People v. Martinovich , 18 Mich. App. 253 ( 1969 )

18 Mich. App. 253 (1969) 170 N.W.2d 899

PEOPLE
v.
MARTINOVICH
PEOPLE
v.
WOLAK

Docket Nos. 5,374, 5,894.

Michigan Court of Appeals.

Decided June 26, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Leonard Meyers, Assistant Prosecuting Attorney, for the people.

Carl Levin (Defenders Office — Legal Aid and Defender Association of Detroit), for defendant Thomas F. Martinovich on appeal.

Nick Arvan, for defendant Walter M. Wolak.

Before: LESINSKI, C.J., and FITZGERALD and V.J. BRENNAN, JJ.

FITZGERALD, J.

These two defendants were tried and convicted of receiving and concealing stolen property^[1] by the Recorder's court of the city of Detroit. They question here, as they did at the trial by a motion to suppress the evidence and quash the complaint and information,^[2] the sufficiency of the evidence presented at their preliminary examination, alleging that since some elements of that crime were not adequately shown by the People, they should not have been held on the charge.

The following testimony was given and constituted the total evidence presented to the examining magistrate:

A warrant on a charge unrelated to this case was in existence for the arrest of defendant Martinovich. His car, parked in an alley, was being watched by Patrolman Fraser when three men approached the car, two of them then entering a nearby building. Shortly thereafter, another car arrived being driven by one of the men, whereupon the other two men, plus a Mr. Gordon, appeared from the building and the trunk of the car was opened. Detective Bezian, observing large pieces of machinery in the trunk, approached the car, having been watching it from another location. Defendant Wolak disputably slammed the trunk shut. Defendant Martinovich was immediately arrested. Defendant Wolak then stated that the car was his. The trunk and car were then searched, and defendant Wolak was arrested for possession of burglar's tools, which the officers believed was the intended use of the machinery. Both defendants here, plus defendant Whalen who was later acquitted, were charged with receiving and concealing stolen property in excess of $100 and defendant Wolak was also charged with possession of burglar's tools (this charge later being dropped).

The complaining witness testified that several of his drill presses had been stolen in late March, 1967, two weeks before the arrest of the defendants, the value of all the stolen presses being $1,000. He gave the serial numbers to the Roseville police, but he was not positive if all those numbers actually corresponded to the drills actually stolen. He then testified that after the robbery he was summoned by the Detroit police and that he identified some property as being his. No particular items found in the trunk were shown at the examination or identified by the complaining witness at the examination as being his and having been stolen.

On the basis of this evidence, the defendants were bound over for trial. Their subsequent motion to suppress the evidence and to quash the complaint and the information was heard at the outset of their trial and was denied. Among other issues on this appeal, they raise the apparent question: was this testimony at the preliminary examination sufficient to create probable cause to believe that the defendants committed the crime of receiving and concealing stolen property?

The elements of the crime, which must be found in the evidence adduced at the preliminary examination,^[3] are: 1) that the property was stolen; 2) the value of the property; 3) the receiving, possession or concealment of such property by the defendant with the knowledge of the defendant that the property had been stolen; 4) the identity of the property as being that previously stolen; and 5) the guilty constructive or actual knowledge of the defendants that the property received or concealed had been stolen.^[4]

We find that the people failed in some way to show any of the elements of this crime. The burden is theirs at the preliminary examination to show that a certain crime had been committed and that there was probable cause to believe that the defendant did it.^[5] Proof positive of guilt is not required.^[6] We are also reluctant to find an abuse of discretion by an examining magistrate, given his wide discretion in finding probable cause.^[7]

However, justice mandates that we do remand this case and grant defendants' motion to quash the information. The identity of the exact goods seized from the trunk must be proven to be the same as the goods alleged to have been stolen. Probable cause to believe that the goods were those stolen is not enough. Proof that the goods found in defendants' possession were the same as the goods alleged to have been stolen must be introduced to supply a basis for the findings of probable cause required of the magistrate at the preliminary examination. Failure to provide this proof effectively deprives the trial court of jurisdiction to bind the defendants over for trial as the preliminary examination findings are tainted and insufficient.^[8] To require this question to be positively answered by the people does not bear in any way on the proofs of alleged fact and guilt to be later evaluated by the jury. If the actual goods seized were not shown conclusively to have been stolen by somebody at sometime, then the more particular questions based on the remaining elements concerning defendants' innocence or guilt of the crime charged are irrelevant.

The magistrate could not have known from the testimony that the machinery seized was the machinery stolen. In other cases comparing identity of goods stolen with goods found in the possession of the defendant, the witness was examined and testified much more thoroughly as to the connection.^[9] Some of those witnesses admittedly were testifying at the trial where a jury could evaluate their testimony,^[10] but the lack of any such testimony at the preliminary examination undermines the necessary foundation upon which both probable cause and guilt must be based.

In remanding this cause with directions to grant the motion to quash the information,^[11] we trust that two additional issues here raised, sua sponte, will be resolved. The people should present evidence at the preliminary examination which will tend to show that the defendants knew the machinery was stolen when they possessed, received, or concealed it.^[12] Also, the trial court will be expected to make findings of fact so that if review of its decision is required, we will know the precise reasons for the decision.^[13]

Judgment vacated and case remanded with direction to grant the motion to quash.

All concurred.

NOTES

[1] CLS 1961, § 750.535 (Stat Ann 1969 Cum Supp § 28.803).

[2] CL 1948, §§ 767.74, 767.76 (Stat Ann 1954 Rev §§ 28.1014, 28.1016).

[3] CL 1948, § 766.4 (Stat Ann 1954 Rev § 28.922). People v. Kennedy (1968), 9 Mich App 346; People v. Asta (1953), 337 Mich 590.

[4] 4 Gillespie, Michigan Criminal Law & Procedure (2d ed) § 2269, et seq.; People v. Tantenella (1920), 212 Mich 614.

[5] People v. Bean (1967), 7 Mich App 402.

[6] People v. Zaleski (1965), 375 Mich 71.

[7] People v. O'Leary (1967), 6 Mich App 115.

[8] People v. Asta, supra; People v. Hall (1965), 375 Mich 187.

[9] People v. Montague (1888), 71 Mich 318; People v. Oblaser (1895), 104 Mich 579; Cole v. People (1877), 37 Mich 544; People v. Maloney (1897), 113 Mich 536.

[10] People v. Kiley (1895), 107 Mich 345.

[11] People v. Hall, supra; People v. Asta, supra.

[12] People v. Lintz (1918), 203 Mich 683.

[13] GCR 1963, 517.1; 785.1; Welsh Co. of California v. Strolee of California, Inc., (CA9, 1961), 290 F2d 509.