People v. Summers

• Decision Date: 18 January 1898
• Citation: People v. Summers, 115 Mich. 537, 73 N.W. 818 (Mich. 1898)
• Court: Michigan Supreme Court
• Parties: PEOPLE v. SUMMERS ET AL.

73 N.W. 818

115 Mich. 537

PEOPLE v. SUMMERS ET AL.

Supreme Court of Michigan

January 18, 1898

Exceptions from circuit court, Macomb county; James B. Eldredge, Judge.

Jacob L. Summers was convicted of obtaining property under false pretenses, and he brings exceptions. Affirmed.

An information which charges a conspiracy to obtain a note by false pretenses and sets out that the note was unlawfully obtained, but does not set out the means used, is not defective as a charge of conspiracy, since the obtaining of a note is not in itself unlawful and, where only the end to be accomplished by the conspiracy is unlawful, that only need be alleged; and a note is such "personal property" and "evidence of debt" as may be obtained by false pretenses, under 2 How.Ann.Rev.St. � 9432.

Fred A. Maynard, Atty. Gen., and John A. Weeks Pros. Atty., for the People.

Sidney J. Lochner, for respondent Summers.

MOORE, J.

The respondents were informed against jointly. Respondent Summers demanded a separate trial, which was granted him, and a verdict of the jury was rendered against him. The information contained three counts. The first one was withdrawn from the consideration of the jury by the trial judge. The other two are as follows: "(2) And the said prosecuting attorney further gives the court to understand and be informed that heretofore, to wit, at the township of Erin, in said county of Macomb, on the 29th day of May, 1896, the said H. C Nelson and Jacob L. Summers, with the intent to cheat and defraud them, the said Edward Fischer and Fred Fischer, did falsely pretend and represent to the said Edward Fischer and Fred Fischer that a certain promissory negotiable note payable to the said H. C. Nelson six months after date thereof, to wit, May 28, 1896, being the date of said note for the sum of three hundred and six dollars, which they, the said H. C. Nelson and Jacob L. Summers, did then and there offer to said Edward Fischer and Fred Fischer to be signed by them, the said Edward Fischer and Fred Fischer, was not a negotiable promissory note, and that the same was a contract by which they, the said Edward Fischer and Fred Fischer, were bound to pay said sum of money only on the contingency that they, the said Edward Fischer and Fred Fischer, could and would complete the sale of thirty-six stock-food steamers and evaporators aforesaid in the townships of Erin and Warren, in Macomb county, Troy, in Oakland county, and Grosse Pointe, in Wayne county, and that the said sum of money was not to become due or payable until the said Edward Fischer and Fred Fischer should sell thirty-six stock-food steamers and evaporators; and, the said Edward Fischer and Fred Fischer relying upon and believing said representations and pretenses so made as aforesaid, were deceived thereby, and were thereby then and there induced to sign, and did sign and deliver, their said note to said H. C. Nelson and Jacob L. Summers, the said H. C. Nelson and Jacob L. Summers, by means of the false pretenses aforesaid, did then and there designedly obtain of the said Edward Fischer and Fred Fischer said negotiable promissory note of the value of three hundred and six dollars, the making of which note and written instrument would be punishable as forgery, with the intent to cheat and defraud them, the said Edward Fischer and Fred Fischer; whereas, in truth and in fact the said instrument, the purport of which is above set forth, was a negotiable promissory note, and the same was not then and there a contract which bound the said Edward Fischer and Fred Fischer to pay said sum of money, to wit, three hundred and six dollars, only on the contingency that they, the said Edward Fischer and Fred Fischer, could and would complete the sale of thirty-six of said machines in townships of Erin and Warren, in Macomb county, Troy, in Oakland county, and Grosse Pointe, in Wayne county, as they, the said H. C. Nelson and Jacob L. Summers, then well knew; and whereas in truth and in fact said sum of money was to become due and payable with or without the happening of said contingency, or any other condition whatever, six months from the date of said instrument, as they, the said H. C. Nelson and Jacob L. Summers, then well knew. (3) And further, that heretofore, to wit, on the 29th day of May, 1896, at the township of Erin, in the county of Macomb, aforesaid, H. C. Nelson and Jacob L. Summers unlawfully, falsely, deceitfully, and fraudulently did combine, conspire, confederate, and agree together by divers false pretenses, subtle means, and devices to obtain and acquire unto themselves of and from the said Edward Fischer and Fred Fischer a certain negotiable promissory note, dated May 28, 1896, at Roseville, Michigan, for $306, with interest at seven per cent. per annum, payable in six months after date, to the order of H. C. Nelson, duly signed by Edward Fischer and Fred Fischer as makers, a more particular description of which note this informant is unable to give for the reason that the same is out of his possession and control, of the value of three hundred and six dollars, of the goods, chattels, and property of the said Edward Fischer and Fred Fischer, and to cheat and defraud them, the said Edward Fischer and Fred Fischer, of the same; and the said H. C. Nelson and Jacob L. Summers, in pursuance of and in accordance of said combination, conspiracy, and agreement between them as aforesaid, did, on the 29th day of May, A. D. 1896, at said township of Erin, in said Macomb county, by divers false pretenses, subtle means, and devises, unlawfully, falsely, deceitfully, and fraudulently obtain and acquire unto themselves of and from the said Edward Fischer and Fred Fischer, of the goods and chattels and property of the said Edward Fischer and Fred Fischer, the negotiable promissory note as above set forth in purport, with the intent to cheat and defraud the said Edward Fischer and Fred Fischer," etc. The jury returned a verdict of guilty.

Counsel for respondent have made 90 assignments of error. Some of them relate to objections made to the admission of testimony where no reason was given for the objection, and in other instances no exception was taken to the ruling. These assignments of error cannot be considered here.

Some of the assignments of error relate to the action of the trial judge in allowing Mr. Hazleton to sit as a juror. The record shows Mr. Hazleton had read something about the case, but it also shows that he did not remember what he had read, that he was not prejudiced against the accused, and that he could render a fair and impartial trial. He was challenged for cause, and the challenge was, as we think, very properly overruled.

Other assignments of error relate to the manner in which the talesmen were procured. They were drawn by a commission, in accordance with the law applicable to Macomb county, of which commission the sheriff was a member. His name was indorsed on the information as a witness for the people. A challenge was made to the talesmen because of the facts just stated. It was not shown that the sheriff was an interested party in any other way than as a witness for the people. We do not think this any more disqualified him from acting upon the commission than the fact that the clerk of the court swore the witnesses, and the judge presided at the trial, would disqualify them from acting upon the commission.

Before the trial commenced, an order was made excluding the witnesses for the people from the court room. Some of the assignments of error relate to the action of the court in allowing persons to be sworn as witnesses whom the defense claimed had not observed the order of the court. Before allowing them to be sworn, the judge satisfied himself that the witnesses had complied with the order of the...