People v. McCrea

• Citation: 303 Mich. 213,6 N.W.2d 489
• Decision Date: 24 November 1942
• Docket Number: No. 51.,51.
• Parties: PEOPLE v. McCREA et al.
• Court: Supreme Court of Michigan

303 Mich. 213

6 N.W.2d 489

PEOPLE

v.McCREA et al.

No. 51.

Supreme Court of Michigan.

Nov. 24, 1942.

Duncan C. McCrea and others were convicted of conspiring to obstruct justice, and the named defendant appeals.

Judgment affirmed. Appeal from Circuit Court, Wayne County; Earl C. Pugsley, Judge.

Before the Entire Bench, except WIEST and BOYLES, JJ.

Duncan C. McCrea, of Detroit, in pro per.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Thomas A. Kenney, Asst. Atty. Gen., and Chester P. O'Hara, Sp. Pros. Atty., of Detroit, for the People.

STARR, Justice.

Defendant Duncan C. McCrea and other defendants appeal from their conviction under the second count of an information charging a conspiracy to obstruct justice. In this opinion we consider only the appeal of defendant McCrea.

McCrea was elected at successive biennial elections and held the office of prosecuting attorney of Wayne county from January 1, 1935, until about September 13, 1940, when he was removed from office by executive order of the Governor of the State in ouster proceedings (1 Comp.Laws 1929, § 3353 [Stat.Ann. § 6.696]).

The chain of events leading to the indictment, arrest, trial, and conviction of defendant McCrea and other defendants was started in August, 1939, by the suicide in Wayne county of one Janet McDonald who left letters, in effect, accusing public officials of corruption and graft. Such letters of accusation were given wide newspaper publicity and resulted in a demand for some official investigation of the charges made. At the time such letters were made public in August, 1939, defendant McCrea was in Florida. One William E. Dowling, chief assistant prosecuting attorney, was then acting as prosecutor during McCrea's absence. Dowling promptly began an investigation of Janet McDonald's suicide and the accusations made in her letters. McCrea returned by plane from Florida and, according to the testimony of Dowling and other witnesses, ordered the investigation stopped. On August 17, 1939, the mayor of Detroit wrote to Assistant Prosecutor Dowling recommending that a ‘petition be filed before the proper tribunal requesting a grand jury investigation.’ Dowling communicated with McCrea, who was then in the Upper Peninsula, and informed him of the mayor's letter and recommendation. McCrea declined to request such grand jury investigation and stated that he did not have ‘the facilities to conduct a thorough and complete investigation of all these charges and countercharges.’

Later in August, 1939, the circuit judges of Wayne county, sitting en banc, granted a private citizen's petition for a grand jury investigation and designated Circuit Judge Homer Ferguson to act as a one-man grand jury (3 Comp.Laws 1929, § 17217 [Stat.Ann. § 28.943]). A special prosecutor was appointed who acted in co-operation with an assistant attorney general of the State. McCrea and other defendants, and also other persons, were called as witnesses before such grand jury. McCrea, when called as a witness, claimed his constitutional privilege against self-incrimination (Const. 1908, art. 2, § 16) and refused to testify in response to certain questions of the special prosecutor, on the ground that his answers might tend to incriminate him. As a result of the grand jury investigation indictments were returned and warrants were issued against McCrea and other defendants. The preliminary examinations were conducted before Judge Ferguson, and McCrea and other defendants were held for trial.

The second count of the information charged defendant McCrea as prosecuting attorney and certain public officials and persons therein named and also ‘divers other persons' with the common-law offense of a conspiracy to obstruct justice. Such information charged, in part, that McCrea and others: ‘Knowingly conspired together * * * wilfully and corruptly to assist and enable the keeping, maintaining or operating of house of ill-fame * * * to assist and enable the keeping or maintaining of a gaming room or a gaming table or a game of skill or chance, * * * to-wit, handbooks, wherein bets were made upon horse races, * * * card games, and craps, * * * and to assist and enable the keeping or maintaining of * * * slot machines * * * and to assist and enable the setting up or promotion or management * * * of a certain lottery or gift enterprise for money, to-wit, the Red Horse Mutuels, the Lucky Tiger Mutuels and the Northwestern Mutuels, all being in violation of the laws of the State of Michigan; and to procure the wilful, intentional and corrupt failure, omission and neglect on the part of said * * * McCrea (and other officials) in their respective official and public offices * * * to perform their respective official duties as public officials of said county * * * in the enforcement of the criminal laws of this State * * * relating to prostitution, gambling and lotteries; and as a result of said agreement and conspiracy certain houses of ill-fame * * * were permitted to be kept, maintained or operated at various places in said county * * * and as a further result of such agreement and conspiracy the keeping or maintaining of a gaming room or gaming table or a game of skill or chance or partly of skill and partly of chance, used for gaming, for hire, gain or reward, to-wit, handbooks, wherein bets were made upon horse races, * * * card games, and craps, were permitted to be kept, maintained and operated at various places in said county * * * and as a further result of such agreement and conspiracy, certain games of skill or chance, or partly of skill and partly of chance, used for gaming, namely slot machines, were kept or maintained for hire, gain or reward, in said county, * * * and as a further result of such agreement and conspiracy a certain lottery or gift enterprise for money was set up, promoted or managed within the State of Michigan and county of Wayne, to-wit, the Red Horse Mutuels, the Lucky Tiger Mutuels and the Northwestern Mutuels * * * and certain money was paid by the keepers of these houses, the operators of said gambling rooms, games and devices, and the operators of said lotteries, or by their agents or employees to the foregoing public officials as a consideration for this agreement, and certain gifts and gratuities were presented by them to the said defendant public officials as a consideration for this agreement and accepted by the latter; he, the said * * * Duncan C. McCrea, as such prosecuting attorney, * * * being then and there enjoined by law with the duty of enforcing all criminal laws of the State of Michigan, including the laws pertaining to the keeping, maintaining or operating of houses of ill-fame, the keeping or maintaining of gambling rooms or gambling games or devices, and the setting up or promotion, operation, or management of lotteries and gift enterprises for money.’

The trial of McCrea and other defendants charged as co-conspirators began about January 8, 1941, and with various interruptions continued for over three months. At the conclusion of the people's proofs the trial court discharged seven of the defendants. McCrea took the stand and testified in his own defense. At the conclusion of all proofs the prosecution stated its election to go to the jury on the second count of the information, and the first court was accordingly dismissed by the trial court. The jury acquitted defendant Moceri and found McCrea and all other defendants (except Angelo Scaduto) guilty as charged. Scaduto, having waived jury trial, was found guilty by the court. McCrea was sentenced for a period of 4 1/2 to 5 years and fined $2,000. His motion and supplementary motions for a new trial were denied, and, having obtained leave, he appeals.

McCrea contends that the evidence presented does not support the jury's verdict. Under this contention he first argues that the verdict was against the great weight of the evidence. We have carefully reviewed the voluminous record and shall briefly discuss certain portions of the testimony pertinent to this and other contentions by McCrea.

Soon after taking office in January, 1935, McCrea appointed one Harry Colburn as chief investigator of the prosecutor's office. Colburn had been a close friend of McCrea for many years. He had no experience in law enforcement work. Prior to his appointment he had been engaged in the wholesale fish business and also in the tailor business. During the course of the trial Colburn, who was charged as a defendant and co-conspirator, pleaded guilty and thereafter testified as a witness for the prosecution. His testimony being important, we quote at some length therefrom:

‘I had conferences with the defendant Duncan C. McCrea with reference to the possibility of collections for such (illegal) enterprises in this county. It was shortly, almost immediately after I became chief investigator that Mr. McCrea told me that if we were smart we could make some money together and not get hurt. He, on that occasion, explained to me how this money could be made by collecting from these illegal enterprises and being careful not to promise too much. At that particular time nothing much was said with reference to who, if anybody, should make these collections. It was left for granted that I was going to do it. I suppose after I made one attempt which resulted in failure I suggested getting someone we could trust to handle it because I didn't feel that I wanted to do it myself. I made the suggestion to Duncan C. McCrea. He thought that was all right providing the man I got could be depended upon and he wouldn't get us into trouble.

‘Then I engaged Sam Block to handle these collections on a commission basis. He was to receive 10 per cent. for his services in making these collections from these illegal enterprises.

‘I did convey to Mr. McCrea knowledge of the fact that Sam Block was going to act as collector on a 10 per cent. basis. I do not remember any particular conversation that Mr....