People v. Olson, 122.

• Decision Date: 03 June 1940
• Docket Number: No. 122.,122.
• Citation: 293 Mich. 514,292 N.W. 860
• Parties: PEOPLE v. OLSON.
• Court: Michigan Supreme Court

293 Mich. 514

292 N.W. 860

PEOPLE

v.OLSON.

No. 122.

Supreme Court of Michigan.

June 3, 1940.

Ole Olson was convicted in justice court for the illegal possession of undersized fish, Comp.Laws Supp.1940, § 6320, and from a judgment of the circuit court reversing the conviction and discharging the accused, the state appeals.

Judgment of circuit court affirmed.

BUSHNELL, C. J., and SHARPE and McALLISTER, JJ., dissenting.

Appeal from Circuit Court, Newaygo County; Earl C. Pugsley, judge.

Argued before the Entire Bench.

J. Donald Murphy, Pros. Atty. for Newaygo County, of White Cloud, Thomas Read, Atty. Gen., and Edmund E. Shepherd and Kenneth G. Prettie, Asst. Attys. Gen., for appellant.

Harris E. Galpin, of Muskegon, for appellee.

POTER, Justice.

Defendant, residing in Frankfort, Benzie county, was arrested in Newaygo county. He continued to reside in Benzie county. It is claimed he shipped undersized fish over the Pere Marquette railroad and that these undersized fish were seized in Newaygo county, and defendant was thereupon arrested and prosecuted in that county although at that time he was a nonresident thereof. There is no claim he was in Newaygo county at the time.

The prosecution is based upon the theory that defendant was constructively present in Newaygo county and may, therefore, be prosecuted in that county.

After these fish were shipped by defendant he was not in Newaygo county and cannot, therefore, be prosecuted in that county upon any theory of constructive possession of the fish in Newaygo county. There is no such thing as constructive criminal cases. Defendant was entitled to a trial by a jury of the vicinage. Swart v. Kimball, 43 Mich. 443, 5 N.W. 635, 639.

‘A citizen is arrested on a criminal accusation and carried off to a distant part of the state for trial. If he is poor, and relies upon many witnesses for his exculpation, this will almost of necessity put it out of his power to make a complete defense; if he is a man of moderate means the defence may ruin him.’ Swart v. Kimball, supra.

The statute (2 Comp.Laws 1929, § 6318 [Stat.Ann. § 13.1503]), under which defendant was arrested, provides that the possession of the illegal fish shall be construed to remain in the consignor until delivered to the consignee. The common carrier is not subject to the provisions of this act. The possession remained in the consignor in Benzie county.

‘Constructive crimes-crimes built up by courts with the aid of inference, implication, and strained interpretation-are repugnant to the spirit and letter of English and American criminal law.’ Ex parte McNulty, 77 Cal. 164, 19 P. 237, 239,11 Am.St.Rep. 257.

‘We have not the slightest hesitation in declaring that the act of 1857, in so far as it undertakes to authorize a trial in some other county than that of the alleged offence, is oppressive, unwarranted by the constitution, and utterly void.’ Swart v. Kimball, supra.

‘* * * it cannot be seriously claimed that the prosecution can be had in a county where the crime was not actually or in contemplationof law perpetrated.’ Hill v. Taylor, 50 Mich. 549, 15 N.W. 899, 900.

The record is entirely barren of any evidence that the crime with which defendant was charged had been committed in Newaygo county where the trial was had. See, also, People v. Jackzo, 206 Mich. 183, 172 N.W. 557.

The crime of possession of illegal fish by defendant was not committed in Newaygo county. The trial court was not in error in holding defendant could not be prosecuted in Newaygo county but, if prosecuted at all, must be prosecuted in Benzie county.

CHANDLER, WIEST, and BUTZEL, JJ., concurred with POTTER, J.

NORTH, J., concurred in the result.

BUSHNELL, Chief Justice (dissenting).

This is an appeal from a judgment entered in the circuit court, reversing a conviction in the justice court and discharging the respondent. Section 14 of the Commercial Fishing Law (Comp.Laws Supp. 1940, § 6320, Stat.Ann. § 13.1505) makes it unlawful to market or have in possession ‘Whitefish, of a less weight than 2 pounds in the round, or 1 pound and 12 ounces when dressed.’ Section 12 of the Act (2 Comp.Laws 1929, § 6318, Stat.Ann. § 13.1503) reads in part: ‘The possession of any package or shipment of illegal fish offered to any common carrier as mentioned in section eleven (11) shall be construed to be and remain in the consignor until delivered to the consignee: * * *.’

Respondent is a commercial fisherman engaged in that business at Frankfort in Benzie county. Undersized fish shipped by him via the Pere Marquette Railroad to his consignee in Chicago were seized by a conservation officer at Newaygo in Newaygo county while in the custody of the railroad.

Respondent was arrested, brought to trial, and convicted before a justice of the peace, from whose sentence he appealed to the circuit court. There it was argued, according to the court's opinion, that conviction could not be obtained in Benzie county and the conservation officers should be permitted to select the county in which conviction would more lokely result. In condemning this argument, the court said that the respondent could thus be forced to stand trial in any county through which the shipment passed.

The trial court stated that the rule expressed in People v. Brock, 149 Mich. 464, 112 N.W. 1116,119 Am.St.Rep. 684, should be applied. In that case the court reversed conviction of a defendant who was charged...