People v. Tinskey

• Decision Date: 25 September 1973
• Docket Number: Docket No. 11582,No. 3,3
• Citation: 212 N.W.2d 263,49 Mich.App. 497
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald W. TINSKEY and John F. Williams, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 263

212 N.W.2d 263

49 Mich.App. 497

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald W. TINSKEY and John F. Williams, Defendants-Appellants.

Docket No. 11582.

Court of Appeals of Michigan, Division No. 3.

Sept. 25, 1973.

Rehearing Denied Nov. 9, 1973.

Released for Publication Nov. 27, 1973.

Nicholas Smith, Smith, Bokos, Jones & Plakas, Detroit, Richard G. Leonard, Grand Rapids, Philip A. Gillis, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief Appellate Atty., for plaintiff-appellee.

Before DANHOF, P.J., and McGREGOR and MILES,* JJ.

DANHOF, Presiding Judge.

Defendants Gerald W. Tinskey and John F. Williams, along with 2 other defendants not involved in this appeal, were convicted by a jury of the offense of conspiracy to commit abortion, in violation of M.C.L.A. § 750.14; M.S.A. § 28.204 and M.C.L.A. § 750.157a; M.S.A. § 28.354(1). On April 15, 1971, the defendants were sentenced to terms of 10 months in the Kent County Jail.

Defendants' first contention is that there can be no guilt of the crime of conspiracy to commit abortion because of the impossibility of the actual commission of the abortion. This impossibility derives from the fact that the woman on whom the abortion was to be performed was actually a police woman who was not pregnant. The same argument advanced by defendants was made and rejected in State v. Moretti, 52 N.J. 182, 186--187, 244 A.2d 499, 502 (1968):

'Here, there can be no doubt that if, as the jury found, there was an agreement among the defendants, its purpose was to commit an unlawful abortion and the conspirators took substantial steps in an endeavor to accomplish this end. That, unknown to them, Mrs. Swidler was not in a condition to be aborted in no way negates their clearly manifested intent to commit a criminal act. Such concerted intent, coupled with an over act, is punishable whether or not the contemplated crime is consummated. United States v. Bayer, 331 U.S. 532, 542, 67 S.Ct. 1394, 1399, 91 L.Ed. 1654, 1661, Rehearing denied 332 U.S. 785, 68 S.Ct. 29, 92 L.Ed. 368 (1947). That a factor unknown to the conspirators makes it impossible for them to complete their intended crime in no way lessens the degree of culpability involved in the criminal combination.'

The law is equally well-settled in Michigan that conspiracy to commit a crime is a separate and distinct offense from the crime which it is the object of the conspiracy to commit. People v. Chambers, 279 Mich. 73, 77, 271 N.W. 556, 557 (1937).

Secondly, defendants claim that the record clearly demonstrates that the conspiracy in the instant case was generated by police agents, and that the defense of entrapment had therefore been established as a matter of law. The United States Supreme Court, in the recent case of United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) (released April 24), not only retained the traditional 'predisposition' test for entrapment, but reversed a lower court's finding of entrapment as a matter of law regardless of predisposition. There was evidence in the case at bar by which the jury could have concluded that defendant Williams took the initiative in contacting the other 3 defendants in order to carry out the abortion and that the police merely gave him the opportunity by means of a police decoy to commit a crime to which he was already predisposed. The issue of whether the police went further and actually implanted the criminal design in the mind of a theretofore innocent person in order to prosecute him was therefore appropriately left for the jury's determination.

Defendants' third claim on appeal is that the trial court erred in its instructions to the jury on the defense of entrapment by telling the jury at 2 different points in the instruction that those defendants (3 of the 4 codefendants among whom were defendants Williams and Tinskey) claiming the defense of entrapment had admitted the actual conspiracy. Defendants point to the fact that neither they nor the other 2 defendants took the stand at trial. They argue that, by merely requesting that the jury be instructed on entrapment, they admitted nothing. We agree that a mere request by a criminal defendant for an entrapment instruction cannot be deemed an admission. However, the law is also well-settled in Michigan that it is not error for the trial court to deny a requested instruction on entrapment when a defendant denies that he has committed the offense charged. People v. Murn, 220 Mich. 555, 558, 190 N.W. 666 (1922); Tomita v. Tucker, 18 Mich.App. 559, 563, 171 N.W.2d 564, 566 (1969); People v. White, 26 Mich.App. 35, 37, 181 N.W.2d 803, 804 (1970); People v. Claugherty, 36 Mich.App. 648, 652, 194 N.W.2d 54, 56 (1971); People v. Pugh, 48 Mich.App. 242, 246, 210 N.W.2d 376, 378 (1973). Many jurisdictions would seem to be...