People v. Licavoli

• Decision Date: 19 October 1933
• Docket Number: Motion No. 449.
• Citation: 250 N.W. 520,264 Mich. 643
• Parties: PEOPLE v. LICAVOLI et al.
• Court: Michigan Supreme Court

264 Mich. 643

250 N.W. 520

PEOPLE

v.LICAVOLI et al.

Motion No. 449.

Supreme Court of Michigan.

Oct. 19, 1933.

Appeal from Recorder's Court for City of Detroit; John V. Brennan, Judge.

James Licavoli and another were convicted of the crime of being disorderly persons, within Public Acts 1931, No. 328, § 167, and they appeal.

Appeal allowed, and defendants admitted to bail.

Argued before the Entire Bench.

NORTH, WEADOCK, and SHARPE, JJ., dissenting.

Edward H. Kennedy, of Detroit, for appellants.

Patrick H. O'Brien, Atty. Gen. and Harry S. Toy, Pros. Atty., and Chester P. O'Hara and Edmund E. Shepherd, Asst. Pros. Attys., all of Detroit, for the People.

WIEST, Justice.

Defendants were convicted of the crime of being disorderly persons within the meaning of section 167, Act No. 328, Public Acts 1931; it being charged that, from March 15 to September 11, 1933, they were engaged in an unlawful occupation and business; in that they had combined and confederated with others into an illegal combination created for the purpose of conducting illegal business, to wit, violation of the extortion statutes; violations of the statutes governing the carrying of concealed weapons; violations of the robbery statutes, and violations of the murder statutes of the state of Michigan. Upon trial by jury they were convicted and sentenced to imprisonment for ninety days, that being the maximum penalty.

The evidence against them consisted, in the main, of unsuccessful prosecutions for various crimes; records showing that Licavoli, in 1925, was fined $100 for carrying concealed weapons, served one year, commencing in June, 1929, for violation of the Federal Prohibition Law, and in 1930 he was charged with murder and acquitted. Practically the same proof, except imprisonment, was made against Bommarito. Police officers testified that defendants associated with men having the reputation of being murderers, stick-up men, bootleggers, and robbers, and had the reputation of being bootleggers, stick-up men, robbers, and murderers. No overt act was disclosed during the period charged. It is manifest from the record that defendants were convicted on evidence of repute under the following provision of the statute: ‘Proof of recent reputation for engaging in an illegal occupation or business shall be prima facie evidence of being engaged in an illegal occupation or business.’

The question before us at this time is whether that provision accords an accused ‘due process of law.’

Defendants were convicted of having the reputation of engaging in an illegal business or occupation, and therefore were guilty, in fact and beyond a reasonable doubt, of being engaged in an illegal business or occupation. The presumption so declared by the enactment is not a rational deduction or inference from fact to fact but an arbitrary fiat of the Legislature. If proof of reputation for engaging in an illegal occupation or business is constituted prima facie evidence of being engaged in an illegal occupation or business and, without more, establishes guilt, then we are all agreed that the statute is unconstitutional because violative of ‘due process of law.’

We are divided, however, upon whether the statute so provides.

Mr. Justice NORTH construes the provision to mean ‘that proof of recent reputation for engaging in an illegal occupation or business is competent proof thereof.’

I am of the opinion that the statute constitutes such proof of reputation prima facie evidence of guilt, and that such was and is its manifest purpose. I cannot read out of the statute the mandate carried by its express terms. It may be that the Legislature, in the use of the term ‘prima facie evidence,’ did not fully comprehend the legal significance thereof, but such, if true, does not call for our correction. We must presume that the lawmakers acted advisedly in the use of legal terms. At any rate, we are supposed to understand the meaning of the term, give it force as employed, if valid in purpose and effect, and deny it the force of law if it is in violation of ‘due process of law.’

The vice in this statute cannot be sterilized by the emasculation proposed by my Brother. Reputation, without regard to verity, is constituted prima facie evidence of guilt-not guilt of having such reputation but guilt of the specified crime. The statute constitutes it a misdemeanor to engage in an illegal business or occupation, and creates repute or hearsay proof of being so engaged, not merely competent evidence, but prima facie evidence of being so engaged and, without more, guilty of being so engaged. The statute constitutes extrajudicial utterances prima facie evidence of the ultimate fact of guilt. This takes no cognizance of the generic and strongest presumption known to the criminal law-that of innocence until guilt is established by competent evidence beyond a reasonable doubt.

But it is said that the statute should be so construed as to permit a jury to accept or reject such evidence. This would take the heart out of the enactment and render it too feeble to operate without substantive evidence. The purpose of the enactment is too plain not to be recognized, and its purpose, manifested by its language, is self-destructive. The statute does not provide for a mere inference from extrinsic indicatory proof, but constitutes reputation of engaging in an illegal business or occupation sufficient, without more, to convict an accused of the crime of engaging in an illegal business or occupation.

The petty case at bar, and the claimed bad character of defendants, does not cause me to overlook the consequences of judicial sanction of the course of law prescribed by this enactment.

‘The constitutionality of a law is determined, not alone by what has been done, but by what may be done, under its provisions.’ City of Watertown v. Christnacht, 39 S. D. 290, 164 N. W. 62, L. R. A. 1917F, 903.

If this enactment is held valid, then a like rule of evidence and inference and prima facie presumption of guilt may be made applicable to cases of felony.

Charges of felonious acts, based upon surmise, engendered by ill will or love of notoriety, may be disseminated and create a reputation by hearsay, and the fact of such reputation, and not the foundation or truth thereof, is all that need appear in court. I cannot yield to an arbitrary rule that reputation of engaging in an illegal business or occupation is a fact, and such fact may be shown and constitutes prima facie evidence of guilt. Under such a rule of evidence, no man's liberty is safeguarded, for malice, spite, gossip, unfounded accusation, slander, and libel, resulting in reputation, will come into court under the guise of a fact, termed reputation, without inquiry as to the utterers or of knowledge had by them, and be solemnly declared prima facie evidence of guilt in accord with due process of law. The statement that reputation is a fact and the fact may be proved has been made before.

In Commonwealth v. Stewart, 1 Serg. & R. (Pa.) 342, it was urged in a prosecution for keeping a disorderly house that the complaint of the neighbors was a matter of fact, and therefore, when the witness proved the complaint, she had only proved a fact within her own knowledge. But the Chief Justice said: ‘I am not satisfied with this ingenious distinction, which gets round and avoids an important rule of evidence. In the same way all hearsay evidence may be introduced, for it is always a fact, that the witness hears the other person speak, and it is a fact that the words spoken by that person were heard by the witness. But what is the consequence of receiving testimony of this kind? The jury are influenced by declarations not made upon oath, and the adverse party is deprived of the benefit of cross-examining the person making those declarations. * * * It appears to me, that the evidence amounted to no more than the general reputation of a disorderly house, and certainly this is not one of the cases in which general reputation is evidence.’

It must be remembered that defendants are not prosecuted for having a criminal reputation but for committing a specific crime, wholly independent of any reputation, and the statute constitutes such reputation prima facie evidence of their guilt. If reputation were the offense denounced by the statute, then we would have a different question. Defendants were denounced by hearsay and convicted by inference drawn therefrom.

Suppose an enactment like this is made applicable to illegal acts under the banking law, and some person, over the radio, broadcasts accusation of violation and designates and denounces the object of his suspicion, how long would it take to create and fasten the reputation of having committed such an offense? Would it be considered ‘due process of law’ not to call the accuser, or even his dupes, but sufficient to establish an illegal and criminal course of conduct by reputation of having engaged in such a course of conduct and constitutes such a reputation prima facie evidence of guilt?

It was stated in Hammond v. State, 78 Ohio St. 15, 84 N. E. 416, 417, 15 L. R. A. (N. S.) 906, 125 Am. St. Rep. 684,14 Ann. Cas. 732, in holding a somewhat similar statute unconstitutional: ‘If the General Assembly, in order to make conviction easier under this act, can rightfully provide that one of the essential and constituent elements of the crime charged, viz., the unlawful character of the trust or combination, may be shown and made certain by proof of common rumor or general reputation, and the guilt of the accused be thus established, it is difficult to see why it may not, with equal right, provide that murder, arson, or any other crime may be thus established by proof that the person accused thereof is generally reputed to be the person who committed the same, a proposition at once so obnoxious and repugnant to the plainest principles of reason and justice that none would yield assent to it. It is a matter of common...