved for the commission on July 15, 1948. It is expected that the Detroit police will examine the premises; talk to the new owner; check his or her criminal record; take their finger prints; express whether in the judgment of the department the new owner is qualified to run the business, etc. The requests from the commission are mailed to the deputy superintendent; he then sends it to the precinct in which the bar is located; the precinct inspector has a sergeant make the inspection, take the statement and check the criminal record. The recommendation is then endorsed by the inspector, returned to the deputy superintendent for his indorsement and mailed to the commission. Final approval rests in the Liquor Control Commissioners themselves.'

It was further the claim of the people that while the application for the approval of the transfer was pending defendant called Hondzinski by telephone, requesting that he come to the Connors Station. Hondzinski did so and was advised by defendant in substance, as it is claimed, that the papers were ready and that the obtaining of the desired approval to the transfer might be expedited for the sum of $300. Hondzinski, according to his testimony, obtained that amount and turned it over to defendant, who had made reference in his conversation with the witness to 'connections' that he claimed to have. Defendant, testifying in his own behalf, denied the claims of Hondzinski, asserting that he had not received any money from him.

Both counts in the information were based on the alleged transaction between defendant and Hondzinski. The first count, under which defendant was convicted by the jury, alleged that for the purpose of obtaining the $300 defendant 'did designedly and falsely represent and pretend that he, the said Michiael Larco, had the authority to approve or disapprove the transfer of a Class C liquor license from the said Stanley Hondzinski, Sr., to one Anna C. Mulawa, and did further represent and pretend, by his words and conduct, that the final decision as to the approval or disapproval of said transfer, rested with him, the said Michael Larco, and did further represent and pretend that by reason of his knowledge and acquaintance with the Liquor Control Commission of the State of Michigan and other unnamed persons that he, the said Michael Larco, could and would effectuate a transfer of said license and that in order for him, the said Michael Larco, to so do, it would be necessary for him to pay the said acquaintances and unnamed persons the sum of three hundred dollars and that the said payment by him, the said Michael Larco, was necessary for the obtaining of said transfer, * * *.' The second count alleged that defendant was a member of the police department of the City of Detroit and that he solicited Hondzinski to give to him, the defendant, the sum of $300, the intent and purpose being to influence the action of officers and agents of the Michigan Liquor Control Commission in obtaining a 'speedy approval' of the transfer of the liquor license in question.

At the outset of the trial counsel for defendant moved to quash the information alleging, among other grounds, that the joinder of counts was improper. It does not appear that the court was asked to compel the people to elect on which count they would proceed or that an order was specifically sought in accordance with the provisions of C.L.1948, § 767.75, Stat.Ann. § 28.1015, which reads as follows: 'No indictment shall be quashed, set aside or dismissed for any 1 or more of the following defects: (First) That there is a misjoinder of the parties accused; (Second) That there is a misjoinder of the offenses charged in the indictment, or duplicity therein; (Third) That any uncertainty exists therein. If the court be of the opinion that the first and second defects or either of them exist in any indictment, it may sever such indictment into separate indictments or informations or into separate counts as shall be proper. If the court be of the opinion that the third defect exists in any indictment, it may order that the indictment be amended to cure such defect.' The motion was denied, and defendant now claims that such ruling was erroneous. It is urged that the counts in the information charged wholly different offenses and that it was prejudicial to the rights of the defendant to try him on both charges under one information. On behalf of the people attention is directed to the fact that both counts were based on the same transaction, and that the parties, dates, and proofs involved, were identical.

With reference to the question at issue, it was said in People v. McKinney, 10 Mich. 54, 95: '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.'

In People v. Warner, 201 Mich. 547, 167 N.W. 878, the defendant was prosecuted under an information that charged in the first count assault with intent to do great bodily harm less than the crime of murder, and in a second count assault with a dangerous weapon, but without intending to commit the crime of murder and without intending to inflict great bodily harm less than the crime of murder. A motion to require the prosecuting attorney to elect on which count he would proceed was denied. Both counts were based on the same transaction. In holding that denial of the motion was not erroneous the court quoted from the syllabus in People v. Sweeney, 55 Mich. 586, 22 N.W. 50, as follows: "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." [201 Mich. 547, 167 N.W. 880.]

In the recent case of People v. Percin, 330 Mich. 94, 47 N.W.2d 29, the information under which the defendants were convicted charged on the first count an attempt to extort...