People v. Millman, 91.

Citation10 N.W.2d 885,306 Mich. 182
Decision Date16 June 1943
Docket NumberNo. 91.,91.
PartiesPEOPLE v. MILLMAN.
CourtSupreme Court of Michigan

OPINION TEXT STARTS HERE

Samuel Millman was convicted of conspiracy to obstruct justice, and he appeals.

Affirmed.

Appeal from Recorder's Court of Detroit; Arthur E. Gordon, judge.

Before the Entire Bench.

George S. Fitzgerald, of Detroit, for defendant and appellant.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, a. Floyd Blakeslee and Daniel J. O'Hara, Asst. Attys. Gen., and Ralph E. Helper, Asst. Pros. Atty., of Detroit, for appellee.

CHANDLER, Justice.

The appellant herein, Samuel Millman, was convicted by a jury in the Recorder's Court for the City of Detroit of the charge of conspiracy to obstruct justice, and was sentenced by said court to be committed to the State Prison of Southern Michigan for a term of not less than two years, nor more than five years. From such judgment he appeals to this court, alleging numerous errors on the part of the trial court.

To detail the facts as disclosed by the record would be a mere repetition of what has been said by Chief Justice Boyles in People v. Robinson, 305 Mich. --, 10 N.W. 817, decided June 7, 1943. Both Robinson and the respondent herein, together with others, were charged with the common law offense of conspiring to obstruct justice, were tried together and both duly convicted. The two cases present practically the same questions for our determination.

Appellant's statement of questions involved are 11 in number. We will discuss them, where we deem discussion necessary, in the order stated.

1. Did the court err in refusing to quash the information against respondent?

Appellant in his brief contends, ‘There was not probable cause shown at the preliminary examination’, and therefore his motion to quash the information should have been granted.

None of the testimony taken on the preliminary examination appears in the record. Neither does the record show a motion to quash the information on behalf of appellant prior to plea of not guilty, trial and conviction. Even if such motion had been timely made, the absence of the testimony taken at the examination from the record precludes us from determining that said motion was erroneously denied. See People v. McCrea, 303 Mich. 213, 6 N.W.2d 489.

2. Did the court err in refusing to grant a separate trial to respondent?

We have searched the record in vain in an effort to ascertain if a demand, or a motion for separate trial was made by respondent and the reason, or reasons for such demand or motion. In no place does counsel for respondent in his statement of facts or the argument advanced in support of this question, disclose that such a motion or demand was made. Counsel in his argument contends: ‘It is conceded that it is discretionary with the court whether or not a respondent, jointly indicted with others, is granted a separate trial. When the accused is put in jeopardy, however, by the refusal of a separate trial, this amounts to an abuse of discretion.’

We determine that this question is not before us for review.

3. Did the court err in failing to direct the jury to find the appellant not guilty at the conclusion of the people's proofs?

Counsel for respondent contends: ‘The record is barren of any positive testimony that defendant Millman acted in concert, or that he was implicated in any way other than being present at the several places where the other defendants were present.’

It is not the province of this court to determine questions of fact in criminal cases where there is a conflict of evidence. There is testimony in this case which, if believed by the jury as it evidently was, conclusively establishes the guilt of respondent beyond a reasonable doubt.

The defendant admits his presence at meetings between his alleged co-conspirators, but his counsel contends that there is no testimony that he actively participated in a conspiracy, if one existed, and that the testimony only establishes Millman's presence, and assumed acquiescence in said conspiracy, and that that is not sufficient under the law to justify a verdict of guilty.

The record discloses conferences between respondent, police officers Brouillet and Farrish, and Bernstein and Silverston, alleged co-conspirators, upon several occasions immediately following the arrest of Holtzman, Cooper, Jacobs and Feldman, the alleged holdup men, and the passing of $300 from Silverston to the police officers in the presence of all of the above named, said officers being given this money for the purpose of ‘fixing’ the testimony of the witnesses in the Robinson robbery case, in order to have the charge of robbery dismissed. It further appears that at the time this money was paid $700 more was promised to said police officers if the testimony in the robbery case was ‘fixed’. In case the testimony could not be fixed, the the police officers were to ‘kick back’ said $300 to appellants, Bernstein and Silverston, Farrish testified that the $300 was received by him; that from this money, he spent $50 for drinks and other things, gave $50 to Brouillet, kept $50 for himself and later at the request of respondent returned to him the balance of $150.

This testimony was evidently quite conclusive to the minds of the jury that not only was respondent a participant in this unlawful conspiracy but that he was a willing and active one; that he did what he could to bring to a successful conclusion this scheme, or plan to corruptly ‘fix’, for the men charge with robbery, the testimony of the witnesses against them.

We are persuaded by a reading of the entire record that there was ample testimony upon which to base a verdict of guilty against respondent.

The respondent had always been what might be termed a small time racketeer. He admitted that the only business in which he had ever been engaged was that of participating in the conducting of hand books in and about the City of Detroit; that he had an interest in two hand books and that two of the four persons charged with the robbery...

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5 cases
  • People v. Newsome
    • United States
    • Court of Appeal of Michigan — District of US
    • 28 Junio 1966
    ...of the court.' The record is devoid of any motion or request made on behalf of any appellant for separate trial. In People v. Millman (1943), 306 Mich. 182, 10 N.W.2d 885, in a headnote it is stated as follows: 'Whether or not defendant was erroneously denied a separate trial on charge of c......
  • People v. Tubbs
    • United States
    • Court of Appeal of Michigan — District of US
    • 25 Marzo 1970
    ...v. Henseler (1882), 48 Mich. 49, 51, 11 N.W. 804. See also People v. Stewart (1910), 163 Mich. 1, 127 N.W. 816; People v. Millman (1943), 306 Mich. 182, 10 N.W.2d 885. ...
  • People v. Roxborough
    • United States
    • Michigan Supreme Court
    • 29 Diciembre 1943
    ...throw some light on the factual background. See, also, People v. Robinson, 306 Mich. 167, 10 N.W.2d 817, and People v. Millman, 306 Mich. 182, 10 N.W.2d 885. The information filed on December 12, 1940, charged in count 1 that Roxborough and others maintained and operated ‘a certain lottery ......
  • People v. Humphreys
    • United States
    • Court of Appeal of Michigan — District of US
    • 22 Junio 1970
    ...and cite many cases supporting their contention, among them People v. Hancock (1950), 326 Mich. 471, 40 N.W.2d 689; People v. Millman (1943), 306 Mich. 182, 10 N.W.2d 885; and People v. Panknin (1966), 4 Mich.App. 19, 143 N.W.2d 806. Before reciting the remark and relating the setting in wh......
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