People v. Watson, 83.

• Decision Date: 29 December 1943
• Docket Number: No. 83.,83.
• Citation: 307 Mich. 596,12 N.W.2d 476
• Parties: PEOPLE v. WATSON et al.
• Court: Michigan Supreme Court

307 Mich. 596

12 N.W.2d 476

PEOPLE

v.WATSON et al.

No. 83.

Supreme Court of Michigan.

Dec. 29, 1943.

Everett I. Watson and others were convicted of conspiring to set up a certain lottery or gift enterprise for money, commonly known as ‘policy,’ ‘mutuel,’ ‘numbers' or ‘clearing house’ contrary to laws of the state and the ordinances of the City of Detroit, and they appeal.

Affirmed.Appeal from Circuit Court, Wayne County; Earl C. Pugsley, judge.

Before the Entire Bench.

Toy & Newman and Fred R. Walker, all of Detroit, for appellant Everett I. Watson.

Fred R. Walker, of Detroit, for appellants Peter Kosiba, John P. McCarthy and George Frank.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Thomas A. Kenney and Daniel J. O'Hara, Asst. Attys. Gen., for appellee.

SHARPE, Justice.

Defendant, Everett I. Watson, was tried, convicted and sentenced in the circuit court of Wayne county on the second count of an information which charged that on the 2d day of January, 1935, and on other times between that time and the 1st day of March, 1940, at the county of Wayne and State of Michigan, John W. Roxborough and others knowingly conspired, wilfully and corruptly to aid, assist and enable the setting up or promotion, management or drawing within the State of Michigan of a certain lottery or gift enterprise for money, commonly known as ‘policy’ and/or ‘mutuel,’ ‘numbers' and ‘clearing house’ contrary to the laws of the State of Michigan and the ordinances of the city of Detroit. The facts as shown by the record are amply stated in People v. Roxborough, 12 N.W.2d 466, to which reference is made.

Upon appeal, defendant urges that the information is void as it does not allege the venue of the offense within the territorial jurisdiction of the circuit court of Wayne county. It is the claim of defendant that 3 Comp.Laws 1929, § 16300 (Stat.Ann. § 27.3561, sec. 11), specifically provides that the recorder's court of Detroit has exclusive jurisdiction over offenses committed within the limits of the city of Detroit and that the Wayne circuit could not have jurisdiction over this portion of the county; that the circuit court of Wayne county has no jurisdiction to try criminal offenses committed within the corporate limits of the city of Detroit and that if the jurisdiction of the trial court is less than the entire county, the venue must be so alleged. In support of this theory defendant relies upon 3 Comp.Laws 1929, § 17259 (Stat.Ann. § 28.985), which provides that the indictment or information shall contain: ‘3. That the offense was committed in the county or within the jurisdiction of the court. But no verdict shall be set aside or a new trial granted by reason of failure to prove that the offense was so committed unless the accused have raised such question before the case is submitted to the jury.’

This issue was raised before trial by defendant Watson in a motion to quash the information, but was denied by the trial court.

The prosecuting attorney presents the theory that the phrase ‘within the jurisdiction of the court’ as found in 3 Comp.Laws 1929 § 17259 (Stat.Ann. § 28.985), has reference to courts of limited jurisdiction such as the recorder's court of Detroit and has no application to the Wayne circuit court, a court of general jurisdiction. If we subscribe to the theory advanced by defendant the information is indefinite and uncertain as it fails to exclude that portion of Wayne county over which the circuit court has no jurisdiction. There is no claim made that defendant was misled or that there was any doubt that the offense was committed in that portion of Wayne county over which the circuit court had jurisdiction. We call attention to 3 Comp.Laws 1929, § 17289 (Stat.Ann. § 28.1015), which provides: ‘No indictment shall be quashed, set aside or dismissed for any one [1] or more of the following defects: * * * (Third) That any uncertainty exists therein.’

It is a generally accepted rule that under a statute vesting courts with power to amend indictments, any amendment not prejudicial to the rights of the accused may be allowed. See Dodge v. United States, 2 Cir., 258 F. 300,7 A.L.R. 1516. In the absence of any showing that defendant was prejudiced by the failure of the trial court to require an amendment there is not reversible error.

Defendant urges that the trial court committed prejudicial error in his failure to give the following instruction: ‘Under the charge as set forth in the information, I charge you that if you find that the alleged conspiracy, agreement or understanding was made and entered into in the City of Detroit, you must find all defendants not guilty, even though you may find that overt acts in furtherance of the alleged conspiracy were committed at some place or places in the county of Wayne, outside of the city of Detroit, because that is not the charge in this information.’

The trial court gave the following instructions upon this subject:

‘I further charge you as a matter of law that if you should find from the evidence that no overt act outside of the city of Detroit was committed in some part of Wayne county in furtherance of the conspiracy, it would then become your duty to render a verdict of not guilty in favor of all of the defendants, the reason for this instruction being that the Circuit Court of Wayne County, in which this case is now being tried would have no jurisdiction to try the alleged offense if the conspiracy as claimed and all acts in furtherance thereof were limited to the city of Detroit. Under such facts, the jurisdiction of the offense charged would be one for the Recorder's Court.

‘I further charge you as a matter of law that this court, sitting as the Circuit Court of Wayne County, does have jurisdiction of the offense charged, even though the conspiracy as claimed may have been formed in the City of Detroit, if you find that any overt act, whether the same be one or many, has been committed outside of the city limits of Detroit but inside of the County of Wayne, and in furtherance of the conspiracy, and it is the claim of the People that there were many of such overt acts in the County outside of the City of Detroit.’

The rule of establishing conspiracy within the jurisdiction of the court is settled in Michigan. In People v. Pettijohn, 283 Mich. 108, 277 N.W. 193, 195, defendant Pettijohn was tried and convicted in the recorder's court of the city of Detroit. There was evidence that a part of the conspiracy took place in the city of Detroit. We there said: ‘An overt act in connection with the conspiracy thus took place in Detroit and defendants could have been tried by either the recorder's court for the city of Detroit or the Wayne circuit court.’

In People v. Ranney, 304 Mich. 315, 8 N.W.2d 80, 81, the defendant was convicted of the crime of conspiracy to obstruct justice in Wayne county. We there said: ‘In the case at bar the overt acts of defendants were committed in the city of Detroit, but such acts were only a part of the general conspiracy which was county wide in scope.’

We there held that the circuit court of Wayne county had jurisdiction to hear the cause.

In the case at bar there was evidence that a part of the conspiracy took place in Wayne county outside of the city of Detroit. The question of venue is a jury question. See People v. Kongeal, 212 Mich. 307, 180 N.W. 636. The instructions given by the trial court on this question amply protected the rights of defendant.

It is urged that the trial court was in error in denying the motions for a mistrial after the prosecuting attorney had stated to the jury that he intended to show that certain defendants had entered pleas of guilty to the information and in permitting the introduction of the picture of defendant, David Lester, who had pleaded guilty.

It appears that during the course of the opening statement, the prosecutor said:

‘It is the claim of the People that at the original meeting back in 1935, when it was necessary for them to come across for the Prosecutor's office, or quit business, that Rooster Hammonds attended these meetings, or this meeting, that took place at that time, and he participated in there, although he did not run a numbers house-he ran a policy house, he and his partner Roane-and those two men have appeared in this Court under this Information, and pleaded guilty under the First Count in the Information. That is likewise true of Weisberg and Cox that I neglected to say, they pleaded guilty to the first count. * * *

‘The special squad was created. There was a big furor and the gold or brass hats, as they called them, the big boys in the police department, went out and staged a big raid on St. Antoine Street and around various other places throughout the city along in the early part of September, and following that we find the creation of the McCarthy Squad with John F. McCarthy, this defendant here, appearing as the head of it, and Aitken, Bess and Buck Kashazta and various other fellows that I will...