People v. Omacht, 66

• Decision Date: 27 June 1950
• Docket Number: No. 66,66
• Citation: 43 N.W.2d 305,328 Mich. 145
• Parties: PEOPLE v. OMACHT.
• Court: Michigan Supreme Court

Page 305

43 N.W.2d 305

328 Mich. 145

PEOPLE v. OMACHT.

No. 66.

Supreme Court of Michigan.

June 27, 1950.

James E. Haggerty, Detroit, Hugh V. Williams, Detroit, of counsel, attorney for defendant and appellant.

Stephen J. Roth, Attorney General, Edmund E. Shepherd, Solicitor General, Lansing, Daniel J. O'Hara, Assistant Attorney General, Richard B. Foster, Special Assistant Prosecuting Attorney, Lansing, for plaintiff-appellee.

Before the Entire Bench, except DETHMERS, BUTZEL and CARR, JJ.

NORTH, Justice.

In People v. Omacht, 326 Mich. 505, 40 N.W.2d 704, by a divided Court, we affirmed the conviction and sentence of the defendant. The matter is again before us incident to our having granted defendant's motion for a rehearing and oral argument thereon. Mr. Justice BUSHNELL has again written for reversal, but notwithstanding his review of the trial proceedings and a recital of much of the factual aspect of the case from which inferences favorable to Omacht and other defendants might be drawn, I cannot concur in the result my brother has reached.

It seems proper to make it clear at the outset why only five of the eight members of this Court sat on the rehearing of this and the associated cases. At the opening of the oral arguments an announcement, embodied in the Court's records, was made by the Chief Justice to counsel as to the disqualification of three members of the Court, in substance as follows: Justice CARR as a grand juror heard these matters and issued the warrants therein. Justice DETHMERS, as a member of the Attorney General's department, participated as prosecutor in the proceedings before the grand juror. And Justice BUTZEL because of connection or association with one or more of the defendants in various matters and because the present firm of Butzel, Levin, Winston, etc., appeared as of counsel for one of the defendants, considered himself definitely disqualified. Under the circumstances the five sitting Justices constituted the entire bench, insofar as the members thereof were not disqualified. See CL 1948, § 601.5, Stat.Ann. § 27.25. No protest or objection to the hearing being had before five members of the Court was made by counsel for any of the appellants.

Early in his opinion Mr. Justice BUSHNELL says that the majority opinion filed earlier in the instant case appears to overrule the prevailing opinion in People v. Kolowich, 262 Mich. 137, 247 N.W. 133. I cannot agree that such a result is fairly inferable. Like the instant case, People v. Kolowich was decided by a narrowly divided Court. In each case the record must be considered as a whole in determining whether the jury's verdict can be said to be contrary to the great weight of the evidence. In that respect the record in the Kolowich case differs materially from that in the instant case, and the prevailing opinion therein should not be considered as impliedly overruled by the instant case.

There is no disposition to disagree with the law cited in Justice BUSHNELL'S opinion as to the need of precaution looking to a fair trial in conspiracy cases which involve a plurality of defendants. But we think that was accomplished in the instant case. Surely it clearly appears that the conditions and circumstances assumed in Justice BUSHNELL'S quotation from People v. Barkelow, 37 Mich. 455, cannot, with any degree of justification, be said to be present in the instant case. Herein there are no 'vague' charges made. Instead the offense charged is definite; and it is clear who and in what manner the respective appellants are charged with having violated the law. Nor do we find in the instant case resort by the prosecution to 'prejudices to induce' the jury to convict falsely accused persons. As has been noted elsewhere there were five so-called 'finance' defendants, of whom Omacht was one, and two of these five were acquitted by the jury.

On this phase of the instant case Justice BUSHNELL makes reference to Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557, and Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790. In each of these cases a conviction of an alleged conspiracy was reversed; but for reasons not applicable to the case at bar. In the first of the above cited cases reversal, as appears from a headnote, was adjudged because: 'The evidence proved eight or more different conspiracies by separate groups of defendants which had no connection with each other except that all utilized one Brown as a broker to handle fraudulent applications.'

In the Krulewitch case the headnotes disclose that evidence was admitted over defendant's objection 'concerning a statement made by the co-conspirator to the complaining witness more than six weeks after the * * * (alleged conspiracy) had been completed, which implied that petitioner was guilty * * *.' In consequence the court held: 'The hearsay declaration attributed to the co-conspirator was not admissible on the ground that it was made in furtherance of the conspiracy * * *.'

My brother dwells much upon and again urges that the receipt in evidence of Senate Bill No. 41 constituted reversible error. Further comment on this issue is not at all necessary because it was covered, and I think satisfactorily, in the prevailing opinion in People v. Hancock, 326 Mich. 471, 40 N.W.2d 689, and especially in the opinion of Chief Justice Boyles on the rehearing in People v. Cooper, Mich., 43 N.W.2d 310.

The issue of whether the verdict was against the great weight of the evidence is considered again at considerable length in Justice BUSHNELL'S opinion. But again that is an issue which has been considered and quite definitely passed upon in opinions submitted by those of the Court who hold that the verdict of the jury should be sustained. See opinions on the original hearings in People v. Omacht, supra; People v. Hancock, supra; People v. Cooper, 326 Mich. 514, 40 N.W.2d 708; and People v. Shea, 326 Mich. 526, 40 N.W.2d 713; and also the opinion submitted by Chief Justice Boyles on rehearing in People v. Cooper, handed down herewith. None-theless it may be well to note that in his present opinion my brother says that no one of the justices who has concurred in affirmance in this group of cases has 'discussed the great weight of evidence.' If in so stating the writer means that no one of such justices sought to review in detail the testimony in this record, consisting of four large printed volumes, he is quite right. But if his statement were to be construed as conveying the impression that the members of the Court who hold for affirmance have not carefully considered the contention that the verdict was against the great weight of evidence, or that they have not expressed themselves on that issue, it would be quite inaccurate. Each of the justices who participated in decision in this group of cases not only had the record and numerous briefs in the case for study and consideration, but they sat on two occasions and heard lengthy and detailed arguments of able counsel in which, as well as in their briefs, this issue was urgently stressed.

In his review of testimony favorable to Omacht and other appellants, my brother refers to the testimony of Ralph W. Smith 'that the lobbyist (Hemans) was to use his best judgment and influence the votes whichever way he could, and the substance was that, if necessary, to buy votes'; and Justice BUSHNELL states: 'Thirteen other witnesses, when questioned about this conversation, denied that it ever took place.' Doubtless through inadvertence, this latter statement is not strictly correct. At least some of the witnesses only testified in substance that they did not hear such a statement, which would seem to render the testimony of these latter witnesses of much less probative force.

It is not within the province of this Court to say that the jury did not accept the material parts of Hemans' testimony and other corroborating testimony as true, rather than that to the contrary by and in behalf of the interested 'finance' defendants who have appealed. And further the jury might well have been unable to conceive of any legitimate purpose for which the appealing 'finance' defendants provided Hemans with $7,250 as stated in Justice BUSHNELL'S opinion, or why interested finance companies contributed $8,400 to co-defendant John Hancock, who functioned as their treasurer, incident to the activities involved in this prosecution. On the record made we do not think it can be justly said that the verdict of the jury as to the guilt of defendant Omacht was not sustained by competent evidence.

The verdict of the jury and the sentence imposed in the instant case are affirmed.

BOYLES, C. J., and SHARPE, J., concurred with NORTH, J.

BUSHNELL, Justice (dissenting).

Rehearings were granted in this and the related cases because of the statutory requirement, C.L.1948, § 601.5, Stat.Ann. § 27.25, reads in part: 'Whenever there shall be filed a dissenting opinion in a case heard by a quorum of [five] (5) justices only, the parties therein shall have a right to a rehearing before the entire bench upon making a proper application therefor.'

The writer of this opinion adheres to the views he expressed in his former opinion. See People v. Omacht, 326 Mich. 505, 40 N.W.2d 704. The majority of the court, however, was of the opinion that no prejudicial error was committed by the remarks of the special prosecutor. It appears, therefore, that decision in People v. Kolowich, 262 Mich. 137, 151, 247 N.W. 133, was overruled.

This conspiracy trial originally included a number of defendants, 18 of whom were grouped as 'legislative' defendants, and five of whom were classified as 'finance' defendants. Omacht was in the latter group. The business of the several 'independent finance' companies, with which Hancock, Omacht and Cooper were associated, differed from that of the 'factory finance' companies, and from the operations of 'small loan' companies. The...