People v. Smith

• Decision Date: 06 January 1941
• Docket Number: No. 139.,139.
• Citation: 295 N.W. 605,296 Mich. 176
• Parties: PEOPLE v. SMITH et al.
• Court: Michigan Supreme Court

296 Mich. 176

295 N.W. 605

PEOPLE

v.SMITH et al.

No. 139.

Supreme Court of Michigan.

Jan. 6, 1941.

Lyle Smith and Dewey Arnold were convicted of conspiracy to defraud by means of false pretenses, and they appeal.

Convictions affirmed.Appeal from Circuit Court, Genesee County; Edward D. Black (deceased), judge.

Argued before the Entire Bench.

Thomas Read, Atty. Gen., Edmund E. Shepherd, Asst. Atty. Gen., and Chester R. Schwesinger, Asst. Pros. Atty., of Flint, for the People.

BUTZEL, Justice.

We granted a delayed appeal to Dewey Arnold and Lyle Smith to review their convictions for the offense of conspiracy to defraud by means of false pretenses. The information charged that Arnold, Smith and other named defendants conspired to obtain the sum of $250 from one Gilbert Scott by means of false pretenses, by representing that they could furnish him with $1,000 in counterfeit United States currency, but in fact they intended to furnish ‘a quantity of worthless and bogus stage paper to represent money.’ The information also alleged previous convictions for felonies, charging Arnold as a third offender and Smith as a second offender. See 3 Comp.Laws 1929, § 17338, et seq., Stat.Ann. § 28.1082. They were tried by jury and convicted. They were sentenced as second and third offenders.

The proofs tended to show that one Stanley Bourcier, a co-defendant, met one Glenn Rohrer at a restaurant in Flint and told him where counterfeit money could be purchased. Rohrer did not care to enter into any transaction, but he told Bourcier that he knew another person who might be interested. Thereafter, Gilbert Scott was introduced to Bourcier, and on the former's manifestation of interest, arrangements were made to consummate the transaction. At this point Rohrer and Scott secretly informed the police, who supplied Scott with a roll of stage money with a one-dollar bill on the outside and another on the inside to suggest the appearance of a large number of bills. Scott had been shown samples of the supposed spurious bills, which were in fact genuine $10 bills, placed inside a magazine. Arnold, however, had stage money in his pocket at the time the transaction was about to be closed. Smith negotiated the sale of the counterfeit money. When the parties met to complete the transaction, all were arrested.

Defendants raise several questions in this appeal. They claim that there is no such crime as conspiracy to obtain money by false pretences, that prejudicial error was committed in permitting the prosecuting attorney to read to the jury the allegations of prior convictions in the information, that defendants were entrapped in committing the acts, that it was improper to admit in evidence an envelope which bore no marks of identification as the envelope which Scott testified Arnold showed him in furtherance of the conspiracy, that the trial court gave erroneous instructions to the jury, and that the verdict was against the great weight of the evidence.

The information alleged an offense cognizable under the law of Michigan. Section 218 of the Penal Code, Act No. 328, Pub.Acts 1931 (Stat.Ann. § 28.415), declares that ‘Any person who, with intent to defraud or cheat, shall designedly, by color of any false token or writing * * * or other written, printed or engraved instrument * * * or by any other false pretense * * * obtain from any person any money’ shall be guilty of a felony or misdemeanor, depending on the amount involved. Section 505, Act No. 328, Pub.Acts 1931 (Stat.Ann. § 28.773), declares that: ‘Any person who shall commit any indictable offense at the common law * * * shall be guilty of a felony.’ This section refers us to the common law for the gist of the offense. A conspiracy to commit a crime was an indictable offense at common law, and such conduct is made a felony by this section of the statute. People v. Watson, 75 Mich. 582, 42 N.W. 1005,People v. Chambers, 279 Mich. 73, 271 N.W. 556;People v. Fields, 288 Mich. 166, 284 N.W. 685. The common law condemned a conspiracy directed toward illegal ends, whether the object of the agreement was to violate the common law or the statute law. People v. Watson supra; People v. Fields, supra. The gist of the offense is the agreement to accomplish a violation of law and that is what the information charged.

We acknowledge some justification for the claim that reading to the jury the allegations of the information charging previous convictions might poison the minds of the jury at the outset of the trial. Its effect in swinging the balance toward conviction where the evidence on the merits of the new crime is weak or doubtful cannot be overlooked. Where the previous conduct has no circumstantial bearing on the crime charged, one may question whether the practice of alleging the previous convictions in the same indictment (3 Comp.Laws 1929, § 17338, et seq., Stat.Ann. § 28.1082 et seq.) conforms to the standard of fair play required by the due process clause of the Fourteenth Amendment to the Constitution of the United States or the comparable provision of the Constitution of the State of Michigan, Art. II, § 16. The Attorney General concedes that the method may be subject to criticism, and states in his brief that he, the warden of the Southern Prison, and the crime commission are pledged to sponsor a bill before the next legislature to correct some of the ‘apparent injustices' of the procedure. The practice has been condoned in previous decisions of this court: People v. Campbell, 173 Mich. 381, 139 N.W. 24;People v. Roth, 228 Mich. 447, 200 N.W. 136;People v. McDonald, 233 Mich. 98, 206 N.W. 516;In re Brazel, 293 Mich. 632, 292 N.W. 664;People v. Neaton, 294 Mich. 134, 292 N.W. 589. A complete discussion of the law in other jurisdictions may found in People v. Gowasky, 244 N.Y. 451, 155 N.E. 737, 58 A.L.R. 9, and the annotation at 58 A.L.R. 20, ‘Constitutionality and construction of Statute enhancing penalty for second or subsequent offense.’ A leading case is People v. Sickles, 156 N.Y. 541, 51 N.E. 288, discussed in People v. McDonald, 233 Mich. 98, 206 N.W. 516. Even if our disapproval of the method were to lead to a conclusion that Constitutional safeguards were denied, Section 17290, 3 Comp.Laws 1929, Stat.Ann. § 28.1016, precludes reversal of the judgment because of the failure to make timely objection to the form of the indictment and its reading: ‘No indictment shall be quashed, set aside or dismissed * * * nor shall any conviction be set aside or reversed on account of any defect in form or substance of the indictment, unless the objection to such indictment, specifically stating the defect claimed, be made prior to the commencement of the trial or at such...