People v. Peace, Docket No. 14060

• Decision Date: 27 June 1973
• Docket Number: Docket No. 14060,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank PEACE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 116

210 N.W.2d 116

48 Mich.App. 79

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank PEACE, Defendant-Appellant.

Docket No. 14060.

Court of Appeals of Michigan, Division No. 3.

June 27, 1973.

Released for Publication Sept. 10, 1973.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Michael J. Houlihan, Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and T. M. BURNS and PETERSON, ^* JJ.

T. M. BURNS, Judge.

The defendant was convicted by a jury of uttering and publishing pursuant to M.C.L.A. § 750.249; M.S.A. § 28.446. He was sentenced to a term of from 3 to 14 years imprisonment and appeals.

At trial the evidence revealed that in August of 1970 a man cashed a $100 Travelers Express money order at a party store in Traverse City, Michigan. As the man left the store with the money, the proprietor followed him to the door and saw him get into the passenger side of a waiting automobile. The proprietor wrote the vehicle's license plate number on the back of the money order. Subsequently the money order was returned marked 'Payment Refused, Money Order Stolen'. The police were notified. A vehicle check indicated that the license plate number written on the reverse side of the money order had been issued to the defendant. In addition a state police fingerprint expert testified that he compared the defendant's fingerprint with two latent prints found on the money order and concluded that the defendant had at some time touched the money order. It should also be noted at this point that the owner of the party store could not identify the defendant as being the person who cashed the money order.

After the people had rested, defense counsel waived the opening statement and presented no proofs. Based upon the evidence presented, the jury returned a verdict of guilty. Defendant raises numerous issues on appeal which will be discussed and decided in the manner presented below.

First, defendant argues that the money order in question was a bank bill or bank note and for this reason he should have been charged with uttering and publishing a bank bill pursuant to M.C.L.A. § 750.253; M.S.A. § 28.450 which prescribes a maximum sentence of 5 years and that it was error to charge him under M.C.L.A. § 750.249; M.S.A. § 28.446 which provides a maximum penalty of 14 years for uttering and publishing other types of forged instruments. We disagree.

A bank note or bank bill is the promissory note of an incorporated bank. It is payable to the bearer on demand and it is intended to circulate as money for an indefinite period. 9 C.J.S. Banks and Banking § 185, p. 398; 10 C.J.S. Bills and Notes § 7, p. 414. The money order at issue was not the promissory note of an incorporated bank. Moreover it was payable to the order of a specified party as opposed to being payable to the bearer and was not intended to circulate as money for an indefinite period. Therefore it is patent that the money order cannot be classified as a bank note or bank bill.

Furthermore M.C.L.A. § 440.3104; M.S.A. § 19.3104 provides in pertinent part that any writing which is signed by the maker or drawer and contains an unconditional promise or order to pay a sum certain in money and is payable on demand or at a definite time and is payable to the order or to bearer is: (1) a draft (bill of exchange) if it is an order or (2) a check if drawn on a bank and payable on demand.

The money order in the case at bar was signed by an alleged drawer, it contained an unconditional order to pay a sum certain in money, I.e., $100, it was payable on demand and to the order of a specified person and since the instrument was not drawn on a bank, it is our opinion that the money order was a draft or bill of exchange. Therefore, defendant was properly charged and sentenced under the provisions of M.C.L.A. § 750.249; M.S.A. § 28.446.

Second, the defendant asserts that there is no rational relationship between the different classifications of instruments and documents described in M.C.L.A. § 750.248; M.S.A. § 28.445 and M.C.L.A. § 750.253; M.S.A. § 28.450. From this defendant argues that the disparate maximum sentences prescribed in these statutes violates the equal protection of the law. U.S. Const.Am. XIV, Const.1963 art. 1, § 2. We cannot agree.

In the comprehensive and well-reasoned opinion of People v. Brooks, 43 Mich.App. 715, 204 N.W.2d 718 (1972), this Court held that there is a rational distinction between M.C.L.A. § 750.249; M.S.A. § 28.446 which encompasses the forgery and the uttering and publishing of certain classes of documents executed by individuals and private companies and M.C.L.A. § 750.253; M.S.A. § 28.450 which deals with the forgery on the uttering and publishing of bills and notes issued by governmental units and banking companies. Thus, the court found that the differing sentences delineated by the statutes do not violate the equal protection of the law. We find Brooks decisional and likewise hold that the statutory scheme of imposing different maximum sentences for the crime of forging or uttering and publishing different classes of documents or instruments does not violate the equal protection of the law.

Third, it is the position of the defendant that the statute noted above violates due process and equal protection of the law by permitting the prosecutor to arbitrarily elect between charging an accused with either a crime providing for a fine and or a maximum of 5 years imprisonment (M.C.L.A. § 750.253; M.S.A. § 28.450) or a crime which carries a maximum of 14 years imprisonment (M.C.L.A. § 750.249; M.S.A. § 28.446).

Defendant's position is untenable. A document or instrument which has been forged or uttered and published must fall into either one or the other statutory classifications and cannot fit into both. See People v. Brooks, Supra. Therefore, the prosecutor is not at liberty to whimsically and capriciously choose between the crimes to be charged. Accordingly, we hold that there is no violation of due process or equal protection of the law under these circumstances.

Fourth, defendant alleges that the trial court erred in its instruction to the jury by permitting an innuendo to pervade the court room to the effect that defendant was a principal participant in the crime when that proposition had been withdrawn by stipulation of the parties. Defendant's claim of error is bottomed upon the following instruction:

'One of the questions for you folks to determine is whether or not under the evidence in this case the defendant was here and presented that check * * *.'

The record belies the defendant's allegation. A review of the stipulation reveals that both the prosecutor and defense counsel agreed the money order was stolen, the signature on the money order was not authorized and that the defendant did not purloin the money order. In short, the parties stipulated that the instrument was a false or forged money order. There is no indication in the stipulation that the prosecutor agreed that the extent of defendant's participation in the crime was limited to a role as an accessory to the uttering and publishing. Indeed at trial, defense counsel recognized that the defendant could be found guilty of being a principal or of aiding and abetting in the crime. This is borne out by the closing argument of defense counsel which reads:

'You as the triers of fact will be faced with the burden of being satisfied beyond a reasonable doubt that not only was a presentation (of the money order) made but that Mr. Peace (the defendant herein) was the person responsible for so...