People v. Petro

• Decision Date: 01 June 1954
• Docket Number: No. 75,75
• Citation: 342 Mich. 299,70 N.W.2d 69
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Julius A. PETRO and Albert S. Wright, Defendants and Appellants. ,
• Court: Michigan Supreme Court

Page 69

70 N.W.2d 69

342 Mich. 299

The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Julius A. PETRO and Albert S. Wright, Defendants and Appellants.

No. 75, June Term, 1954.

Supreme Court of Michigan.

April 14, 1955.

Joseph W. Louisell, Detroit, for appellants.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Lansing, Gerald K. O'Brien, Pros. Atty., Ralph Garber, Chief Asst. Pros. Atty., Samuel Brezner and Samuel J. Torina, Asst. Pros. Attys., Detroit, for the People.

Before the Entire Bench.

SHARPE, Justice.

I am not in accord with the reasons stated by Mr. Justice Reid in affirming the convictions, nor the result arrived at. He bases affirmance upon the following:

'The statement by defendant Wright that he 'was driving the Cadillac for about three weeks off and on, and that no one else drives the car except him,' indicates that Wright had knowledge of the concealed compartment and of the presence of the pistols therein. The presence of the discovered pistols evidenced the actual unlawful purpose of the defendants in driving around together in the car in question.

'Defendant Petro's close companionship with Wright, his driving or being present in the car the night before his arrest, and his presence in it on other occasions before his arrest, his evident familiarity with the then present use of the Cadillac and his companionship with the men who were in the actual use of the car and living in the same apartment, all point to his knowledge of presence of the pistols.'

It should be noted that at the close of the People's case defendants' attorney made a motion for a directed verdict as to both defendants. The trial court denied the motion and gave the following as his reasons:

'I think it is (a) question of fact. First, there is testimony showing, I am not saying the testimony is true, I am merely saying what the testimony is, to the effect two men were definitely seen in the car on a previous occasion, at least one, I believe Russo, and the testimony was a man who looked like Russo, not positive identification, had been seen in the car previously. * * * That Russo, the testimony is, Russo was in the back seat and had been there for a while; Wright was stepping in behind the driver's seat, and also the other defendant was getting in the other side; that their foot was in and (they were) about to sit down or were sitting down, entering the car and upon reaching the car Wright had a key to the car; also the testimony shows the three defendants had been in the possession of the car the day before and night before.'

Citation of authority is unnecessary to establish the principle that the defendant in a criminal case is presumed to be innocent, and that in order to convict him of the crime charged it must be shown by proper evidence that his guilt is established beyond a reasonable doubt. In my opinion there was insufficient evidence to establish a question of fact as to the guilt of defendants.

The statute under which defendants were convicted contains no statutory presumption as to knowledge that the guns were present in the automobile involved, nor can we presume that the legislature meant to imply a statutory presumption of knowledge of possession of firearms. Whenever the legislature desired to create a statutory presumption, it did so by using specific language. See C.L.1948, § 750.535, Stat.Ann. § 28.803, which creates an evidentiary presumption that a dealer in personal property who fails to make reasonable inquiry that the person selling or delivering any stolen property to him has a legal right to do so, shall be presumed to have received such property knowing it to have been stolen. Also see People v. Smith, 234 Mich. 503, 208 N.W. 674.

C.L.1948, § 750.230, Stat.Ann. § 28.427, creates a presumption that one in possession of a pistol from which the mark of identity has been altered shall be presumed to be the party who altered the identification marks. It follows that under the statute by which defendants were convicted, there is no presumption that defendants knew the guns were in the hidden compartment of the automobile. In considering other types of convictions in criminal cases, the accused must have had knowledge that he was committing the act which constituted the crime in order for the accused to be convicted. See People v. Norton, 243 Mich. 559, 220 N.W. 709.

Prior to 1936 the State of New York had no statutory presumption of possession of firearms. In 1912 the New York Court of Appeals held that in order to be convicted of illegally carrying a gun on one's person, one must knowingly and voluntarily carry the gun. People v. Persce, 204 N.Y. 397, 97 N.E 877; People v. Andreacchi, 221 App.Div. 136, 222 N.Y.S. 610.

In People ex rel. De Feo v. Warden of City Prison, 136 Misc. 836, 241 N.Y.S. 63, the police officers found a revolver under the driver's seat in the automobile in which the defendants were occupying the rear seat. In reversing a conviction of the defendants for violating the New York statute, which provides that one must 'possess' a weapon to be convicted, the court said:

'* * * I am compelled, therefore, [by People v. Persce, 204 N.Y. 397 (97 N.E. 877); People v. Andreacchi, 221 App.Div. 136 (222 N.Y.S. 610); People v. Kevlon, 221 App.Div. 224 (222 N.Y.S. 311)], to discharge the relators. This, and similar cases, establishes the urgent need for legislation making the presence of a forbidden firearm in an automobile or other vehicle presumptive evidence of its possession by all the occupants thereof. Such an amendment would require the occupants of an automobile to explain the presence of the firearm and enable the court to fix the criminal responsibility for its possession.'

The facts involved in People v. Andreacchi and People ex rel. De Feo v. Warden of City Prison, supra, are similar to the facts in the case at bar. The New York statute, as of that date, like our Michigan statute, contained no statutory presumption as to knowledge that the guns were present in the automobile involved.

We have consistently held that presumptions or inferences cannot rest upon other presumptions or inferences. In Ginsberg v. Burroughs Adding Machine Co., 204 Mich. 130, 137, 170 N.W. 15, 18, we said:

'* * * It is the province of the board to draw the legitimate inferences from the established facts and to weigh the probabilities from such established facts. Wilson v. Phoenix Furniture Co., 201 Mich. 531, 167 N.W. 839. But the inferences drawn must be from established facts; inference may not be built upon inference, possibilities upon possibilities, or inferences drawn contrary to the established facts, contrary to the undisputed evidence.'

Also see Glenn v. McDonald Dairy Co., 270 Mich. 346, 259 N.W. 288; Shaw v. General Motors Corp., 320 Mich. 338, 31 N.W.2d 75; Nightlinger v. Giant Super Market, 334 Mich. 90, 53 N.W.2d 602. While the above cited cases are civil cases, yet, in my opinion, the above rule should be more strictly adhered to in criminal cases.

In the case at bar, in order for the jury to find defendants guilty, the jury had to believe the evidence that defendants had been seen at least once prior to April 30, 1951, in the automobile. From this fact the jury had to infer that the defendants, who were not the owners of the automobile, knew of the hidden compartment behind the dashboard clock, and from this inference the jury had to infer that defendants knew that the guns were in this compartment on April 30, 1951.

It is the duty of courts to reverse criminal convictions based upon an inference upon an inference in the absence of a statutory presumption. My brother relies on People v. Moceri, 294 Mich. 483, 293 N.W. 727, to affirm the conviction. In that case the police officers found a revolver on the floor of the automobile occupied by the defendant. That was an established fact. There was an inference from such fact that defendant had knowledge of the presence of the revolver.

There is no evidence in this case that either of the defendants, on the day in question, operated the automobile. The physical question of fact involved relates only to the occupation of the automobile.

The above Moceri case is authority for the principle that an inference may be drawn from established facts, but is no authority to sustain a false principle that inference may be built upon inference. The Moceri case brings no comfort to the People in order to sustain conviction in the case at bar.

While it may be true that the records of defendants do not inspire a favorable feeling towards them individually, yet, as a proposition affecting society and the proper administration of justice, I am constrained to hold that the convictions should be reversed without a new trial.

CARR and KELLY, JJ., concurred with SHARPE, J.

SMITH and DETHMERS, JJ., concurred in result.

REID, Justice (dissenting).

Defendants together with one Joseph Russo were tried on an information which charged that 'on the 30th day of April, A.D.1951,' they then and there carried three guns 'in a certain vehicle operated or occupied' by them, etc.,...