People v. Stuart , 274 Mich. 246 ( 1936 )

Don W. Stuart was tried before the circuit judge without a jury under an information which in separate counts charged defendant with having committed the crime of embezzlement contrary to the provisions of Act No. 328, § 174, Pub. Acts 1931 (Michigan Penal Code), and also of having committed larceny in violation of section 362 of the same act. At the conclusion of the testimony the circuit judge stated in an opinion rendered by him: "The verdict is that the respondent is guilty as charged." Thereupon defendant was placed on probation for two years or until the further order of the court. Defendant has appealed. Appellant complains that, notwithstanding he was charged with two separate and distinct offenses, the record does not disclose of which offense he was convicted. Embezzlement (section 174) is punishable by a maximum commitment of 10 years; but larceny by conversion (section 362) carries a maximum commitment of only five years. The essential elements of these two statutory offenses are different. It is a matter of right that defendant should have knowledge and have a proper record made of the exact offense of which he was convicted. Under the probationary sentence imposed defendant would be held constructively in the custody of the court for a period of two years without having been convicted of any specific offense. The general determination of the trial court that defendant was "guilty as charged" was no more than a general verdict.

"A general verdict of guilty, without specifying the count or offense on which it is founded, is invalid where there are several counts, each of which charges a separate and distinct offense, of a nature and character radically different from that in the other counts, and having no necessary connection." 16 C. J. p. 1105. See, also, numerous cases cited in notes.

While some authority to the contrary can be found, the decidedly prevalent and better rule is that above stated. The error pointed out resulted in a mistrial.

Appellant's contention that the prosecution should have been dismissed because of lack of sufficient testimony before the examining magistrate is without merit. Also we are of the opinion that appellant has no just reason to complain because the trial court received testimony tending to show transactions actions of like character in which defendant participated. Intent was an essential element of the prosecution in the instant case and the testimony was properly received. 3 Comp. Laws 1929, § 17320.

The judgment and sentence of the court are vacated and a new trial granted.

FEAD, WIEST, BUTZEL, BUSHNELL, EDWARD M. SHARPE, and POTTER, JJ., concurred. TOY, J., did not sit.