People v. Nankervis

330 Mich. 17 (1951) 46 N.W.2d 592

PEOPLE
v.
NANKERVIS.

Docket No. 78, Calendar No. 44,571.

Supreme Court of Michigan.

Decided March 1, 1951.

Herbert Munro (Philip J. Caruso, of counsel), for appellant.

Stephen J. Roth, Attorney General, Edmund E. Shepherd, Solicitor General, Gerald K. O'Brien, Prosecuting Attorney, and Michael A. Guest, Assistant Prosecuting Attorney, for the people.

DETHMERS, J.

The information filed in this case contained 2 counts. The first charged that defendant, as an employee of the city of Detroit in the recorder's court traffic and ordinance division, did, from October 1, 1947, to April 1, 1948, request and accept payments of bribes to himself for his removal of records of traffic violations by certain persons from the files of that court contrary to PA 1931, No 328, § 125 (CL 1948, § 750.125 [Stat Ann § 28.320]). The second count charged defendant with wilful neglect of the duty enjoined upon him by law as a person holding public employment, viz., failing, as an employee of said court, to forward and preventing the forwarding to the secretary of State of records of traffic violations by certain persons contrary to PA 1931, No 328, § 478 (CL 1948, § 750.478 [Stat Ann § 28.746]). Defendant's motion at the opening of trial that the prosecuting attorney be required to elect on which count he would proceed was denied. At the close of proofs, people's motion to dismiss the second count was granted. The jury returned a verdict of guilty as charged in the first count. Defendant appeals.

The offenses charged in the 2 counts spring out of substantially the same transactions and the same proofs would tend to establish both. Defendant points to no proofs received which were material only to the second count and not to the first, on which defendant was convicted. That the second count was not dismissed until the conclusion of people's proofs did not constitute error. People v. Lahey, 256 Mich. 250; People v. Rose, 268 Mich. 529; People v. Bommarito, 309 Mich. 139.

The people called as witnesses persons connected with the transactions which resulted in defendant receiving bribes. Upon being examined, they proved to be very unwilling, reluctant and forgetful witnesses, professing not to know or remember things which they readily remembered as soon as they were confronted with questions and answers made by them in written statements given by them to the prosecuting attorney some time before trial. Such use of written statements, to refresh memories of reluctant witnesses for the people, does not amount to their impeachment, as defendant claims, and is permissible practice. People v. O'Neill, 107 Mich. 556; People v. Prevost, 219 Mich. 233; People v. Hallas, 257 Mich. 127.

There was no error in permitting testimony concerning several distinct transactions of the character charged against defendant inasmuch as the information charged a continuing offense of soliciting and accepting bribes as reward for misfeasance in the service of his employer during a period extending from October 1, 1947, to April 1, 1948. Evidence of separate and distinct acts and transactions tending to establish the continuing offense charged to have been committed by defendant during that period was admissible. People v. Elmer, 109 Mich. 493.

Defendant claimed error in admission of testimony concerning conversations and transactions between persons claimed to have furnished the bribes and one whom it was claimed acted as a go-between in the bribery transactions between them and defendant. The testimony, material to the claim of bribery as charged, was admissible despite the fact that it related to conversations and transactions which occurred out of the presence and hearing of defendant for the reason that they pertained to one common, unlawful enterprise in which the defendant, the go-between and the bribe furnishers were all engaged. People v. Ewald, 302 Mich. 31. "The general rule is well settled that, where several persons are engaged in one common unlawful enterprise, whatever is said or done by any one of them in the prosecution of the common enterprise, or while it is still in progress, is evidence against all the parties to it." People v. Pitcher, 15 Mich. 397.

Defendant was not entitled to a directed verdict of not guilty on the ground that the proofs failed to show that defendant's employer, the city of Detroit, was injured by defendant's course of conduct. The statute under which defendant was prosecuted constitutes it an offense for an employee to accept a bribe with the "understanding" that "he shall act in any particular manner in relation to his principal's, employer's or master's business." The proofs show that defendant did so. The statute does not make injury to the employer a necessary element of the offense.

Defendant contends that the act under which he was prosecuted is unconstitutional because it provides that no person shall be excused from testifying concerning violations of the act on the ground that his testimony might tend to criminate him^[*] and grants immunity from prosecution in relation to any transaction concerning which he has so testified. Defendant did not testify. His constitutional rights, accordingly, were not violated in the respect claimed. If the mentioned provisions of the act and the fact that certain of people's witnesses were required to testify, in accord therewith, as to matters tending to criminate them, combined to violate the constitutional rights of any of those witnesses, it is not the concern of defendant nor does it entitle him to reversal. See Cooper v. Cooper, 319 Mich. 692. Moreover, it is difficult to discern a violation of their rights in view of the grant of immunity.

Defendant urges that PA 1931, No 328, § 125, under which prosecution was brought, is unconstitutional for vagueness, indefiniteness and uncertainty of its provisions under Michigan Const 1908, art 5, § 21. Apparently this contention is based on the fact that the law covers both the giving and requesting or accepting of bribes, requires giving of testimony, grants immunity from prosecution in certain cases, and makes other provisions designed to secure the object of the law, namely, the prevention and punishment of the crime of bribery of employees for the purposes of influencing their acts in relation to their employers' business. Any provisions of the law pertinent and adapted to securing that object are properly included therein without violation of the constitutional inhibition indicated. Kurtz v. People, 33 Mich. 279.

Defendant claims it was error to bring prosecution under section 125 of the act for the reason that it applies only to employees of private employers, while he was a public servant. He says the prosecution should have been under section 117^[**] of the act, citing People v. Karoll, 315 Mich. 423. In this he is clearly in error, as section 117 applies only to the giver of bribes and not to the taker. Section 118^[†] of the act refers to taking of bribes by "any executive, legislative or judicial officer." Defendant was none of these, but a mere employee and, therefore, could not be prosecuted under section 118, but was properly proceeded against under section 125. People v. Leve, 309 Mich. 557.

The court charged the jury in part as follows:

"The defendant did not take the stand and testify in his own behalf. I charge you that is a right which he has under the law to testify or not to testify as he chooses and if he chooses not to testify, the jury have no right to draw any inferences unfavorable to him because of the fact that he did not testify in his own behalf."

Defendant claims error on the authority of People v. Mitchell, 164 Mich. 583, in which this Court held erroneous the instruction that the jury should not give defendant's failure to testify "any unfair consideration." This Court said that the instruction left the inference that the jury might give such failure fair consideration whereas they should have been instructed to give it no consideration. The situation in the instant case differs in that the court instructed the jury that they had no right to draw any inferences unfavorable to defendant by reason of the fact that he did not testify. A similar instruction was upheld in People v. Murnane, 213 Mich. 205.

Other claims of error were not argued in defendant's brief and are without merit.

The conviction is affirmed.

REID, C.J., and BOYLES, NORTH, BUTZEL, CARR, BUSHNELL, and SHARPE, JJ., concurred.

NOTES

[*] See Const 1908, art 2, § 16. — REPORTER.

[**] CL 1948, § 750.117 (Stat Ann § 28.312). — REPORTER.

[†] CL 1948, § 750.118 (Stat Ann § 28.313). — REPORTER.