People v. Lay

Brooke, J.

{after stating the facts). The first matter requiring consideration is the assignment of error based upon the action of the court in sustaining the demurrer to the several pleas in abatement. The statute involved (section 11881, 3 Comp. Laws [3 Comp. Laws 1915, § 15708]) provides:

“A person held to answer to any criminal charge, may object to the competency of any one summoned to serve as a grand juror, on the ground that he is the prosecutor or complainant upon any charge against such person; and if such objection be established, the person so summoned shall be set aside.”

Section 11882 (15709) provides:

“No challenge to the array of grand jurors, or to any person summoned as a grand juror, shall be allowed in any other case than that specified in the preceding section.”

This court has frequently held that no objection can be made to a grand jury or to any member thereof except for reasons specified in the statute. People v. Reigel, 120 Mich. 79 (78 N. W. 1017); People v. Salsbury, 134 Mich. 537 (96 N. W. 936). The question, therefore, under the first part of the first plea in abatement, is whether Mr. Stockwell, at the time he was placed upon the grand jury, was a “prosecutor or complainant upon any charge against such person” within the meaning of the statute. It is strenuously urged on behalf of respondent that because Stockwell, before he was called to the grand jury, had the minutes of the testimony taken by him in the bankruptcy proceeding and as a United States commissioner had made an investigation which included a consultation with the United States district attorney with a view to issuing a Federal warrant against the respondent upon the same state of facts relied upon in the case at bar, he should therefore be held to be a “prosecutor” within the meaning of the excluding statute. It should be observed that the plea does not allege that any warrant against respondent was issued by Stockwell, but only alleges that Stockwell considered the testimony taken in the bankruptcy proceeding “with a view of issuing a warrant.” A “prosecutor” is said to be “one who instigates the prosecution upon which the accused is arrested.” State v. Cohn, 9 Nev. 179, 191; Phillips v. Bevans, 23 N. J. Law, 373; United States v. Sandford, 27 Fed. Cas. p. 952. As defined by Bouvier, a “prosecutor” is “one who prefers an accusation against a party whom he suspects to be guilty.” A prosecutor cannot exist unless there is a prosecution, and a prosecution involves the idea of a formal complaint, information, or indictment filed against the criminal. People v. Garnett, 129 Cal. 364 (61 Pac. 1114); Day v. Inhabitants of Otis, 8 Allen (90 Mass.), 477. We think it clear that Stockwell was neither “prosecutor or complainant” within the meaning of the statute.

The second part of the first plea avers, upon information and belief, that the minutes of the testimony taken before Stockwell in the bankruptcy proceeding were used and read before the grand jury as evidence against respondent by Stockwell. Assuming that this averment is intended by the pleader to strengthen the claim that Stockwell was a “prosecutor” within the meaning of the statute, it requires no further discussion; if, however, the pleader intended, by including this averment in the first plea, to charge that the indictment was founded upon incompetent testimony, the plea would fail for duplicity. Findley v. People, 1 Mich. 234, where it is held that a plea which states several distinct facts having no relation or dependence upon each other is bad for duplicity.

The mere fact that incompetent, improper, and irrelevant testimony was received and considered by the grand jury is not fatal to the indictment, unless such testimony is the only testimony considered by them. People v. Lauder, 82 Mich. 109 (46 N. W. 956), and cases there cited and discussed.

The second, third, fourth and fifth pleas in abatement are not discussed by counsel for respondent.

The sixth plea in abatement is argued by counsel for respondent, but the argument refers rather to the use of the testimony given' by respondent in the bankruptcy proceeding before the grand jury than to the fact that respondent himself was required to give testimony before the grand jury which is the gravamen of the plea. The same point was raised in the case of People v. Lauder, supra, and was there passed upon contrary to the contention of the respondent.

With reference to the seventh plea in abatement, it is sufficient to say that the matter urged as an objection to the validity of the action of the grand jury is outside the provisions of the statute, and cannot be considered on a motion to quash the indictment.

It is argued on behalf of respondent that the court erroneously refused to direct a verdict for defendant at the close of the people’s case upon the ground that there was no evidence upon which the jury could properly predicate a verdict of “guilty.” Of course if there was any evidence of respondent’s guilt, its weight and sufficiency were for the jury. People v. Eaton, 59 Mich. 559 (26 N. W. 702). The statute under which respondent was indicted (section 11565, 3 Comp. Laws [3 Comp. Laws 1915, § 15310]) provides:

“If any officer, agent, clerk, or servant of any incorporated company, or of any city, township, incorporated town, or village, school district, or other public or municipal corporation, or if any clerk, agent, or servant of any private persons, or of a copartnership, except apprentices and other persons under the age of sixteen years, shall embezzle or fraudulently dispose of or convert to his own use, or shall take or secrete with intent to embezzle and convert to his own use, without consent of his employer or master, any money or other property of another, which shall have come to his possession, or shall be under his charge by virtue of such office or employment, he shall be deemed by so doing, to have committed the crime of larceny.”

After a careful examination of the record in this case we are unable to agree with the contention of counsel for respondent that it contains no evidence tending to prove that the moneys taken and received by the respondent from the Michigan Buggy Company under the guise of “salary” were so taken knowingly and wilfully, and with the deliberate intention of embezzling them. It would avail nothing to point out the evidential matter which in our opinion justifies this conclusion.

Reference is made to the preceding statement of facts. It should be said in this connection, however, that some of the facts stated may rest upon the admission of incompetent testimony, which will be hereinafter discussed, but with the elimination of these there still remains sufficient, in our opinion, to carry the case to the jury.

Section 7, par. 9, chap. 3, of the bankruptcy act (Act July 1,1898, chap. 541, 30 U. S. Stat. 548, 1 Fed. Stat. Annotated, p. 560) provides that it is the duty of the bankrupt to—

“submit to an examination concerning the conducting of his business, the cause of his bankruptcy, his dealings with his creditors and other persons, the amount, kind, and whereabouts of his property, and, in addition, all matters which may affect the administration and settlement of his estate; but no testimony given by him shall be offered in evidence against him in any criminal proceeding

It will be remembered that in the bankruptcy proceeding involving the affairs of the Michigan Buggy Company the respondent was examined, and that during the period covered by his examination he was vice president and a director of the bankrupt corporation. Upon his trial in the case at bar the people offered in evidence his testimony given in the bankruptcy proceeding. Strenuous objection was made on behalf of the respondent to its reception, but it was received, and much of it was read to the jury. To this action by the court respondent duly excepted.

On behalf of the people it is argued that respondent is not the bankrupt, and therefore that the provision of the statute does not apply to his testimony. On the other hand, counsel for respondent insist that, as corporations can act only through their officers who are natural persons, a reasonable interpretation of the statute would include officers of bankrupt corporations within the term “bankrupt.” With this view of the statute we are inclined to agree. The purpose of the statute would seem to be to secure from the bankrupt all information with reference to the bankrupt estate which would facilitate its orderly and economic administration. If the testimony of officers of bankrupt corporations may afterwards be used against them in criminal proceedings growing out of facts involved in the bankruptcy, they will be found reluctant to testify, and probably relying upon their constitutional privileges in refusing to testify. Under this view it follows that the admission of the testimony given by respondent in the bankruptcy case was erroneous, and we are unable to say that such error was without prejudice, although without the use of such testimony the jury might have reached the same result. Upon the trial Frank B. Lay, Sr., and Victor L. Palmer were both called as witnesses by the people. Both declined to testify as to facts within their knowledge concerning the charge against respondent, claiming constitutional privilege. Respondent himself did' not take the stand, but, as before pointed out, his testimony, taken in the bankruptcy proceeding, was read.

During the argument of the prosecuting attorney to the jury the following occurred. He said.-

“I have not a word to say about this respondent or Mr. Palmer testifying here, but I do have a word to say about this. * * *

“Mr. Irish: I except to that part of the argument.

“The Court: I will say that the prosecuting attorney has no right to comment upon the failure of the accused to testify, and he should refrain from making any comment or any suggestion of any sort relative to the failure of the respondent to testify, and the jury will disregard the same absolutely.

“And, again, if this salary proposition that is here in question was operated only (openly), legally, and above board, why haven’t the facts been put on here by those witnesses who refused to testify, who knew considerable about it.

“Mr. Irish: We except to that, we are not responsible for that.

“The Court: That is true, the respondent is not responsible for his father’s failure to testify, or Mr. Palmer’s either.

“Mr. Frazer: We ask the court to instruct the prosecuting attorney that he has no right to talk about that to the jury.

“The Court: The refusal of Mr. Palmer or F. B. Lay, Sr., to testify, in and of itself, can raise no presumption against the respondent.

“Mr. Frazer: Give me an exception.

“And again: After we have brought all this before you, are you .going out and say that this respondent is not guilty of improperly and illegally taking the funds of this company?

“Mr. Irish: I would like to save the point as to the remarks of the prosecuting attorney giving his opinion.”

Other remarks of the prosecuting attorney or his assistant were made in the course of the argument, referring to the fact that two of the witnesses; Lay, Sr., and Palmer had stood on their constitutional privilege. The statute (section 10211, 3 Comp. Laws [3 Comp. Laws 1915, § 12552]) provides:

“That a defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.”

This statute and alleged breaches of it have been under consideration by this court in the following cases: People v. Evans, 72 Mich. 367 (40 N. W. 473); People v. Payne, 131 Mich. 474 (91 N. W. 739); People v. Hammond, 132 Mich. 422 (93 N. W. 1084); People v. Cahill, 147 Mich. 201 (110 N. W. 520); People v. Mitchell, 164 Mich. 583 (129 N. W. 698); People v. Peterson, 166 Mich. 10 (131 N. W. 153). In all these cases remarks of the prosecuting attorney with reference to the failure of the accused to take the stand were held to constitute reversible error. In the case at bar the record discloses no remarks on the part of counsel for respondent which would tend to excuse or justify the criticism of the prosecuting attorney. The statute does not prohibit reference to the fact that witnesses other than the accused have failed to testify, though in our opinion such reference might well have been omitted. Many assignments of error are based upon the charge of the court. Certain isolated sentences, taken alone, may be subject to criticism, but, as a whole, the charge is full, fair, and, in our opinion, carefully preserved every substantial right of the respondent.

Because of the errors pointed out, the judgment is reversed, and a new trial ordered.

Stone, C. J., and Kuhn, Osteandeb, Mooee, Steeee, and Peeson, JJ., concurred. Bied, J., did' not sit.