People v. Martino

• Court: Michigan Supreme Court
• Writing for the Court: NORTH
• Citation: People v. Martino, 308 Mich. 381, 13 N.W.2d 857 (Mich. 1944)
• Decision Date: 03 April 1944
• Docket Number: No. 76.,76.
• Parties: PEOPLE v. MARTINO.

308 Mich. 381

13 N.W.2d 857

PEOPLE

v.MARTINO.

No. 76.

Supreme Court of Michigan.

April 3, 1944.

Carmine J. Martino was convicted of larceny by conversion, and he appeals.

Affirmed.

STARR, SHARPE, and BOYLES, JJ., dissenting.Appeal from Recorder's Court of Detroit; George Murphy, judge.

Before the Entire Bench.

Joseph A. Cassese, of Detroit, for appellant.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., William E. Dowling, Pros. Atty., and Edward A. Elsarelli, and Harold Helper, Asst. Pros. Atty., all of Detroit, for the People.

NORTH, Chief Justice.

Mr. Justice STARR has written for reversal and granting a new trial in this case. I am unable to concur in that result.

Defendant, on trial before a judge of the recorder's court of Detroit without a jury, was convicted of the crime of larceny by conversion and sentence imposed. In effect the controlling question presented is whether the testimony was sufficient to sustain the conviction. The trial judge was the trier of the issues of fact involved; and therefore it was within his province to weigh the testimony and to determine what measure of credence should be given to any portion thereof. Unless from the record we can say that the testimony did not establish defendant's guilt beyond a reasonable doubt, the conviction by the trial court should not be disturbed.

The record discloses a direct conflict between the testimony in support of the prosecution and that offered in behalf of defendant. In substance the information charges that defendant converted to his own use $480 belonging to Carlo Migliori. This sum of money is claimed to have been obtained by defendant incident to a subscription for stock in the United Credit Protection Service Corporation, a Michigan corporation, of which defendant was president. The theory of the prosecution and the claim of Migliori was that defendant after receiving the money did not deliver the stock to Migliori or in any way account for the money defendant had received. Because of there having been another payment of $20 the above mentioned sum of $480 is sometimes referred to in the record as $500. Migliori testified:

‘He (defendant) did not return the five hundred dollars. I don't see him anymore. He run away. * * * After I give the five hundred dollars, he didn't give me no stock.’

The foregoing testimony was contradicted by defendant; and as a part of his defense he gave testimony of a subsequent transaction incident to which defendant and his wife gave a note to Migliori for $2,500. Defendant claimed the amount of this note was made up of the following items: a loan of $1500 by Migliori to defendant, repayment by defendant to Migliori of the $500 which defendant is charged in the instant case to have unlawfully obtained, and $500 bonus. But Migliori definitely testified that the note transaction was not a repayment of the money with which he had sought to purchase stock or in any way connected therewith. He testified: ‘Q. Is it entirely a different thing? A. Different thing.’ Incident to the above note transaction defendant testified that the stock certificate which he claimed had been delivered to Migliori was not returned by the latter to defendant, but nonetheless defendant made an entry on the stub of the stock certificate that the same was cancelled.

All of the foregoing transactions occurred in a comparatively short space of time. The first payment by Migliori on the stock subscription was $50, May 14, 1931. A further payment of $430 was made June 5, 1931. The $2,500 note above mentioned was given by defendant and his wife to Migliori July 10, 1931. Shortly thereafter defendant disappeared. Obviously the theory of the prosecution was that defendant by preconceived plan sought to obtain from Migliori as much money as possible.

On behalf of defendant it is urged that the $480 involved in the prosecution was paid to the corporation and not to defendant. This, however, was clearly a question of fact under the testimony. And it is somewhat persuasive that the money was not paid to the corporation but instead was kept by defendant because under the latter's own testimony within a fortnight or so after defendant received the money from Migliori defendant and his wife gave their ninety-day note to repay the same money to Migliori. It is hardly conceivable this would have been done if instead of the money having gone to defendant it had gone into the treasury of the corporation. The receipts given to Migliori for the money he paid were marked Exhibits 1 to 3; and defendant testified: ‘I signed the receipts in evidence, exhibits 1 to 3. They cover the money that was turned over by Mr. Migliori to the cashier.’

The instant case is peculiarly one in which there should be adherence to the rule that the function of passing upon credibility of witnesses is in the trier of the facts in the trial court. It is to be presumed that the trial judge in the instant case was somewhat influenced in gaging the credibility of defendant by the fact that after he left Detroit and before he was apprehended in the instant case, he had been convicted of a felony in another state and had served a penitentiary sentence of five years, and he had also been convicted of obtaining $35 on a check issued without sufficient funds in consequence of which he served a 75-day jail sentence.

In addition to the foregoing defendant's testimony is replete with contradictions. Touching the matter of whether the stock certificate was returned by Migliori to defendant at the time the $2,500 note was given, defendant at first testified: ‘I told him to keep that (stock certificate) for security.’ Directly thereafter he testified: ‘When I gave him that note, I asked Mr. Migliori to return the stock certificate to me and he refused it,-told me not to worry about it.’ Again in his testimony he testified that when he asked Migliori for the stock certificate: ‘he tole me not to worry about it; that everything was all right. When he received his money he would be glad to return the certificate. I did not tell him to keep it as security.’

Further review of the record seems unnecessary. The case is peculiarly one of the type where the trial judge, sitting without a jury, had a distinct advantage in passing upon credibility by reason of his seeing and hearing the witnesses who gave conflicting testimony and observing their attitude and character while on the witness stand. Under the record in this case we should not substitute our judgment for that of the trial court. It is not disclosed that the testimony did not sustain defendant's conviction beyond a reasonable doubt. Defendant's conviction and the sentence imposed should be affirmed.

WIEST, BUTZEL, BUSHNELL, and REID, JJ., concurred with NORTH, C. J.

STARR, Justice (dissenting).

In March, 1942, defendant was convicted under an information charging that in June, 1931, he ‘feloniously and fraudulently did embezzle and convert to his own use’ $480 belonging to the complaining witness, Carlo Migliori.

3 Comp.Laws 1929, § 16911 (reenacted by Act No. 328, § 362, Pub.Acts 1931 [penal code], effective September 18, 1931, Comp.Laws Supp. 1940, § 17115-362, Stat.Ann. § 28.594), provides:

‘[If] any person to whom any money, goods or other property, which may be the subject of larceny, shall have been delivered, shall embezzle or fraudulently convert to his own use, or shall secrete with the intent to embezzle, or fraudulently use such goods, money or other property, or any part thereof, [he] shall be deemed by so doing to have committed the crime of larceny.’

In 1931 defendant was a stockholder, director, general manager, and president of the United Credit Protective Service Corporation (herein referred to as the corporation) which had offices in Detroit and was engaged in the collection service business. The complainant Migliori, who conducted a grocery store in Detroit, claimed in substance that he paid defendant $500 with which to purchase stock of the corporation and that defendant fraudulently converted the money to his own use. Defendant denied that he received the money, and claimed that Migliori paid it to the corporation and that certificate for $500 of stock was issued and delivered to him.

Upon trial without a jury defendant was convicted and sentenced to from one to five years. His motion for a new trial was denied, and he appeals, contending that there was no proof of felonious intent and that his conviction was against the great weight of the evidence.

In April, 1931, Migliori had entered into a written contract with the corporation for its collection services and paid $20 on the contract. He testified regarding the contract and the purchase of stock and payment therefor in part as follows:

‘On June 5, 1931, I gave the defendant $500. First I give him $20 to collect my account at the store. He came back and asked me, ‘Why don't you buy share?’ * * * I give him $500 to buy share in stock. * * *

‘The Court: * * * You gave him $500. Did he give you some stock back? A. He give me nothing.

‘He did not return the $500. I don't see him any more. He run away. * * *

‘Q. Did Mr. Martino give you credit for the $20 that you paid for this service? A. Yes. * * *

‘After I gave Martino the $480, or $500, I received a note signed by Mr. and Mrs. Martino. * * *

‘Q. Did you go to Mr. Martino and tell him you wanted a note signed by him and his wife to cover this money that you bought stock with? A. Yes.’

The testimony and exhibits indicate that Migliori paid $50 on May 14, 1931, and $430 on June 5, 1931, which, together with the $20 paid on the collection service contract, made a total of $500. The corporation issued and delivered to Migliori its receipt for the $50 payment, which stated, ‘to be applied on 20 shares of stock he (Migliori) is purchasing,’ and its...