People v. Spann

• Decision Date: 14 June 1966
• Docket Number: No. 140,No. 1,140,1
• Citation: 142 N.W.2d 887,3 Mich.App. 444
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald SPANN and Leonard Adams, Defendants-Appellants. Cal
• Court: Court of Appeal of Michigan — District of US

Page 887

142 N.W.2d 887

3 Mich.App. 444

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald SPANN and Leonard Adams, Defendants-Appellants.

Cal. No. 140.

Court of Appeals of Michigan, Division No. 1.

June 14, 1966.

Charles S. Brown, Detroit, for Leonard Adams.

Walter A. Kurz, Detroit, for Donald Spann.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Samuel H. Olsen, Pros. Atty., Wayne County, Detroit, for appellee.

Before LESINSKI, C.J., and GILLIS and QUINN, JJ.

LESINSKI, Chief Judge.

Defendants Donald Spann, Leonard Adams and others were tried by jury in recorder's court for the city of Detroit on charges of conspiracy, C.L.S.1961, § 750.505 (Stat.Ann.1954 Rev. § 28.773), and larceny over $100, C.L.S.1961, § 750.356 (Stat.Ann.1965 Cum.Supp. § 28.588). Spann and Adams were convicted, sentenced and now appeal.

In late November, 1963, Theodore Kaplan, controller of Sak's Fifth Avenue, Detroit store, received a telephone call from Ted Lole, general manager of Lafayette Waste Paper Company, the company that picked up Sak's baled waste paper. At a meeting held later on the same day, Mr. Lole produced various articles of clothing, later identified to be Sak's merchandise, which he had found in one of the bales picked up by Lafayette earlier on the 26th of November, 1963. At the time of their meeting, Mr. Lole revealed that the bale in which the clothing was found was marked in white chalk with various small 'x's.'

Mr. Kaplan notified the Detroit police department of the result of this meeting, after which the police department set up an elaborate surveillance of the Sak's loading dock located behind the store, in the New Center Building in mid-town Detroit.

On December 2, 1963, Detective Dinning, the officer in charge of the surveillance, was notified that a bale bearing an 'x' chalk mark had been discovered in the baling room, in the basement of the Sak's store. The next day Detective Dinning observed two unidentified men sitting for an hour and a half in a white, 1960 Oldsmobile with a blue convertible top parked at a meter near the loading dock. It was later learned that this car was registered in defendant Adams' name.

On December 4, 1963, a second marked bale appeared in Sak's baling room, and the employees were instructed to take all of the bales out to the loading dock, contrary to former procedure, whereby the driver from the waste paper company would take the bales directly from the baling room. On this day defendant Adams who was employed by Allied Maintenance Company, the company that supplies janitorial service to Sak's, assisted in taking the last of six bales out to the dock, which was not one of his usual duties. Some time after the bales were placed on the dock, defendant Spann was spotted in the alley going over to and examining the bales as they stood on the loading dock.

A new waste paper company was hired to pick up this load and the driver's assistant was a police officer named Ruppel.

After the bales were picked up, officer Ruppel, in the waste paper company truck, noted that they were being followed by three cars, one of which was the 1960 Oldsmobile convertible.

On the way to the waste paper company, at the intersection of Piquette and Beaubien streets, the truck driver was hailed by someone in the 1960 Oldsmobile convertible. When the truck came to a stop, a man identified as Howard Wheeler stated he was going to buy the paper on the truck. The driver said that the paper was going to the shop; that all he was doing was making the pickup. After the truck arrived at the waste paper company, officer Ruppel, as he came out of the office, was approached by Spann, James Anderson and George Hill, who had been following the truck in a black, 1963 Chevrolet convertible, license number FW 3315. Defendant Spann offered officer Ruppel $100 for a bale of paper. Officer Ruppel countered with an offer to sell all six bales. George Hill offered $200 for the six bales and officer Ruppel accepted, whereupon George Hill gave officer Ruppel a $100 bill. It was arranged that the truck would deliver the bales to 216 Waverly street in the city of Detroit. Anderson rode along with officer Ruppel and the waste paper company driver to point out the place for delivery. Upon arriving at the point of delivery, defendant Spann gave officer Ruppel five $20 bills and defendant Spann prepared a receipt showing that he had paid $200 for the six bales of paper and had officer Ruppel sign the receipt. The bales were then unloaded into a garage. While at the garage, defendant Spann asked officer Ruppel if he would be making the pickup at Sak's every day. Upon learning that he would, defendant Spann offered to pay officer Ruppel $100 for every bale he (Spann) wanted. He further made an agreement to have officer Ruppel pick up five of the bales just purchased the next day for which he was to return $50 to defendant Spann.

After completing this transaction, officer Ruppel returned to the Midland Waste Paper Company office and there met Detectives Dinning and Weinberg. All three immediately went to the Waverly address, where they found defendant Spann alone in the garage with a bale broken open and various garments piled atop another bale. Spann was arrested and these clothes were later identified as belonging to Sak's Fifth Avenue. On trial, the value of these garments was placed at slightly over $4,000.

After arrest of the other named defendants, formal examination was held on January 14, 1964, at which time the codefendants were bound over for trial. On arraignment all the codefendants pleaded not guilty. Codefendant Spann filed a motion to suppress evidence, quash the information and for separate trials. It was denied.

The testimony revealed that Leonard Adams, who normally had no duties in the bailing room, had access to it and, in fact, was in the bailing room on occasions. On one occasion he was seen making marks with white chalk upon one of the bales in question. It was described as a tic-tac-toe game involving 'x's' and 'o's' in which he engaged a fellow employee, Johnny Stamps. Charles Gray, who worked the baling room as a relief baler, and the store manager testified there was no need for the use of chalk in the baling room.

The testimony further revealed that of the two marked bales in the December 4, 1963 group, the one with an 'x' had no clothing in it, though the one marked with a white chalk '2' did have garments in it identified as belonging to Sak's.

The testimony revealed that title to the 1960 Oldsmobile convertible used by Wheeler in hailing the truck was in the name of Leonard Adams; that one Carlton Jackson, the brother-in-law of Wheeler, claimed actual ownership; that on December 3rd Jackson had committed possession of said vehicle to Leonard Adams for purposes of having repairs made to the transmission; that two unidentified men were seen in this vehicle while it was parked near the Sak's loading dock on December 3, 1963 for a period of an hour and a half; that at the end of this period, a woman came out of Sak's, entered the vehicle, and they all drove away.

At the completion of the People's case, counsel for defendant Adams moved for a directed verdict in favor of his client claiming that the proofs were so unsubstantial against Adams that the case ought not go to the jury. The trial court denied this motion stating that he felt sufficient proofs had been adduced to allow the case against Adams to go to the jury. The jury found defendants Spann and Adams guilty as charged. The charges against defendant Howard Wheeler were dismissed by the trial court for lack of proof.

The issues raised on appeal by defendant Adams question the sufficiency of the evidence to enable the jury to make a finding that he conspired to commit larceny, and that he also committed the crime of larceny.

In reviewing a jury determination in a criminal appeal, this Court must tread lightly, as the jury viewed the witnesses, heard all the testimony, and was in a superior position to determine the credibility of all that passed before it. Therefore, if proof of the elements of the crimes alleged was presented to the jury, its verdict must stand. As the Supreme Court said in People v. Weyonen (1929), 247 Mich. 308, 311, 225 N.W. 552, 553:

'A jury may draw reasonable inferences from facts established either by direct or circumstantial evidence, But may not indulge in inferences wholly unsupported by any evidence.' (Emphasis supplied.)

We have gone through the record with great care, and except for those facts previously enumerated, the People adduced no other proof that would tie the defendant Adams into either the conspiracy or the larceny alleged.

We find no evidence presented which connects Leonard Adams with the bale or marking of the bale that was picked up at Sak's on the 26th of November, 1963, containing clothing belonging to Sak's and marked with various small 'x's.'

No evidence was presented to establish the true nature of the bale marking system employed by the pilferers in this operation. Evidence disclosed that one bale containing clothing was marked with 'x's' and another with a '2,' while one marked with an 'x' contained none. From the fact that Spann was able to break open the exact bale containing the clothing, from his agreement to re-sell five bales the next day, and from his offer of $100 for certain bales, one can reasonably infer that a pre-arranged code for marking bales containing clothing existed.

The evidence presented in this case failed to establish any connection between Adams and Spann, or Adams with James Anderson and George Hill, whom it was testified were present when Spann bought the bales from officer Ruppel.

We are not unmindful of the facts that the white, 1960 Oldsmobile was registered in Adams' name, that it was committed to his custody on December 4, 1963, and that it was the vehicle seen occupied by two unidentified men near...