People v. Tenerowicz

• Decision Date: 06 March 1934
• Docket Number: No. 123.,123.
• Parties: PEOPLE v. TENEROWICZ et al.
• Court: Michigan Supreme Court

266 Mich. 276

253 N.W. 296

PEOPLE

v.TENEROWICZ et al.

No. 123.

Supreme Court of Michigan.

March 6, 1934.

Appeal from Circuit Court, Wayne County; Homer Ferguson, Judge.

Rudolph G. Tenerowicz and others were convicted of conspiring to permit the keeping and operating of certain houses of ill fame in the City of Hamtramck, Wayne County, and they appeal.

Affirmed.

Argued before the Entire Bench.Chawke & Sloan, of Detroit, for appellant Rupinski.

Echlin & Lendzion, of Detroit, for appellant Wurmuskerken.

Andrew C. Baird, of Detroit, for appellant Kaplan.

Robert T. Speed, of Detroit (George A. Kelly, of Detroit, of counsel), for appellant Tenerowicz.

Patrick H. O'Brien, Atty. Gen., and Harry S. Toy, Pros. Atty., and Harry F. Kelly, Thomas A. Kenney, Lioyd A. Loomis, and Edmund E. Shepherd, Asst. Pros. Attys., all of Detroit, for the People.

NORTH, Justice.

Defendants by indictment were charged with conspiring among themselves and with others to permit the keeping and operating of certain houses of ill fame in the city of Hamtramck, Wayne county, Mich. Motions to quash were denied. On trial by jury defendants were convicted, and they have appealed.

This is the first question presented by appellants: Is the indictment defective in not charging any offense known to the law; and is it sufficiently informative as to the nature of the accusation? The indictment contains two counts, but by reason of dismissal of the second count, we are presently concerned only with the sufficiency of the first count. We quote it in part: ‘That (the defendants) heretofore, to-wit: on the 15th day of April, 1928, and on divers other days and times between that time and the 15th of June, 1931, * * * together with divers other persons to this grand jury unknown, he, the said Rudolph Tenerowicz, then being a public officer and an executive officer of the said city of Hamtramck, to-wit: the mayor, and they, the said Joseph Rupinski and Harry Wurmuskerken, then being public and executive officers of the city of Hamtramck, to-wit: policemen and public officials and being then and there, to-wit: captain of police and chief of police, respectively, * * * all of whom were then duly elected, appointed, and qualified, and acting in their respective official capacities during such period of time, and they, the said Jacob Kaplan, (and others named) being then and there in said city engaged in the keeping, maintaining and operating of certain houses of ill fame, did unlawfully and wickedly agree, combine, conspire, confederate and engage to, with and among themselves, and to and with each other, and to and with divers other persons to this grand jury unknown, wilfully and corruptly to permit and allow the keeping, maintaining and operating of houses of ill fame, bawdy houses and houses and places resorted to for the purpose of prostitution and lewdness, at various places in the city of Hamtramck, in violation of the laws of the state of Michigan * * * by the said Jacob Kaplan, (and certain other persons named); they, the said Rudolph Tenerowicz, Joseph Rupinski, Harry Wurmuskerken, * * * public officials of said city of Hamtramck as aforesaid, then and there well knowing that said houses of ill fame should not be kept, maintained and operated in said city of Hamtramck, and that the keeping, maintaining had operating of such houses in said city was a violation of the laws of the state of Michigan * * *.’ Appellants first assert that the indictment does not charge any offense known to the law. They stress the point that the indictment does not charge a conspiracy to operate or maintain a house of prostitution; but instead a conspiracy ‘to permit and to allow’ the operation and maintenance of such places.

A conspiracy with or among public officials not to perform their official duty relative to enforcing criminal laws or certain criminal laws is an obstruction of justice. People v. MacPhee, 26 Cal. App. 218, 146 P. 522. A conspiracy to obstruct justice was and is an indictable offense at common law. If the conspiracy is an agreement or understanding that violations of a certain criminal law will not be prosecuted, it is not necessary to set forth in the indictment all the elements of the offense relative to which the conspiracy is alleged as would be required in a prosecution of the crime itself. Instead, it is sufficient to designate the contemplated crime by its common-law generic name, or in the words of the statute if it is a statutory offense. Alderman v. People, 4 Mich. 414, 69 Am. Dec. 321; 5 R. C. L. 1083. Further, an indictment alleging conspiracy as to such neglect of duty will not be rendered bad for duplicity merely because such conspiracy relates to more than one offense. If the misconduct charged is all germane to one course of wrongdoing there is only one conspiracy. It may be charged and punished as a single conspiracy. Hobbs v. State, 133 Ind. 404, 32 N. W. 1019,18 L. R. A. 774.

We think it might well be held that the words ‘to permit and allow’ houses of ill fame to be maintained and operated, as used in this indictment, should be construed as meaning and charging that defendants conspired to assist and enable and other parties named in the indictment in maintaining and operating such houses of ill fame. So construed, the criminality of the acts contemplated by the conspirators is clear. It is an unlawful undertaking by defendants in consequence of which one or more of the conspirators, assisted by the others, is enabled to and does maintain a bawdyhouse. Keeping such a place is a felony. 3 Comp. Laws 1929, § 16826. See, also, Act No. 328, P. A. 1931, § 452. Conspiracy to commit a felony constitutes an indictable offense at common law and may be prosecuted as such in this jurisdiction. ‘Every person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be punished by imprisonment in any state prison,’ etc. 3 Comp. Laws 1929, § 17343. There are many authorities holding that it is enough, in order to constitute a common-law conspiracy, if the acts contemplated are corrupt, dishonest, fraudulent, or immoral, and in that sense illegal or dangerous to the public interest. People v. Curran, 286 Ill. 302, 121 N. E. 637;Aetna Insurance Co. v. Commonwealth, 106 Ky. 864, 51 S. W. 624, 21 Ky. Law Rep. 503,45 L. R. A. 355;Fimara v. Garner, 86 Conn. 434, 85 A. 670;Commonwealth v. Waterman, 122 Mass. 43. ‘It is a double injury, to the individual and to the people, to combine for the promotion of any form of sexual debauchery.’ 2 Bishop on Criminal Law, § 235. As bearing upon what constitutes an ‘unlawful’ act incident to an alleged conspiracy, it is said in Chicago, W. & V. Coal Co. v. People, 214 Ill. 421, 73 N. E. 770, 775: ‘The term ‘unlawful,’ as here used, does not include every act which violates the rights of a private individual, and for which the law affords a civil remedy, but is held to include those acts which, by reason of the combination, have a harmful effect upon society and the public; and a combination may amount to a conspiracy although its unaccomplished object be to do that which, if actually done by an individual, would not amount to an indictable offense, and in that sense a conspiracy may consist of a combination to do what is merely unlawful.'

In the light of foregoing authorities it must be held that the indictment does properly charge these defendants with conspiracy. Nor do we find merit in appellants' complaint that this indictment is not sufficiently informative to advise the defendants of the nature of the accusation. ‘In criminal proceedings the accused is entitled to demand and know the nature and cause of the accusation against him. Beyond that, technical elaboration of pleadings fails to subserve the ends of justice, and becomes but ingenious pitfalls for one side or the other. In charging the offense a detailed recital of the evidence by which it will be established is not required.’ People v. Quider, 172 Mich. 280, 137 N. W. 546, 548. Concerning conspirators and conspiracies it has been said: ‘It is also objected that the indictment is so vague and uncertain as not to put the defendants on notice of some of the charges against them, because the conspiracy alleged included agreements to transport liquor from places which were not identified to places which were unknown, and to sell it at Savannah or at such unknown places. Conceivably the defendants could have entered into just that kind of conspiracy. They might not themselves have agreed upon the particular places to which the liquor would be transported, or at which it would be sold. If they could enter into a conspiracy to commit offenses without agreeing upon all of the details as to how or where some features of their conspiracy would be carried out, surely the indictment would not be rendered bad if it charged a conspiracy which also left out such details. If it were otherwise, it would not be difficult to form a criminal conspiracy which the law could not punish. The law is not as helpless as that. An indictment may be as general and indefinite as the conspiracy which it seeks to punish.’ Bailey v. U. S. (C. C. A.) 5 F.(2d) 437, 438.

To constitute a conspiracy, there must exist an understanding or agreement to accomplish an unlawful end, or a lawful end by unlawful means. People v. DiLaura, 259 Mich. 260, 243 N. W. 49. If, however, as in the instant case, the conspiracy charged is the doing of an unlawful act, the indictment need not set forth the manner or means of accomplishing such act. People v. Clark, 10 Mich. 310;People v. Petheram, 64 Mich. 252, 31 N. W. 188. It is not necessary to charge the illegal object of a conspiracy with the same degree of particularities required in charging the commission of the substantive offense. Alderman v. People, supra. ‘But in a charge of conspiracy the conspiracy is the gist of the crime, and...