People v. Reigel

• Decision Date: 25 April 1899
• Citation: 78 N.W. 1017,120 Mich. 78
• Court: Michigan Supreme Court
• Parties: PEOPLE v. REIGEL.

78 N.W. 1017

120 Mich. 78

PEOPLE v. REIGEL.

Supreme Court of Michigan

April 25, 1899

Exceptions from circuit court, Bay county; Andrew C. Maxwell, Judge.

Michael Reigel was convicted of embezzlement, and he appeals. Reversed, and defendant discharged.

Isaac A. Gilbert, Pros. Atty., for the People.

T. F Shepard (J. E. Simonson and John C. Weadock, of counsel), for defendant.

HOOKER J.

The defendant was convicted of the offense of embezzlement, upon the following state of facts: He was treasurer of Bay county having been elected in 1894. At its October, 1894, session the board of supervisors adopted the report of its committee on ways and means, which, so far as applicable to this case, was as follows: "To the Honorable Board of Supervisors of Bay County-Gentlemen: Your committee on ways and means, to whom was referred the matter of salaries of the county officers, have had the same under consideration, and would recommend that the salaries of the various county officers be as follows for the next two ensuing years: For county treasurer, $3,800, and collection fees on liquor and other taxes." Acting in conformity to this resolution, the defendant drew from the treasury the sum of $3,800 yearly, and at the end of each year of his term drew the collection charges, the same being audited and allowed by the board of supervisors. Orders were drawn by the county clerk for the amounts. The prosecution rested upon the claim that he was not entitled to the collection charges under the law, and that, as he was bound to know the law, his act necessarily constituted embezzlement. At the March, 1898, term, of the circuit court, the following order was made and entered in the journal: "At a general term of the circuit court for the county of Bay, commenced and held at the court house in Bay City, said county, on Monday, March 7th, A. D. 1898. Present: Hon. A. C. Maxwell, circuit judge. Court opened for business in due form. In the matter of drawing and summoning a grand jury. No grand jury having been drawn and summoned for the present term of this court, and it appearing to the court that there is reason for the summoning of a grand jury, thereupon it is ordered that a grand jury be drawn and summoned forthwith, such jurors to be drawn from the cities of Bay City and West Bay City, and the townships of Bangor, Frankenlust, Hampton, Kawkawlin, Merritt, Monitor, and Portsmouth. Thereupon court adjourned until Wednesday, March 9th, A. D. 1898, at 8:30 a. m. Read, approved, and signed in open court. A. C. Maxwell, Circuit Judge." A grand jury was drawn in conformity to such order, summoned, and impaneled, and the indictment upon which the conviction was had was found. Upon his arrest, the defendant, through counsel, moved to quash the indictment upon the ground that the grand jury was not legally constituted, for the reason that it was not drawn under a written order, signed and filed in conformity to 2 How. Ann. St. � 7578, which reads as follows: "Whenever, for any cause, grand or petit jurors shall not have been drawn and summoned to attend any circuit court, or a sufficient number of qualified jurors shall fail to appear, such court may, in its discretion, order a sufficient number of grand or petit jurors, or both, to be forthwith drawn and summoned to attend such court: provided, that in drawing jurors under this section the court may, for the purpose of obtaining a jury or talesman near the county seat, direct from which township or supervisor districts such jurors shall be drawn;" and for the further reason that said jury was not drawn from the whole county. This motion was by stipulation to be given the effect of a plea in abatement, should that be held the necessary practice. The court denied the motion, and proceeded to try the defendant.

The evidence showed that the collection charges consisted of the 4 per cent. collection fee provided by statute. The court held that "the effect of this resolution was to fix the salary of the treasurer at $3,800 and the collection fees of liquor taxes which were given to treasurers by statute, and that it was void as to the 4 per cent. collection fees on taxes collected," and directed the jury to find a verdict of guilty. The defendant has brought error. The questions discussed rest upon the following propositions, asserted upon the defendant's behalf: (1) The indictment should have been quashed; (2) the court erred in directing a conviction because the resolution was valid, and gave the defendant the right to receive the sums taken; (3) that, in any event, the court should have submitted the question of criminal intent to the jury.

In 1853 the common practice of indicting, through a grand jury, was superseded by that of filing informations (2 How. Ann. St. c. 334); and, by section 9554, the grand jury was dispensed with, except in cases where specially ordered. It is contended that this section should be held mandatory, and strictly construed, in connection with section 7562, which provides for the drawing of grand juries by the clerk at least 14 days before term. It is said that the effect of these sections is to require the written order of the judge to be filed at least 14 days before term. Section 7562 was originally designed to prescribe the method of drawing juries when they were a regular appendage of the court, and its substance will be found in Rev. St. 1846, p. 464. Section 9554 appears to have been required to prevent the continuance of the former practice of drawing and impaneling grand juries, under chapter 263 of which 7562 is a section. We are not satisfied that it was intended to limit the power of the court in relation to the calling of grand juries during term, but rather to extend it by permitting the judge at chambers to make an order for a grand jury if he should think a grand jury necessary, that it might be seasonably drawn, in the usual way, which, under the former practice, required no order. Such a construction of these statutes as is urged upon us would disregard section 7578, which was an old statute (see Rev. St. 1846, p. 466, � 32), and one that is inconsistent with the claim that the circuit court, when in session, cannot order a grand jury for that term. The last-mentioned section, as it stood when section 9554 was passed, conferred such power upon the court, in case a grand jury had not been drawn or summoned, and it was deliberately re-enacted, with amendments, subsequent to the passage of section 9554, without attempting to correct the incongruity which the construction contended for suggests. We see no necessity for such construction, and think it would be against public interest, and contrary to the uniform practice that has prevailed under section 7578. The order in this case was a formal court order, and it is over the signature of the judge, and therefore a substantial compliance with section 9554, if that section should be considered applicable to orders made in court, which we do not decide. The order, in this instance, specified the townships from which the grand jurors were to be summoned, as provided in section 7578, and they were summoned from seven townships only. The constitutionality of this statute is not attacked, but it is urged that the theory of the law has always been to draw the grand jury from the "body of the county," in the first instance, and that talesmen or jurors to complete a panel, or supply a deficiency merely, have been permitted to be taken from a particular township or city, and that we should limit the application of this statute to cases where a jury has been drawn, or at least ordered, and not summoned, or some of the jurors have failed to appear. The act is broad in its terms, and seems to cover any and all cases where, for any cause, such jury shall not have been summoned. In a case where a jury has been regularly drawn, but not summoned, the consequences of an order similar to that complained of would be as serious as though no jury had been drawn, yet such a case would unquestionably be within the statute. Why, then, should we place a strained construction upon it? It is true that the laws have attempted to accomplish an equal distribution of jury duty throughout the county, but such distribution is not a matter upon which the validity of the proceedings depends. There is nothing in our constitution to prohibit the legislature from regulating the practice by grand jury, any more than that by complaint and examination by a magistrate. Jeopardy does not begin until the accused is put upon trial before a petit jury. It was therefore within the power of the legislature to provide that a grand jury might be summoned from any portion of the county, either in case of emergency or in the first instance.

Sections 9496 and 9497 of Howell's Annotated Statutes are copied from the statute of New York. They are as follows:

"Sec. 9496. A person held to answer to any criminal charge, may object to the competency of any one summoned to serve as a grand juror, on the ground that he is the prosecutor or complainant upon any charge against such person; and if such objection be established, the person so summoned shall be set aside.

"Sec. 9497. No challenge to the array of grand jurors, or to any person summoned as a grand juror, shall be allowed in any other case than that specified in the preceding section."

If at the common law the accused had the right to challenge a grand jury, or the array, in proper cases (which seems to be doubted in People v. Lauder, 82 Mich. 138, 46 N.W 956), our statute has forbidden this, except upon certain specified grounds, and it would seem to follow that an objection which would not support a challenge...