People v. Nankervis

• Citation: 330 Mich. 17,46 N.W.2d 592
• Decision Date: 01 March 1951
• Docket Number: No. 78,78
• Parties: PEOPLE v. NANKERVIS.
• Court: Supreme Court of Michigan

Page 592

46 N.W.2d 592

330 Mich. 17

PEOPLE v. NANKERVIS.

No. 78.

Supreme Court of Michigan.

March 1, 1951.

Stephen J. Roth, Atty. Gen. of Michigan, Edmund E. Shepherd, Solicitor Gen., Lansing, Gerald K. O'Brien, Prosecuting Atty. for Wayne County, Michael A. Guest, Asst. Prosecuting Atty., Detroit, for the people.

Herbert E. Munro, Attorney, Detroit, (Philip J. Caruso, Detroit, of counsel), for defendant and appellant.

Before the Entire Bench.

DETHMERS, Justice.

The information filed in this case contained two counts. The first charged that defendant, as an employee of the city of Detroit in the recorder's court traffic and ordinance division, did, from October 1, 1947, to April 1, 1948, request and accept payments of bribes to himself for his removal of records of traffic violations by certain persons from the files of that court contrary to P.A.1931, No. 328, § 125, C.L.1948, § 750.125, Stat.Ann. § 28.320. The second count charged defendant with willful neglect of the duty enjoined upon him by law as a person holding public and employment, viz., failing, as an employee of said court, to forward and preventing the forwarding to the secretary of state of records of traffic violations by certain persons contrary to P.A.1931, No. 328, § 478, C.L.1948, § 750.478, Stat.Ann. § 28.746. Defendant's motion at the opening of trial that the prosecuting attorney be required to elect on which count he would proceed was denied. At the close of proofs, people's motion to dismiss the second count was granted. The jury returned a verdict of guilty as charged in the first count. Defendant appeals.

The offenses charged in the two counts spring out of substantially the same transactions and the same proofs would tend to establish both. Defendant points to no proofs received which were material only to the second count and not to the first, on which defendant was convicted. That the second count was not dismissed until the conclusion of people's proofs did not constitute error. People v. Lahey, 256 Mich. 250, 239 N.W. 254; People v. Rose, 268 Mich. 529, 256 N.W. 536; People v. Bommarito, 309 Mich 139, 14 N.W.2d 812.

The people called as witnesses persons connected with the transactions which resulted in defendant receiving bribes. Upon being examined, they proved to be very unwilling, reluctant and forgetful witnesses, professing not to know or remember things which they readily remembered as soon as they were confronted with questions and answers made by them in written statements given by them to the prosecuting attorney some time before trial. Such use of written statements, to refresh memories of reluctant witnesses for the people, does not amount to their impeachment, as defendant claims, and is permissible practice. People v. O'Neill, 107 Mich. 556, 65 N.W. 540; People v. Prevost, 219 Mich. 233, 189 N.W. 92; People v. Hallas, 257 Mich. 127, 241 N.W. 193.

There was no error in permitting testimony concerning serveral distinct transactions of the character charged against defendant inasmuch as the information charged a continuing offense of soliciting and accepting bribes as reward for misfeasance in the service of his employer during a period extending from October 1, 1947, to April 1, 1948. Evidence of separate rate and distinct acts and transactions tending to establish the continuing offense charged to have been committed by defendant during that period was admissible. People v. Elmer, 109 Mich. 493, 67 N.W. 550.

Defendant claimed error in admission of testimony concerning conversations and transactions between persons claimed to have furnished the bribes and one whom it was claimed acted as a gobetween in the bribery transactions between them and defendant. The testimony, material to the claim of bribery as charged, was admissible despite the fact that it related to conversations and transactions which occurred out of the presence and hearing of defendant for the reason that they pertained to one common, unlawful enterprise in which the defendant, the go- between and the bribe furnishers were all engaged. People v. Ewald, 302 Mich. 31, 4 N.W.2d 456. 'The general rule is well settled that, where several persons are engaged in one common unlawful enterprise, whatever is said or done by any one of them in the prosecution of the common enterprise, or while it is still in progress, is evidence against all the parties to it.' People v. Pitcher, 15 Mich. 397.

Defendant was not entitled to a directed verdict of not guilty on the ground that the proofs failed to show that defendant's employer, the city of Detroit, was injured by defendant's course of conduct. The statute under which defendant was prosecuted constitutes it an offense for an employee to accept a bribe with the 'understanding' that 'he shall act in any particular manner in relation to his principal's, employer's or master's business.' The proofs show that defendant did so. The statute does not make injury to the employer a necessary element of the offense.

Defendant contends that the act under which he was prosecuted is unconstitutional because it provides that no person shall be excused from testifying concerning violations of the act on the ground that his testimony might tend to criminate him and grants immunity from prosecution in relation to any transaction...