People v. Strickland , 306 Mich. 58 ( 1943 )

I cannot agree with the conclusion that the general finding of guilty as originally announced by the court was erroneous. I think it was a proper finding. The sentence imposed on this finding was in conformity with the statute (Act No. 8, § 50, Pub. Acts 1933 [Ex. Sess.] [Comp. Laws Supp. 1940, § 9209-65, Stat. Ann. § 18.1021]), and should not be reversed.

In this case, the defendant was charged in count one with unlawful sale of alcoholic liquor without having a license from the liquor control commission, and in count two with unlawfully keeping alcoholic liquor for sale without such license. The sale, and the keeping for sale, both are forbidden under the same penal section of the liquor control act, Act No. 8, § 32, Pub. Acts 1933 (Ex. Sess.), as amended by Act No. 281, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 9209-47, Stat. Ann. 1942 Cum. Supp. § 18.1003). The penalty, both for the sale and for keeping for sale, is the same and is imposed by section 50 of the act (Act No. 8, Pub. Acts 1933 [Ex. Sess.] [Comp. Laws Supp. 1940, § 9209-65, Stat. Ann. § 18.1021]). Violation of the act either by sale or by keeping for sale is made a felony, with the same punishment for both. The sentence in the case at bar was within the provisions of section 50. This is not such a case asPeople v. Stuart, 274 Mich. 246, cited by Mr. Justice BUSHNELL. The defendant in that case was charged in the first count with the crime of embezzlement contrary to the provisions of Act No. 328, § 174, Pub. Acts 1931 (penal code) (Comp. Laws Supp. 1940, § 17115-174, Stat. Ann. § 28.371). Under that section, the penalty for embezzlement (if the value of the property exceeds $50) is imprisonment for not more than 10 years or by fine not exceeding $5,000. The defendant was also charged in a second count with larceny by conversion contrary to the provisions of Act No. 328, § 362, Pub. Acts 1931 (penal code) (Comp. Laws Supp. 1940, § 362, Stat. Ann. § 28.594). The penalty under this count (penal code, Act No. 328, § 356, Pub. Acts 1931 [Comp. Laws Supp. 1940, § 17115-356, Stat. Ann. § 28.588]), if the property exceeds $50 in value, is imprisonment not exceeding 5 years or by fine not exceeding $2,500. Consequently, in theStuart Case, supra, this court held that a general verdict of guilty as charged without disclosing whether the conviction was under the first or the second count necessarily resulted in a mistrial, because in the two counts the defendant was charged with two separate and distinct offenses under different sections of the penal code, punishable by different penalties. Almost exactly the same situation as arose in theStuart Case again came before this court in People v.Powers, 272 Mich. 303, relied upon by Mr. Justice BUSHNELL for reversal. In the Powers Case, the defendant was charged in one count with receiving stolen property, and in a second count with larceny. This court held that the general verdict of guilty should not have been accepted, but declined to reverse because the issue of former acquittal or former jeopardy was not timely raised. The case now before us could properly have been submitted to a jury without requiring an election between counts, and a general finding of guilty on trial by the court without a jury was proper.

"The joinder in one information, in separate counts, of two or more offenses, which, though distinct in point of law, yet spring out of the same transaction, and are covered by the same testimony, cannot operate to the legal prejudice of the accused, and is permissible, and when distinct offenses are so committed and so charged, the people are not obliged to elect. People v.Sweeney, 55 Mich. 586; People v. McDowell, 63 Mich. 229;Van Sickle v. People, 29 Mich. 61; People v. Sessions,58 Mich. 594, 597; People v. Summers, 115 Mich. 537, 543. See, also, People v. Prague, 72 Mich. 178; People v. Durham,170 Mich. 598, 604. * * *

"We are of the opinion that the circuit judge did not err in his ruling upon this subject.

"As was stated in People v. Sweeney, supra:

"``Election between counts cannot be required on the ground that distinct offenses are charged, where they are committed by the same acts, at the same time, and the same testimony must be relied on for conviction.'

"This has been the rule in this State for many years, and in our opinion the cases cited by the learned circuit judge, in his denial of the motion for a new trial, are applicable here." People v. Warner,201 Mich. 547.

Almost the same question has been before us in People v.Grabiec, 210 Mich. 559. The defendant claimed that the information was bad for duplicity because it charged two offenses, namely, transporting intoxicating liquor, and having the same in possession, and that the court erred in not granting the defendant's motion to compel the prosecutor to elect upon which charge it would proceed. As in the case at bar, the two offenses were forbidden under one and the same section of the liquor control act, were committed by the same acts, at the same time, and the same testimony relied on for conviction. This court sustained the general verdict, citing numerous Michigan decisions.

In People v. Oesterle, 225 Mich. 489, the defendant was charged in the first count with illegal possession of intoxicating liquor, and in the second count with the illegal keeping of a place where intoxicating liquors were sold. The defendant was convicted of violating the liquor law as charged, and the general verdict was sustained by this court.

In the case now before us, if the general finding of guilty of violating the liquor law was a proper finding, the subsequent attempt of the court to amend the finding by electing between counts does not make it a void finding. No attempt was made to change the sentence, and, it being a proper sentence within the penal section of the act, must be sustained.

The conviction and sentence should not be reversed.