People v. McCann

• Citation: 201 N.W.2d 345,42 Mich.App. 47
• Decision Date: 24 July 1972
• Docket Number: Docket Nos. 11767,No. 3,11768,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas McCANN, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 345

201 N.W.2d 345

42 Mich.App. 47

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas McCANN, Jr., Defendant-Appellant.

Docket Nos. 11767, 11768.

Court of Appeals of Michigan, Division No. 3.

July 24, 1972.

Leave to Appeal Denied Oct. 18, 1972.

Released for Publication Oct. 27, 1972.

Ralph H. Bower, Midland, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward G. Durance, Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and HOLBROOK and O'HARA, ^* JJ.

O'HARA, Judge.

These are appeals of right from convictions by a trial judge trial on waiver of jury trials. The first is for larceny. ¹ The second is for perjury. ² The perjury charge grew out of defendant's testimony in the larceny case. We consider them together.

In substance, this is what happened. Defendant's father sold an automobile to one of his employees. The consideration was a note for $1,752.00 payable at $73.00 per month for 24 months. McCann, Sr., deposited the note with a bank for collection. Payments were not made as scheduled. The bank returned the note to the payee. McCann, Sr., took the matter up with his son. The son, with more determination than judgment, hired a wrecker, located the car and hauled it back to some neutral ground. Defendant did have the writ to call the police before he seized the car and tell them of his intention so to do. As far as we can tell from the record, the police evidenced precious little interest in the affair. Defendant claimed he acted under color of right. He exhibited the note that had the following notation across it: '1965 Chev. Imp. conv. Ownership will remain in the seller.' Thus said McCann the younger, 'All I did was pick up and haul away my father's car.' Not so, said the wife of the employee-purchaser. The original note contained no such language. In support of her contention she exhibited a photocopy of the note as originally deposited with the bank. The car was my husband's. At best, McCann, Sr., had a simple action in debt for the unpaid balance of the note.

Enter Mr. Voorhees, McCann, Sr.'s accountant and, incidentally, father-in-law of McCann, Jr. Said Mr. Voorhees in effect: I drew up the note and omitted any reference to the identification of the vehicle and the title retention because the employee purchaser needed his wife's signature on the note and didn't want her to know why he was borrowing the money. Then Mr. Voorhees said After the note had been placed with the bank for collection, he, Voorhees, went to the bank, got the note and typed the title retaining words and vehicle description on the note. It is to be remembered that the note had not been negotiated or discounted and was simply in the bank for the purpose of receiving and crediting payments.

We have reviewed the record with care and addressed ourselves studiously to the briefs. Whatever defendant McCann did, or however bad his judgment, he didn't commit the crime of larceny. We can only say, as our own Supreme Court said for the ages years ago:

'In all cases where one in good faith takes another's property under a claim of right so to do * * * he is exempt from the charge of larceny, however puerile or mistaken the claim may in fact be.' People v. Hillhouse, 80 Mich. 580, 587, 45 N.W. 484, 486 (189...