People v. Lintz

• Decision Date: 04 December 1928
• Docket Number: No. 128.,128.
• Citation: 222 N.W. 201,244 Mich. 603
• Parties: PEOPLE v. LINTZ et al.
• Court: Michigan Supreme Court

244 Mich. 603

222 N.W. 201

PEOPLE

v.LINTZ et al.

No. 128.

Supreme Court of Michigan.

Dec. 4, 1928.

Error to Circuit Court, Genesee County; Edward D. Black, Judge.

M. C. Lintz and R. Whitesell were convicted of obtaining money of false pretenses, and they bring error. Verdict and judgment set aside, and new trial granted. Defendants remanded to custody of sheriff to await such trial.

Argued before FEAD, C. J., and NORTH, FELLOWS, WIEST, CLARK, McDONALD, and SHARPE, JJ. W. E. Barrett and C. A. Withey, both of Flint, for appellants.

Wm. R. Roberts, Pros. Atty., and Chas. D. Beagle, Asst. Pros. Atty., both of Flint, and Wilber M. Brucker, Atty. Gen., for the People.

SHARPE, J.

The defendants were convicted on a charge of having, on the 30th day of September, 1927, at the city of Flint, ‘with intent to cheat and defraud one Arthur L. Loveland and fraudulently to obtain $565 in money from him,’ falsely represented to him that a certain farm which he ‘was going to buy had a mortgage on it’ amounting to $565; that he, the said Loveland, believed said false pretenses and representations, and was induced by means thereof to deliver the sum of $565 to said defendants, ‘in order that they might pay off the mortgage’; and that said defendants designedly, and by means of said false pretenses and representations, did unlawfully and fraudulently obtain from said Loveland the said sum of $565, with intent to cheat and defraud him of the same; whereas in truth and in fact there was no mortgage on the premises.

The complainant, Loveland, testified that he was desirous of exchanging his home in the city of Flint for a farm; that defendants induced him to visit a farm near Clio, owned by Walter Franklin; that he did so, accompanied by the defendant Lintz; that, on their return to Flint, Lintz asked him how he wanted to deal, and he said he would exchange his home, subject to a mortgage on it of $2,500, for the farm ‘free and clear’; that Lintz said he thought there was a mortgage on the farm of $565, and he said, if there was, he would not deal, and that Lintz said he would find out; that the next day both defendants came to his home and wanted him to sign ‘a contract agreement,’ and that he refused to do so; that Whitesell said he would get Mr. and Mrs. Franklin to sign an agreement, and he then said, if they would do so, he would also; that they returned the next day with an agreement, signed by the Franklins, stating their place was ‘free and clear from all incumbrance, except a mortgage of $565,’ and that Lintz said that Whitesell would take care of the mortgage, that they would borrow the money at the Clio bank to pay the money back and pay up the taxes, and that he relied thereon and he and his wife then signed the agreement presented to them.

This instrument was an offer to Lintz to exchange the home in Flint, subject to the mortgage of $2,500, for the Franklin farm ‘free and clear of all incumbrance except one mortgage of $565 back.’ Both Loveland and his wife testified that certain matter was added thereto after they signed it. This is denied by both defendants. A copy was not left with the Lovelands. It may be here stated that the Franklin contract, which Whitesell had procured, was an agreement on the part of Franklin and his wife with Whitesell to exchange their farm ‘free and clear of all incumbrance’ for the Loveland home, subject to the $2,500 mortgage thereon. It contained no reference to a mortgage of $565 on the farm, as testified to by Loveland, and there was none on it.

On September 30th the Lovelands and the defendants went to the office of the register of deeds, where the abstracts were brought down to date. Whitesell then had the deed from the Franklins. The deed from the Lovelands was there executed. They then went to a bank at Clio, where the deal was consummated by the Lovelands executing a mortgage on the farm to the bank in the sum of $1,000. Of this amount, $565 was paid to Lintz, $180 paid, as Loveland claims, to both defendants for their commission on the sale, certain back taxes were deducted, and the balance retained by Loveland. On the following day the Lovelands went to the farm and discovered, as they claim, for the first time, that there had been no such mortgage thereon.

It is Loveland's claim that he was deceived by the representation made by the defendants that this mortgage was on the farm, and that he executed the $1,000 mortgage and paid the $565 out of the proceeds thereof in reliance thereon. It is upon this claimed representation that the charge in the information is based. The defendant Lintz denied making any such representation . He testified:

‘I told them I would trade subject to $565; I did not say whether it would be placed on or would not. They knew that there was no mortgage on there; the deeds all showed it. They read over the abstract. The abstract people told them it was free and clear. They understood, when the deal was through, they were to give me a mortgage personally for $565. I paid them absolutely what was agreed to.’

He denied that there was any statement made by him or Whitesell that the $565 was to cover a mortgage Whitesell had paid off on the property.

Whitesell testified that the Lovelands were told in the office of the register of deeds that the title to the Franklin farm was clear, except an old mortgage of $60 which had not been discharged; that Loveland paid him his commission in the bank; that he ‘did not pay me $565; he paid Mr. Lintz $565 to take care of the mortgage Mr. Lintz was supposed to have against the farm. * * * He said, ‘Here is your $565,’ to Mr. Lintz, and he handed it to him.'

A motion for a directed verdict at the conclusion of the people's case, and renewed when the proofs were closed, was denied. A motion for a new trial was made and denied. The defendants were sentenced to a maximum term of 10 years, with a minimum of 5 years, and here seek review by writ of error.

1. Directed Verdict. Defendants' counsel urge that the proofs clearly show that Loveland paid no more for the farm than he had agreed to pay in his contract with Lintz, that it was immaterial whether a part of the purchase price went to Lintz or to pay off a mortgage of $565, and that a verdict should have been directed for this reason. Loveland was without the advice of counsel. He testified that he relied on what he claims the defendants told him. He paid a commission to Whitesell for the services rendered by him in making the exchange of properties. If he made the deal relying on a representation of the defendants that the farm was incumbered to the extent of $565, and executed the $1,000 mortgage for the purpose of retiring this mortgage, and he thereby was induced to and did pay the sum of $565 more for the farm than he believed he was required to pay to Franklin, and if the jury should so find, we are of the opinion that the charge in the information would be sustained. The motion to direct was properly denied.

2. Error in the Charge. Defendants' counsel contend that the instructions given were in effect a direction to the jury to convict their clients. The prosecution insists that such instructions were warranted by the provision in our new Criminal Code, Act No. 175, Pub. Acts 1927, c. 8, § 29. For the benefit of the bench and bar of the state, and in order the consideration may be given to the charge as a whole, we insert it as a footnote hereto.¹

Section 29 reads as follows:

‘It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved. The court shall instruct the jury as to the law applicable to the case and in his charge make such comment on the evidence, the testimony and character of any witnesses, as in his opinion the interest of justice may require. The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.’

This Code was prepared by a commission appointed by the Governor under Act No. 15, Pub. Acts 1926 (Extra Session). The commission was assisted in its work by committees appointed by the Association of State Judges and the State Bar Association. Its report, with few important amendments by the Legislature, was enacted into a law, and has been commended generally by the people of the state. Among the changes in procedure is that above quoted, and it is before us for the first time for construction. Before its enactment, this court had held that, in certain classes of cases in which an intent to violate the law was not involved, if the evidence of a violation was not in dispute, the trial court might instruct the jury that the evidence disclosed the guilt of the accused, and that it was their duty to so find by their verdict. But, even in such cases, he could ‘not go further and peremptorily direct or compel such verdict. The responsibility for the verdict must be left with the jury. It must be their verdict, not the verdict of the judge.’ People v. Heikkala, 226 Mich. 332, 337, 197 N. W. 366, 367.

This statute provides that the court shall ‘make such comment on the evidence, the testimony and character of any witnesses, as in his opinion the interest of justice may require.’ In making such comment, care must be exercised. It must always be borne in mind that under our Constitution (article 2, § 13) ‘the right of trial by jury’ is secured to every person accused of crime, and ‘one of its substantial elements is the right of the jury to give a general verdict on the merits.’ Underwood v. People, 32 Mich. 1, 20 Am. Rep. 633.

The purpose of this and other procedural amendments to the criminal law in the Code was to give the trial judge a greater control in the trial of criminal cases; to enable him to...