People v. Parm

• Decision Date: 24 December 1968
• Docket Number: Docket No. 3965,No. 3,3
• Citation: 15 Mich.App. 303,166 N.W.2d 536
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arnold Claude PARM, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 536

166 N.W.2d 536

15 Mich.App. 303

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arnold Claude PARM, Defendant-Appellant.

Docket No. 3965.

Court of Appeals of Michigan, Division No. 3.

Dec. 24, 1968.

Released for Publication April 11, 1969.

Laurence E. Howard, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, James K. Miller, Pros. Atty. Kent County, Grand Rapids, for plaintiff-appellee.

Before LESINSKI, C.J., and FITZGERALD and TEMPLIN, ^* JJ.

TEMPLIN, Judge.

On February 26, 1965, the defendant was sentenced to a term of three to fourteen years after a plea of guilty to the charge of uttering and publishing a forged instrument in violation of C.L. 1948, 750.249 (Stat.Ann. 1962 Rev. § 28.446). Upon motion the plea of guilty was set aside with a remand of proceedings to the Grand Rapids municipal court for preliminary examination. Subsequent trial of the cause resulted in a jury verdict of guilty as charged on April 20, 1967. The court then forthwith sentenced the defendant to from four to fourteen years in prison. It is from this conviction and sentence that defendant now appeals alleging some nine separate grounds for reversal.

Defendant's first assignment of error is that the municipal court committed reversible error after the preliminary examination by binding the case over for trial in the circuit court. We find defendant's contention here groundless. A review of the preliminary examination transcript reveals substantial testimony establishing that the crime in question was committed and probable cause that the defendant committed it. Except in case of a clear abuse of discretion, this court will not interfere with the findings of the examining magistrate. People v. Hirschfield (1935), 271 Mich. 20, 260 N.W. 106. Also see People v. Delaney (1962), 367 Mich. 694, 117 N.W.2d 176.

Defendant next objects to admission during the trial of People's Exhibit No. 1, the allegedly forged check, on the basis that it was not properly identified and, in any event, was hearsay. The complaining witness testified that the check, made out to himself, was endorsed by someone other then himself writing his name, misspelling it in the process. To show uttering of a forged instrument, any competent evidence tending to prove the uttering is admissible. 37 C.J.S. Forgery § 85, p. 95. Also see 37 C.J.S. Forgery, § 81, p. 93. We find the hearsay rule clearly not applicable, the exhibit being offered merely to show that such a check was made, not to prove the truth of any matter asserted therein.

Defendant again raises the hearsay rule in his objection to the admission of People's Exhibit No. 2, a checking account signature card, under the statutory business entries exclusion to the rule. C.L.S. 1961, § 600.2146 (Stat.Ann. 1962 Rev. § 27 A.2146). Defendant bases his contention in this regard that the business records exception to the rule does not apply to criminal cases under the holding of People v. Lewis (1940), 294 Mich. 684, 293 N.W. 907. In that case, involving a prosecution for practicing medicine without a license, the hospital record produced in court by the record clerk tended to directly prove the charge against the defendant as to his treatment of a pregnant woman at the hospital and as such, without the benefit of cross-examination, the record was indeed damaging and highly prejudicial. We find, however, a clear distinction between the factual situation of the Lewis case and that of the instant cause. The contested Exhibit No. 2, a bank signature card, indicated those officials whose signatures were necessary for issuance of valid checks on the American Motors account. Such evidence was merely preliminary and in no way tended to implicate the defendant in the crime as charged. In addition, the check in question was properly identified by other witnesses as to other characteristics apart from the signature of the drawer. Under the holding of Lewis we find that admission of the signature card as a business record exception to the hearsay rule was technically error, but that such error was not of a prejudicial nature constituting grounds for reversal.

Defendant next attacks the admission of testimony implicating the defendant in another crime, I.e. testimony of two police officers on stakeout that they observed the defendant approximately a month and a half after the alleged crime opening the mailbox of the complainant. We find that such testimony comes within the clear purview of the statute allowing proof of other acts or crimes in proving the defendant's scheme, plan or system in doing an act. C.L. 1948, § 768.27 (Stat.Ann. 1954 Rev. § 28.1050). Michigan has allowed evidence implicating the defendant in other crimes in a number of forgery and uttering cases to show intent, a lack of mistake, or plan, or scheme. Carver v. People (1878), 39 Mich. 786; People v. Golner (1944), 308 Mich. 351, 13 N.W.2d 846. The complainant herein had testified to the absence from his mailbox of his pay check mailed weekly thus prompting...