People v. Rabin

• Decision Date: 17 April 1947
• Docket Number: No. 82.,82.
• Citation: 27 N.W.2d 126,317 Mich. 654
• Parties: PEOPLE v. RABIN.
• Court: Michigan Supreme Court

317 Mich. 654

27 N.W.2d 126

PEOPLE

v.RABIN.

No. 82.

Supreme Court of Michigan.

April 17, 1947.

Appeal from Recorder's Court of Detroit; W. McKay Skillman, judge.

Samuel H. Rabin was convicted of arson, and he appeals.

Judgment affirmed.

Before the Entire Bench, except DETHMERS, J.

Walter M. Nelson, of Detroit (George Stone, of Detroit, of counsel), for defendant and appellant.

Foss O. Eldred, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Gerald K, O'Brien, Pros. Atty., and Michael A. Guest, Asst. Pros. Atty., both of Detroit, for the People.

REID, Justice.

Defendant was convicted on December 13, 1943, under four counts of an information charging him in different forms with the offense of arson. Defendant appeals from sentences imposed on December 20, 1943, under all four counts, the four sentences running concurrently. In all four counts the offense is alleged to have occurred on October 16, 1938, at the city of Detroit. Where we use the word defendant in this case, it refers to appellant Rabin; appellant's codefendant Klein, though convicted, did not appeal.

It appears that defendant and his wife were the owners of a building located at 8532-8534 West Jefferson avenue, the lower part of the building being a store and the upper part being occupied as a dwelling or flat by defendant and his family. There was an entrance from inside the store to the upstairs portion of the building and there was also a separate front entrance from the street to a stairway leading to the upper flat which was defendant's residence.

Count 1 charged defendant Rabin and John Doe alias Jack Klein with burning a certain occupied dwelling house. Count 2 (which was withdrawn on motion of the prosecution) charged that defendants burned a certain building within the curtilage of an occupied dwelling house, to-wit, a store building. Count 3 charged that defendants burned a store building, ‘said building not being then and there a dwelling house or a building within the curtilage of a dwelling house.’ Count 4 charged that the defendantsburned certain personal property, with intent to injure and defraud the insurers. Count 5 charged that defendants burned a dertain building, with intent to injure and defraud the insurer.

The fire took place on October 16, 1938, a Sunday, at about 6:19 p. m., when the Rabin family were absent from the building on an outing. At defendant's trial, one of defendant's immediate neighbors testified that at 6:15 p. m. on that day she was across the street from defendant's building, facing the alley side of the building and that she saw Slew (the man who later admitted that he ignited the fire) come out of the building twice, and that just before he came out the second time she heard an explosion and then saw Slew run out of the building. After the explosion smoke came out of the windows and immediately thereafter there were flames all over the building. Several firemen and policemen testified in considerable detail as to the nature and extent of the fire. The front end of the store and windows were burned out and the rear roof burned out; the fire burned 3 or 4 hours and firemen were there most of the night. A member of the fire department stated that he detected the odor of gasoline in the ruins of the fire.

At defendant's trial Slew testified that he was apprehended the evening of th fire by two policemen, that he and Rubenstein, together with Klein, did set the fire, that he was tried for and found guilty of arson and was sentenced to from 5 to 20 years, of which sentence he served 4 years and 5 months, and that he was released on April 9, 1943. Slew further testified that during his own trial he had not mentioned defendant Rabin's complicity in the crime, and upon his release he asked Rabin for money, whereupon Rabin caused him to be taken into custody for attempted extortion. Slew later implicated defendant Rabin and at defendant's trial went into considerable detail about negotiations for the making of the fire, from the spring of 1938 to the day before the fire, which negotiations involved Louis Leebove as intermediary, and also Hyman Rubenstein, who helped in making physical preparations for the fire; Slew also testified in detail about payments by Rabin to Leebove for Slew, and payments by Rabin to Rubenstein, and about Rabin's agreements to pay money in consideration for the arson in question.

Leebove and Rubenstein also testified at defendant Rabin's trial that they took part in the arson, and implicated Rabin. Leebove testified that in 1937 he was talking with Rabin and the latter said to him, ‘Maybe you know somebody who would make a fire for me in this store,’ and that in August 1938, Rabin made arrangements whereby Leebove received $200 in an envelope to be given by Leebove to Slew and that Rabin told Leebove that he made arrangements that there would be a fire, and further that the Saturday before the fire Leebove by prearrangement picked up $500 from Rabin and delivered it to Rubenstein. Rubenstein testified in considerable detail about preparations for the fire, for which 175 or 200 pounds of paper were spread on the floor and Rubenstein was to pour the gasoline, and testified about the agreements for money payments in consideration for the commission of the offense, involving defendant Rabin.

It will thus be seen that all three of the witnesses, Slew, Leebove and Rubenstein, testified to conversations in which Rabin made arrangements for financial consideration for the setting fire to his building. It was for the jury to say whether their testimony, coupled with other testimony showing the actual physical preparations for the fire and actual setting of the fire, established defendant's guilt.

Defendant raises several questions concerning the regularity of his trial and conviction. The first question involved is that the information charged defendants with burning the building, but that the testimony showed that defendant Rabin had no part in the actual burning or in the actual physical preparations immediately preceding the burning. Defendant claims, in other words, that because at best the testimony against him would only show that he hired or procured others to do the burning, he cannot be held guilty of arson. Defendant cites Meister v. People, 31 Mich. 99, in support of this contention. However, Act No. 328, § 71, Pub.Acts 1931, Stat.Ann. § 28.266, enacted since that decision, defines the meaning of the word ‘burn’ as follows:

‘The term ‘burn’ as used in this chapter shall mean setting fire to, or doing any act which results in the starting of a fire, or aiding, counseling, inducing, persuading or procuring another to do such act or acts.'

The rule as to accessory and principal therefore governs the information in the instant case. By reason of the change in the statute, the rule in Meister v. People, supra, does not sustain the contention of defendant above stated.

Under his second question defendant Rabin asserts that it was not proper to try him jointly with Klein after counts 4 and 5 were dismissed as to Klein. During the taking of testimony it appeared that defendant Klein participated in some of the preparations for the fire with knowledge of the purpose of the perpetrators to commit arson but for want of sufficient proof to show that defendant Klein knew that the contents of the building and the building itself were insured, on motion of the prosecutor the court dismissed counts 4 and 5 as to defendant Klein. The statute, 3 Comp.Laws 1929, § 17298, Stat.Ann. § 28.1028, permits a joint trial in the discretion of the court. In view of all the circumstances of this case, we consider there was no abuse of discretion on the part of the trial judge in requiring Rabin, who knew of the insurance, to remain on trial as to counts 4 and 5 after the dismissal of those counts as to defendant Klein. Klein.

Under his third question involved, defendant claims that prejudicial error resulted from the court's ruling that the prosecution should not be required to elect between counts 1 and 3, and between counts 4 and 5, count 1 alleging the building to be a dwelling house and count 3 alleging it to be a store building. It is to be noted that the offense in both count 1 and count 3 pertained to the same matter, setting fire to the premises, part of which was a dwelling and part of which was a store. Defendant claims that the interior connection from the store to the dwelling, the flat overhead, characterized the whole building as a dwelling.

‘Where there are two counts charging different grades of the same offense, under a conviction or plea of guilty, it has been the general practice in England and in this country to pass judgment according to the count charging the highest grade of offense.’ People v. Morris, 80 Mich. 634, 636, 45 N.W. 591,8 L.R.A. 685.

‘It would seem that, even assuming there is some merit to defendant's contentions, he was not injured by the alleged error in joinder, inasmuch as a verdict of guilty was returned on all three counts and identical sentences imposed for each count, to run concurrently.’ People v. Kolowich, 262 Mich. 137, 148, 247 N.W. 133, 137.

‘With regard to the claimed error in sentencing defendant on two counts, based upon the same act, we find no error. Although she was sentenced on each count, the sentences were for the same period of imprisonment and were to run concurrently. It is held that when a defendant is convicted on several indictments tried at the same time and is sentenced on each to run concurrently, the judgment will not be reversed because the evidence was insufficient to support one indictment, since the sentence is, in fact, but a single sentence and is supported by the conviction on the other indictments.’ People v. People v. Podsiad, 295 Mich. 541, 545, 295 N.W. 257, 258.

There was no error on the part of the court in not requiring the prosecution to elect as between counts 1 and 3. As to the election between...