People v. Smith

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] We granted a delayed appeal to Dewey Arnold and Lyle Smith to review their convictions for the offense of conspiracy to defraud by means of false pretenses. The information charged that Arnold, Smith and other named defendants conspired to obtain the sum of $250 from one Gilbert Scott by means of false pretenses, by representing that they could furnish him with $1,000 in counterfeit United States currency, but in fact they intended to furnish "a quantity of worthless and bogus stage paper to represent money." The information also alleged previous convictions for felonies, charging Arnold as a third offender and Smith as a second offender. See 3 Comp. Laws 1929, § 17338 et seq. (Stat. Ann. § 28.1082). They were tried by jury and convicted. They were sentenced as second and third offenders.

The proofs tended to show that one Stanley Bourcier, a codefendant, met one Glenn Rohrer at a restaurant in Flint and told him where counterfeit money could be purchased. Rohrer did not care to enter into any transaction, but he told Bourcier that he knew another person who might be interested. Thereafter, Gilbert Scott was introduced to Bourcier, and on the former's manifestation of interest, arrangements were made to consummate the transaction. At this point Rohrer and Scott secretly informed the police, who supplied Scott with a roll of stage money with a one-dollar bill on the outside and another on the inside to suggest the appearance of a large number of bills. Scott had been shown samples of the supposed spurious bills, which were in fact genuine $10 bills, placed inside a magazine. Arnold, however, had stage money in his pocket at the time the transaction was about to be closed. Smith negotiated the sale of the counterfeit money. When the parties met to complete the transaction, all were arrested.

Defendants raise several questions in this appeal. They claim that there is no such crime as conspiracy to obtain money by false pretenses, that prejudicial error was committed in permitting the prosecuting attorney to read to the jury the allegations of prior convictions in the information, that defendants were entrapped in committing the acts, that it was improper to admit in evidence an envelope which bore no marks of identification as the envelope which Scott testified Arnold showed him in furtherance of the conspiracy, that the trial court gave erroneous instructions to the jury, and that the verdict was against the great weight of the evidence.

The information alleged an offense cognizable under the law of Michigan. Section 218 of the penal code, Act No. 328, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-218, Stat. Ann. § 28.415), declares that "Any person who, with intent to defraud or cheat, shall designedly, by color of false token or writing * * * or other written, printed or engraved instrument * * * or by any other false pretense * * * obtain from any person any money" shall be guilty of a felony or misdemeanor, depending on the amount involved. Section 505, Act No. 328, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-505, Stat. Ann. § 28.773), declares that "Any person who shall commit any indictable offense at the common law * * * shall be guilty of a felony." This section refers us to the common law for the gist of the offense. A conspiracy to commit a crime was an indictable offense at common law, and such conduct is made a felony by this section of the statute. People v. Watson,75 Mich. 582; People v. Chambers, 279 Mich. 73;People v. Fields, 288 Mich. 166. The common law condemned a conspiracy directed toward illegal ends, whether the object of the agreement was to violate the common law or the statute law.People v. Watson, supra; People v. Fields, supra. The gist of the offense is the agreement to accomplish a violation of law and that is what the information charged.

We acknowledge some justification for the claim that reading to the jury the allegations of the information charging previous convictions might poison the minds of the jury at the outset of the trial. Its effect in swinging the balance toward conviction where the evidence on the merits of the new crime is weak or doubtful cannot be overlooked. Where the previous conduct has no circumstantial bearing on the crime charged, one may question whether the practice of alleging the previous convictions in the same indictment as is permitted by statute (3 Comp. Laws 1929, § 17338 et seq. [Stat. Ann. § 28.1082 etseq.]) conforms to the standard of fair play required by the due process clause of the Fourteenth Amendment to the Constitution of the United States or the comparable provision of the Constitution of the State of Michigan (Art. 2, § 16). The attorney general concedes that the method may be subject to criticism, and states in his brief that he, the warden of the southern prison, and the crime commission are pledged to sponsor a bill before the next legislature to correct some of the "apparent injustices" of the procedure. The practice has been condoned in previous decisions of this court: People v.Campbell, 173 Mich. 381; People v. Roth, 228 Mich. 447;People v. McDonald, 233 Mich. 98; In re Brazel, 293 Mich. 632;People v. Neaton, 294 Mich. 134. A complete discussion of the law in other jurisdictions may be found in People v.Gowasky, 244 N.Y. 451 (155 N.E. 737, 58 A.L.R. 9), and the annotation at 58 A.L.R. 20, "Constitutionality and construction of statute enhancing penalty for second or subsequent offense." A leading case is People v. Sickles,156 N.Y. 541 (51 N.E. 288), discussed in People v. McDonald, supra. Even if our disapproval of the method were to lead to a conclusion that constitutional safeguards were denied, 3 Comp. Laws 1929, § 17290 (Stat. Ann. § 28.1016), precludes reversal of the judgment because of the failure to make timely objection to the form of the indictment and its reading:

"No indictment shall be quashed, set aside, or dismissed * * * nor shall any conviction be set aside or reversed on account of any defect in form or substance of the indictment, unless the objection to such indictment, specifically stating the defect claimed, be made prior to the commencement of the trial or at such time thereafter as the court shall in its discretion permit."

See, also, People v. Cleveland, 295 Mich. 139.

There is no merit in the claim that the conviction must be set aside because entrapment by the police stripped the transaction of criminality. The evidence warranted the jury in finding that the conspiracy was completed by the parties themselves before the local law enforcing authorities came into the picture. Although at an early day exposing persons to temptation to commit crime was looked upon as a "diabolical business," it is only "active measures" (CAMPBELL, J., in People v. McCord, 76 Mich. 200) of persuasion that may stamp the crime as the product of entrapment. The rule was well stated by Circuit Judge Sanborn in Butts v. United States (C.C.A.), 273 Fed. 35 (18 A.L.R. 143):

"Where the criminal intent originates in the mind of the defendant, the fact that the officers of the government used decoys or truthful statements to furnish opportunity for or to aid the accused in the commission of a crime, in order successfully to prosecute him therefor, constitutes no defense to such a prosecution."

See, also, People v. Christiansen, 220 Mich. 506; People v.Murn, 220 Mich. 555; People v. England, 221 Mich. 607;Billingsley v. United States (C.C.A.), 274 Fed. 86, certiorari denied, 257 U.S. 656 (42 Sup. Ct. 168,66 L.Ed. 420); Robinson v. United States (C.C.A.), 32 Fed. (2d) 505 (66 A.L.R. 468), and annotations, "Entrapment to commit crime with view to prosecution therefor," 18 A.L.R. 146; 66 A.L.R. 478, 86 A.L.R. 263. Defendants were not inspired into crime by the police authorities; they merely furnished opportunity or aid in furtherance of an already completed conspiracy in order to acquire evidence of the consummated crime.

There was no error in admitting in evidence the envelope in which defendant Arnold had his "stage money" merely because it had no tokens of identity. The complaining witness Scott testified that it was the envelope which defendant Smith delivered to Arnold, whom Bourcier had described as "selling this counterfeit money in Pontiac." Its authenticity as the original or a fabrication was a question of fact for the jury. The trial court properly permitted its introduction for whatever worth it might have.

Objection is made to the following portion of the trial court's charge to the jury:

"In this case two of the respondents have taken the witness stand and their testimony is sufficient to convict the whole four if you believe it to be true. * * *

"So you, if you believe the testimony of the respondents themselves, they have convicted themselves, except that they have said it was for the purpose of catching a stool pigeon, what they call a stool pigeon, or a man who is trying to ferret out crime, but if you believe the testimony as given before the jury, and in the prosecutor's office, given by Mr. Straley, they committed all of the elements that go into the making of the, — it is not necessary in a conspiracy case that the man from whom they tried to take money, or property, should lose anything by it. The law of conspiracy is the forming of the intent to defraud. That is what conspiracy is, the performing of an unlawful act. So I say to you, the testimony of the two men, if you believe their testimony, they have connected all four together with the exception, as I said, they wanted to claim it was trying to catch a stool pigeon. * * *

"Now, if you believe from the testimony of these two men, believe it is true, with the exception of the fact they were trying to find out who the stool pigeon was, they have convicted the whole four, if you believe their testimony, because they have said to you they were together in this transaction, not at one time, the whole of them, but they were collected together, Mr. Bushey, Doc, Arnold, Smith, who first furnished the money, he was down there also in the hotel, and Dewey Arnold, by themselves they have connected these four people as the ones that were together, if you believe they were trying to dispose of this money, or get some money for nothing, if you find they were trying to get that man's money."

It is said that the comments of the court invaded the province of the jury. The trial court merely outlined the theory of the case, explaining defendants' claim that they went through the acts of the proposed conspiracy in order to prove that some one was acting as a "stool pigeon, as well as the theory upon which the people based their case. He expressed no opinion on credibility, but left that up to the jury. Considering the charge as a whole, there was no error.

We have examined the record with care, and conclude that there is ample evidence to support the verdict of the jury. As triers of the facts it was their function to weigh the testimony on each side and determine whose theory of the case to believe. Appellants exercised their legal rights in not testifying. The verdict is not against the great weight of the evidence.

The convictions are affirmed.

SHARPE, C.J., and BUSHNELL, BOYLES, CHANDLER, NORTH, McALLISTER, and WIEST, JJ., concurred.