People v. Morris, Docket No. 5106
| Decision Date | 25 May 1970 |
| Docket Number | No. 2,Docket No. 5106,2 |
| Citation | 179 N.W.2d 405,23 Mich.App. 688 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Philip Henry MORRIS, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Frank L. Talkow, Flint, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.
Before FITZGERALD, P.J., and R. B. BURNS and VAN DOMELEN, * JJ.
Appellant appeals from a conviction of conspiracy 1 to commit embezzlement. 2 As only questions of law are raised, it is unnecessary to review the facts. Appellant and Charles Campbell were charged in a complaint and warrant with:
'COUNT I: Philip Henry Morris and Charles Campbell * * * being the agents of the Flint Transportation Authority, in the City of Flint, did by virtue of being such agents receive and take into their possession certain money, to-wit: United States Currency and Silver in the excess of one hundred ($100.00) dollars of the property of the Flint Transportation Authority of the City of Flint which money came into the possession and under the control of Philip Henry Morris and Charles Campbell by virtue of their employment and Philip Henry Morris and Charles Campbell did dispose of and convert said money to their own use and did embezzle the said money.'
The second count of the complaint and warrant, containing the conspiracy charge, did not recite the facts that the two were Employed by this transit authority nor that they planned to Use their positions to obtain the money. This is the basis on which the tenuous argument of appellant finally rests. That count read as follows:
'COUNT II: Philip Henry Morris and Charles Campbell between the dates of August 2nd and 3rd, A.D., 1967, unlawfully falsely, deceitfully, did combine, conspire, confederate and agree together by subtle means and devices to obtain and acquire unto themselves, and convert to their own use a sum of money in excess of one hundred ($100.00) dollars, the property of the Flint Transportation Authority.'
At the preliminary examination, the magistrate informed Morris and Campbell that they were being examined relative to two charges: Count I, Embezzlement, and Count II, conspiracy to commit Embezzlement.
Finding no probable cause, the magistrate dismissed the embezzlement count as to Campbell, but bound appellant over for trial on that count. Both men were bound over for trial on the conspiracy count. At the arraignment on this information, the court dismissed the embezzlement count as to appellant. The two men were then arraigned on an information that charged they 'unlawfully, falsely, deceitfully, did combine, conspire, confederate and agree * * * to acquire unto themselves, and convert to their own use * * * the property of the Flint Transportation Authority * * *' This second information did not contain the specific phrase 'conspiracy to embezzle' or 'by virtue of their positions.' However, the following caption and notations appeared on the information:
'INFORMATION FOR CONSPIRACY TO COMMIT EMBEZZLEMENT
F-STATE PRISON
10 YRS and $10,000 FINE'
Just before the embezzlement count was dismissed as to appellant, the assistant prosecuting attorney referred to that information as containing two counts: Count I, Embezzlement and Count II, Conspiracy to Commit Embezzlement. After Count I was dismissed, he read the generally worded information. The trial judge apparently attempted to clarify the situation by telling the defendants:
Defense counsel advised his clients to stand mute because 'there is some question as to the confederation in the new Information that may require some thought and some further motion before your Honor.'
No further mention of the sufficiency of the information was initiated by appellant. A jury was selected the following day at which time the generally worded information was read to them. The next day the people moved to amend the information to more specifically charge conspiracy to embezzle. The trial judge, in the exercise of the discretion accorded him by statute, 4 granted the motion. The amended information contained the phrases 'conspiracy to commit * * * embezzlement', 'being the agents or employees or the * * * Authority' and 'by virtue of their being such agents or employees * * *' Defense counsel timely objected to the granting of this motion. The amended information was then read to the jury.
Appellant claims that the amended information charged him with a completely different crime than had the prior one, and that he was unfairly surprised to his prejudice.
The above statute provides that the court may,
'* * * at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or admission in form or substance or of any variance with the evidence * * * the accused shall on his motion be entitled to a * * * reasonable continuance of the cause unless it shall clearly appear from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made * * *'
It is also provided by statute 5 that:
In interpreting these statutes, it has been held that the accepted rule is that any amendment not prejudicial to the rights of the...
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People v. Fuzi
...is whether the amendment would be prejudicial to the accused. To show prejudice, one must first show surprise. People v. Morris, 23 Mich.App. 688, 692, 179 N.W.2d 405 (1970). Defendant made no timely objection to the defect in the information, and does not claim that he would have been surp......
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People v. Potts
...is sufficiently apprised of the nature of the offense. People v. White, 22 Mich.App. 65, 176 N.W.2d 723 (1970); People v. Morris, 23 Mich.App. 688, 692, 179 N.W.2d 405 (1970). Further, it cannot be argued that the statutory offense of conspiracy imposed a greater maximum sentence since the ......
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People v. Kiser
...accepted rule is that any amendment to an information not prejudicial to the rights of defendant should be allowed. People v. Morris, 23 Mich.App. 688, 179 N.W.2d 405 (1970). The defect complained of here was amendable upon proper objection. People v. Sutherland, 104 Mich. 468, 472, 62 N.W.......
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Amending Indictments in Colorado: Rule 6.8, Colo. R. Crim. P
...Gallo, 318 N.E.2d 187 (Mass. App. 1974); cf. Commonwealth v. Harris, 1 Campb. 455, 3 Legal Gaz. 306 (Pa. 1871). 54. People v. Morris, 23 Mich. App. 688, 179 N.W.2d 405 (1970). 55. Byrd v. State, 228 So.2d 874 (Miss. 1969); see 42 C.J.S. Indictments and Informations§ 240 at 1250. 56. Annot.,......