People v. Matthews

• Decision Date: 22 June 1939
• Docket Number: No. 103.,103.
• Citation: People v. Matthews, 289 Mich. 440, 286 N.W. 675 (Mich. 1939)
• Parties: PEOPLE v. MATTHEWS.
• Court: Michigan Supreme Court

289 Mich. 440

286 N.W. 675

PEOPLE

v.MATTHEWS.

No. 103.

Supreme Court of Michigan.

June 22, 1939.

Andrew A. Matthews was convicted of unlawfully appropriating to his own use money in excess of $50 received by him in his official capacity as a justice of the peace, such money having been received in payment of fines imposed in cases tried before the justice, and he appeals.

Affirmed.Appeal from Circuit Court, Barry County; Russell R. McPeek, judge.

Argued before the Entire Bench; except POTTER, J.

L. E. Barnett, of Hastings, for appellant.

Archie D. McDonald, Pros. Atty., of Hastings, for the People.

NORTH, Justice.

Andrew A. Matthews was charged and convicted under Section 175 of the Michigan Penal Code (Act 328 Pub.Acts 1931) with knowingly and unlawfully appropriating to his own use money in excess of $50 received by him in his official capacity as a Justice of the Peace, such money having been received in payment of fines imposed in cases tried before the justice. Matthews, tried by the circuit judge without a jury, has appealed.

First he complains that he was wrongfully bound over to the circuit court for trial without having had a proper examination and without having waived examination. Comp.Laws 1929, Sec. 17256; Stat.Ann. 28.982. On being arraigned in the circuit court he stood mute and by motion to quash presented to the circuit judge the alleged errors incident to his examination. The motion to quash was denied, and we first review this phase of the record.

I. Examination. The complaining witness in this prosecution was Glenn Swift. Upon the examination before the magistrate the prosecutor called other witnesses, but without calling Swift definitely announced that he had completed the testimony he proposed to offer. Thereupon defendant's counsel asked that Matthews be dismissed because the prosecuting attorney had not produced the complaining witness for examination. See Comp.Laws 1929, Sec. 17196; Stat.Ann. 28.922. It was not imperative that the complaining witness should be produced. People v. Curtis, 95 Mich. 212, 54 N.W. 767. However the complaining witness was produced later and his testimony taken. There is no merit to appellant's contention that by this procedure he was compelled to point out to the prosecuting attorney an essential element of the examination and in effect compelled to assist the prosecution in a manner tantamount to being made a witness against himself. Calling Swift after defendant's counsel had raised the objection, was not prejudicial error. People v. Blake, 157 Mich. 533, 122 N.W. 113.

While the examination before the justice was pending he made the announcement that he found there was probable cause to believe the offense charged had been committed and he would bind defendant over to the circuit court for trial. Obviously this statement of the justice did not constitute full compliance with the statutory requirement that on an examination the prosecutor must show that the offense charged has been committed and that there is probable cause to believe it was committed by the accused. Comp.Laws 1929, Sec. 17205; Stat.Ann. 28.931. But notwithstanding this preliminary announcement of the justice he subsequently made written return to the circuit court that the testimony before him disclosed the offense charged had been committed and there was probable cause to believe defendant herein was guilty thereof. This was a proper return and was justified by the testimony taken on the examination, at least appellant has not demonstrated the contrary. There was no error in this particular notwithstanding the examining magistrate refused the request of defendant's counsel for an adjourment in order that further argument might be made and authorities presented as to the testimony taken on the examination being sufficient to justify binding defendant over for trial to the circuit court. Under the circumstances we find no merit in appellant's various claims that ‘improper, irrelevant and immaterial evidence’ was received on the examination over the objection of defendant's counsel. Granting such to be the fact, since there was sufficient competent testimony it was not error to hold defendant for trial. Other of defendant's objections to the regularity of the examination and as to its being such as justified binding him over to the circuit court for trial have been considered but we find them to be without merit.

II. Failure of Defendant to Qualify as Justice. On his trial in the circuit court Matthews urged as a defense that he could not be convicted under the information charging him with misconduct as a public officer, i. e., a justice of the peace, because of his failure to comply with the requirements of the statute and the city charter of Hastings where he was elected, as to filing an oath of office and proper official bonds.

‘Every township office, including the office of justice of the peace, shall become vacant, upon the happening of either of the events specified in chapter fifteen (15) [Comp.Laws 1929, Sec. 3350; Stat.Ann. 6.693], as creating a vacancy.’ Comp.Laws 1929, Sec. 996

‘Every office shall become vacant, on the happening of either of the following events, before the expiration of the term of such office:

* * *

‘7. His [the incumbent's] refusal or neglect to take his oath of office, or to give or renew any official bond * * *.’ Comp.Laws 1929, Sec. 3350; Stat.Ann. 6.693.'

The Charter of the City of Hastings provides:

‘Justices of the Peace elected in the city shall take and file an oath of office with the County Clerk within the same time and in the same manner as in cases of Justices of the Peace elected in townships.’ Hastings City Charter, Chapt. 5, Sec. 5.

‘Each Justice of the Peace, in addition to any other security required by law to be given for the performance of his official duties shall, before entering upon the duties of his office, give a bond to the city, in penalty of $1000.00 with sufficient sureties to be approved by the mayor, which approval shall be endorsed upon the bond, conditioned for the faithful performance of the duties of Justice of the Peace within and for the city.’ Hastings City Charter, Chapt. 6, Sec. 32.

In addition to the above charter requirement for filing a bond, the statutes of this state provide: ‘Each justice of the peace, before he enters upon the duties of his office, and within the time limited by law for filing his official oath, shall execute, in the presence of * * * the county clerk with one or more sufficient sureties, to be approved by such * * * county clerk, an instrument in writing, by which such justice and his sureties shall jointly and severally agree to pay to each and every person entitled thereto, all such sums of money as such justice shall become liable to pay, for, on account of any money which may come into his hands as a justice of the peace.’ Comp.Laws 1929, Sec. 1026; Stat.Ann. 5.78.

Defendant filed an oath of office and an official bond with the county clerk, but he did not file a bond as required by the charter of the city of Hastings. Defendant contends, for reasons he has pointed out, that the bond filed with the county clerk did not comply fully with statutory requirements. For the purpose of decision herein it may be conceded that the bond filed with the county clerk did not fully comply with the statutory requirement and that no bond or oath of office was filed under the provision of the city charter. Notwithstanding this we think it conclusively appears from this record, as the circuit judge held, defendant was an officer de facto. In April, 1931 he was elected to fill a vacancy; and in April, 1933, he was elected as a justice for a period of four years. He served until his term expired in 1937. In the very transactions out of which the criminal conduct herein charged arose defendant was acting as a justice of the peace. In that capacity he received the money which he is charged with having knowingly and unlawfully appropriated to his own use. Under such circumstances it does not lie in his mouth to assert that by reason of his having failed to properly qualify he was in no sense a public officer and therefore could not be convicted for violation of the statute under which he was prosecuted for malfeasance as a public officer. Notwithstanding the statute first above quoted provides the...