People v. Ormsby

• Decision Date: 02 January 1945
• Docket Number: No. 73.,73.
• Citation: People v. Ormsby, 310 Mich. 291, 17 N.W.2d 187 (Mich. 1945)
• Parties: PEOPLE v. ORMSBY et al.
• Court: Michigan Supreme Court

310 Mich. 291

17 N.W.2d 187

PEOPLE

v.ORMSBY et al.

No. 73.

Supreme Court of Michigan.

Jan. 2, 1945.

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

Benjamin Ormsby, Richard Rice, Alcena Gibbs, Russell Johnson and Calvin Hammond were convicted under information containing sixteen counts, of which the first fifteen each charged the common-law offense of conspiracy to violate gambling laws of the state, and the sixteenth of which charged the common-law offense of conspiracy to obstruct justice, and they appeal.

Reversed and new trial granted.

Before the Entire Bench.

Lewis, Rowlette & Brown, of Detroit (George Stone, of Detroit, of counsel), for defendants and appellants.

Herbert J. Rushton, Atty. Gen. of Michigan, Edmund E. Shepherd, Sol.Gen., of Lansing, William E. Dowling, Pros.Atty. for Wayne County, and Raymond J. De Ryck and Henrietta E. Rosenthal, Asst. Pros.Atty., all of Detroit, for the people.

STARR, Chief Justice.

On jury trial defendantsBenjamin Ormsby, Richard Rice, Alcena Gibbs, Russell Johnson and Calvin Hammond were convicted under an information containing 16 counts, of which the first 15 each charged the common-law offense of a conspiracy to violate certain gambling laws of the State,¹ and the 16th of which charged the common-law offense of a conspiracy to obstruct justice.Their motion for a new trial was denied and they were sentenced as follows: Gibbs, 3 years probation; Johnson and Hammond, each 1 to 5 years; Ormsby and Rice, each 2 to 5 years.Having obtained leave, they appeal.One Marion Jones, who was named in the information, was ill and the trial had proceeded without her.At the conclusion of the plaintiff's proofs one Anna Gardner, who was also named in the information, was discharged on motion of the prosecution.

It appears that on August 30, 1941, police officers went to an apartment at 417 Adelaide street, Detroit, on a complaint that gambling operations were being conducted there.They rapped on the door and it was opened by one Savoy, who occupied the apartment and who said that he subrented the front room.The officers saw some one operating an adding machine in the front room and also saw mutuel betting tickets lying on a couch.They entered peaceably, seized considerable gambling paraphernalia and arrested Savoy, defendants Gibbs and Johnson, and also coconspirator Jones.It is admitted that such arrests and seizure of gambling paraphernalia were made without warrants.Said arrested persons were first brought to trial in recorder's court for the city of Detroit on a charge of possessing gambling equipment.On their motion the evidence, consisting of the gambling paraphernalia, was suppressed on the ground that the search and seizure were illegal, and they were all discharged.

On September 12, 1941, police officers went to 610 Elizabeth street, Detroit, to arrest one John Skyles for conspiracy to violate the gambling laws.They rapped on the door, and it was opened by one Tucker who lived there.They entered peaceably and saw certain gambling paraphernalia.They seized such paraphernalia and arrested Skyles, defendants Hammond, Johnson and Gibbs, and coconspirator Gardner, all of whom were on the premises.It is admitted that they made such arrests and seizure of gambling equipment without warrants.

On September 16, 1941, complaint was filed and warrant was issued in the present case.At the preliminary hearing evidence was presented showing probable cause, and defendants and also Jones and Gardner were held for trial.The gambling paraphernalia seized in the raids on Adelaide and Elizabeth streets was properly admissible in evidence.3 Comp.Laws 1929, § 17320,Stat.Ann. § 28.1050;People v. McElheny, 221 Mich. 50, 190 N.W. 713;People v. Rice, 206 Mich. 644, 173 N.W. 495;People v. Swift, 172 Mich. 473, 138 N.W. 662.An information was filed charging defendants and also Jones and Gardner with conspiracies to violate the gambling laws and also with a conspiracy to obstruct justice.Their motion to quash the information, on the ground that their arrests and the search and seizure of gambling paraphernalia at 417 Adelaide street and 610 Elizabeth street were illegal, was properly denied by the trial court.The evidence clearly indicates that the officers were admitted peaceably, that they saw gambling paraphernalia in the possession of defendants, and that such raided premises were used for the conducting of gambling operations.In People v. Bommarito, 309 Mich. 139, 144, 14 N.W.2d 812, 814, we said: ‘It is true that the arrests were made without a warrant but any peace officer may arrest without a warrant ‘when he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed it.’3 Comp.Laws 1929, § 17149[as amended byAct No. 84, Pub.Acts 1935, Comp.Laws Supp.1940, § 17149], (Stat.Ann. § 28.–874).The officer entered the open store and was admitted peaceably to the back room.There he saw gambling paraphernalia in the illegal possession of Bommarito and Lacy.This created a reasonable and honest belief that a felony had been committed, viz., a conspiracy to violate the gambling law.Their arrest without a warrant was justified and the seizure of the illegal property was proper and, as such, was admissible against all of the conspirators.People v. Harter, 244 Mich. 346, 221 N.W. 302.'See, also, People v. Harris, 300 Mich. 463, 2 N.W.2d 464;People v. Cona, 180 Mich. 641, 147 N.W. 525.

Defendants did not take the stand in their own defense, and in view of our conclusions it is unnecessary to discuss in detail the testimony presented by plaintiff.The case was submitted on the 16 counts charged in the information, and the jury returned a verdict of ‘guilty as charged.’

On this appeal defendants first contend that the information did not charge a crime.This contention is based upon the premise that, because the information charged conspiracies to commit offenses for which statutory punishment was provided, the conspiracy crimes were merged in such offenses.This contention is without merit, as the alleged conspiracies to commit the crimes were offenses separate and apart from the crimes committed.In People v. Chambers, 279 Mich. 73, 77, 271 N.W. 556, 557, we said: ‘A conspiracy to commit a crime is a separate and distinct offense from the crime which it is the object of the conspiracy to commit.12 C.J. 542.’See, also, People v. Causley, 299 Mich. 340, 300 N.W.111;People v. Summers, 115 Mich. 537, 73 N.W. 818.

The alleged conspiracies were indictable offenses at common law, and as no punishment is expressly provided by statute, they come within the provisions of ActNo. 328, § 505, Pub.Acts 1931, Comp.Laws Supp.1940, § 17115–505, Stat.Ann. § 28.773, which provides: ‘Any person who shall commit any indictable offense at the common law, for the punishments of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than five years or by a fine of not more than two thousand five hundred dollars.’

Defendants next contend that the information was defective because of a misjoinder of counts.It should be noted that this contention was not raised at any time during the trial.3 Comp.Laws 1929, § 17289,Stat.Ann. § 28.1015, provides in part: ‘No indictment shall be quashed, set aside or dismissed for any one (1) or more of the following defects: (First) That there is a misjoinder of the parties accused; (Second) That there is a misjoinder of the offenses charged in the indictment, or duplicity therein.’

3 Comp.Laws 1929, § 17290,Stat.Ann. § 28.1016, provides in part: ‘No indictment shall be quashed, set aside or dismissed or motion to quash be sustained or any motion for delay of sentence for the purpose of review be granted, nor shall any conviction be set aside or reversed on account of any defect in form or substance of the indictment, unless the objection to such indictment, specifically stating the defect claimed, be made prior to the commencement of the trial or at such time thereafter as the court shall in its discretion permit.’SeePeople v. Bommarito, supra;People v. McKinney, 10 Mich. 54;Joyce on Indictments (2d Ed.)pp. 606–609, § 532;Clark on Criminal Procedure, p. 286, §§ 105,106;1 Wharton on Criminal Procedure(10th Ed.) pp. 388, 389, § 340.

As the several conspiracies are alleged to have occurred between May 1, and September 12, 1941, and are alleged to have arisen out of substantially the same transactions, we conclude there was no misjoinder of counts.Furthermore, as such claim of misjoinder was not raised during the trial, under 3 Comp. Laws 1929, § 17290, above quoted, it cannot be asserted on appeal.

A more serious question is presented by defendants' contention that the verdict of ‘guilty as charged’ was void because the 16th count charged a separate and distinct offense from those charged in the first 15 counts, and because there was no evidence establishing a conspiracy to obstruct justice, as charged in the 16th count.This question was raised by defendants' motion, made before sentence, to set aside the verdict and by their motion for a new trial.

It is, therefore, necessary to determine whether or not the conspiracy to obstruct justice, as charged in the §6th count, was a separate and distinct offense from the conspiracies to violate the gambling laws, charged in the first 15 counts.Such question is answered by determining whether or not the essential elements of these common-law felonies are the same and whether or not substantially the same proof would convict of both offenses.The term, to obstruct justice, connotes an interference with the orderly administration of law.In 46 C.J.p. 868, it is stated: ‘The phrase ‘obstructing justice’ means impeding or obstructing those who seek justice in a court, or those who have duties or powers of...