People v. Roxborough

• Decision Date: 29 December 1943
• Docket Number: No. 82.,82.
• Citation: 307 Mich. 575,12 N.W.2d 466
• Parties: PEOPLE v. ROXBOROUGH et al.
• Court: Michigan Supreme Court

307 Mich. 575

12 N.W.2d 466

PEOPLE

v.ROXBOROUGH et al.

No. 82.

Supreme Court of Michigan.

Dec. 29, 1943.

John W. Roxborough and others were convicted of conspiring to obstruct justice, and they appeal.

Affirmed.

See, also, 12 N.W.2d 474.Appeal from Circuit Court, Wayne County; Earl C. Pugsley, judge.

Before the Entire Bench.

Lloyd A. Loomis and Lewis, Rowlette & Brown, all of Detroit, for appellant John W. Roxborough.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Detroit, and Thomas A. Kenney and Daniel J. O'Hara, Asst. Attys. Gen., for appellee.

BUSHNELL, Justice.

Defendant John W. Roxborough and others appeal from a conviction under the second count of an information which charged them with conspiracy to obstruct justice. In this opinion we shall consider only the appeal of defendant John W. Roxborough.

The chain of events leading up to the indictment, arrest, trial and conviction of Roxborough and those tried jointly with him is related in detail in People v. McCrea, 303 Mich. 213, 6 N.W.2d 489. The appeals of Wilcox; Malone; Staebler; Stambaugh, Elliott, Lansberg; Way; Scaduto, and Garska, also reported in 303 Mich. at pages 287, 297, 298, 300, 303, 307, and 313,6 N.W.2d pages 518, 521, 522, 523, 525, and 527, respectively, throw some light on the factual background. See, also, People v. Robinson, 306 Mich. 167, 10 N.W.2d 817, and People v. Millman, 306 Mich. 182, 10 N.W.2d 885.

The information filed on December 12, 1940, charged in count 1 that Roxborough and others maintained and operated ‘a certain lottery or gift enterprise for money, commonly known as ‘policy’ and/or ‘mutuel,’ ‘numbers' and ‘clearing house,” The operation of lotteries in the County of Wayne had assumed such proportions that there were many policy and mutuel houses in existence. The record shows that one of the defendants, Peter Kosiba, an operator of a mutuel house known as ‘Western Union,’ had a commercial banking account with an average monthly balance of approximately $38,000, and that the deposits in this account from March 21, 1938 to March 1, 1940 totalled $735,406.44.

The second count charged the same defendants with conspiracy among themselves and other persons not named as defendants ‘to procure the wilful, intentional and corrupt failure, omission and neglect on the part of’ certain public officials named therein ‘to perform their respective official duties as public officials of said county and city, respectively, in the enforcement of the criminal laws of the State relating to lotteries.’

The people elected to go to the jury only on the second count of the information, on which charge defendant Roxborough was convicted and sentenced to a term of 2 1/2 to 5 years. All of the questions raised on his appeal will be considered except the ones relating to venue, which are answered in the opinion rendered herewith in the case of People v. Watson, 12 N.W.2d 476.

Roxborough's first contention is that former Circuit Judge Homer Ferguson, who conducted the so-called ‘oneman’ grand jury and issued the warrant was thereby disqualified from conducting his preliminary examination. This question was considered in the McCrea case, 303 Mich. 213, 248, 6 N.W.2d 489, 502, and it was there held that former prosecutor, McCrea, was not denied due process by reason of the fact that the judge who conducted the grand jury proceedings presided at his preliminary examination, ordered him held for trial, and filed a presentment with the governor for his removal from office. We say here, as we said there, that: ‘Our attention has not been called to any act or conduct on the part of Judge Ferguson, while conducting the preliminary examination, from which prejudice or bias could be inferred. Furthermore, the law is well settled that the due-process clauses of the Federal and State Constitutions do not require a preliminary examination in criminal proceedings.’ See authorities therein cited.

The next question propounded by appellant is stated as follows: ‘Was there sufficient evidence against appellant at the close of the people's case to deny his motion for directed verdict and submit the matter to the jury?’

Among other testimony presented in support of the people's charge that Roxborough conspired with others to obstruct justice, is the testimony of William L. Anderson, who was ‘engaged in the operation of a policy or numbers.’ He testified as follows:

‘In Volume 39 of the Grand Jury testimony, session of Thursday, November 30, 1939, page 4142, which I am using to refresh my recollection, I used the same words I used a while ago, have to take care of somebody, but I didn't know who it was, and John Roxborough told me I would have to give him $100 a month. * * *

‘Roxborough said I would have to give him $100 a month to take downtown, and it was not a loan I was paying back. I never paid the loan, never said no more about it. * * *

‘I had an arrangement with John Roxborough to give him $100 a month, which I supposed was used in the Big Four name. He told me that I would have to pay $100, that he would have to take it downtown, that once a month I would have to pay it. * * *

‘Q. Did you, at any time, give John Roxborough this $100 a month, after he told you that you would have to, for the Big Four, for the purpose of paying him back any money you owed him? A. No.

* * *

‘This $100 a month that I paid to Roxborough was handled this way: We have a fund to subtract, like you subtract the winnings, and you cut the money up. You subtract a certain amount from the total, that is, a total from it, and then I would take it from this total, and I had a fund to put it in to pay all such bills. It wasn't charged off as expense at all insofar as my partners were concerned, and it was left to me to keep the funds. Whenever they had a $1,000 winner, I would subtract the thousand dollars from that, and I would charge that on the sheet as $1,000 win, and then I would take $100 from that, and put it in this fund. Sometimes I would have seven or eight hundred dollars in the fund, and if I had to pay him anything like that, I would take it out of this fund, and it was taken out of the company funds when I was paying this money. One third of it was my own personal money, and speaking about the $100 that went to John Roxborough personally, one-third belonged to Mr. Williams, one-third to Mr. Mitchell, and the other third, myself, and I would pay this money to John Roxborough along Beacon Street anywhere. He would have to come down town for me to see him, because I didn't go out of his house.

‘I also paid fines and releases in addition to this $100.’

Walter Norwood, who ‘was engaged in the mutuel and policy business,’ testified:

‘I have known John Roxborough for twenty years and Everett I. Watson for about fifteen years. I knew William Mosley, Brumal Penick and William Robinson and attended a meeting with these men in 1935, together with a man by the name of Nelson, at the Waiters' and Bellman's Club. Duncan McCrea was Prosecutor at that time. The purpose of the meeting was that word had been brought to us that the Prosecutor wanted us to contribute to him so that we could keep the Italian boys out of the numbers. We delegated Penick and Watson to go to the Prosecutor's office. * * *

‘I know Mr. McBride with the Great Lakes. I had a conversation with him and then I talked to John Roxborough. Mr. McBride had a talk with me in December, 1938, and I guess this was in the same month I had a talk with John Roxborough; at that time he said I would have to pay McCarthy more money, that he had talked to McCarthy and told him he didn't need any collectors and that we would pay our own. Following that conversation with Roxborough I paid McCarthy $50 every month, paid it to Watson, and once it was sent to John Roxborough's office, which continued up until the grand jury started. During the time I was operating from 1935 to 1939 John McCarthy never raided me nor pushed me around or bothered me.’

Roxborough argues that ‘there was absolutely no evidence of any understanding, agreement, or combination whatsoever between appellant and any public officers to bribe them into neglect of their duties. Without such understanding, agreement, or combination, the crime of conspiracy cannot, of course, exist. The mere suspicion of appellant's conduct will not suffice to send the case to the jury.’

Without further discussion of other testimony, that which has just been referred to was sufficient to justify denial of appellant's motion for a directed verdict.

As said in People v. Knoll, 258 Mich. 89, 95, 242 N.W. 222, 224:

‘A conspiracy exists when two or more persons combine to do a criminal act; and, when the crime has been committed by one or more of them, under the statute above quoted, each may be prosecuted therefor. The proof of the conspiracy in such a case is but incidental to the proving of the crime itself. It need not appear that all of the parties got together and agreed upon the means for its accomplishment.

“The existence of the assent of minds which is involved in a conspiracy may be, and, from the secrecy of the crime, usually must be, inferred by the jury from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole.” Underhill's Criminal Evidence, 3d Ed., p. 951.

The testimony of the various witnesses presented questions of fact for consideration by the jury and the record contains sufficient testimony from which the jury could find Roxborough guilty as charged.

‘Conspiracy may be established by circumstances and may be based on inferences.’ People v. Robinson, 306 Mich. 167, 175, 10 N.W.2d 817, 820.

The trial judge did not err in denying the motion for a directed verdict.

It is asserted that the trial judge erred ‘in permitting the people to refresh the recollection of their witnesses and to impeach them by use of the Grand Jury minutes while at the same time limiting their...