People v. Beaudoin

7 Mich. App. 461 (1967) 151 N.W.2d 868

PEOPLE
v.
BEAUDOIN.

Docket No. 1,855.

Michigan Court of Appeals.

Decided July 20, 1967.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James T. Corden, Prosecuting Attorney, and John G. Cummings, Assistant Prosecuting Attorney, for the people.

Thomas Beaudoin, in propria persona.

QUINN, J.

November 9, 1965, defendant was tried before the circuit judge without a jury and found guilty of violating CL 1948, § 750.131, as amended by PA 1962, No 65 (Stat Ann 1965 Cum Supp § 28.326).^[1] He appeals in propria persona and poses as one question for review, "Was a crime committed?" In view of the record which contains the answer to this question, we find the simplicity of the question refreshing and treat it as an accurate statement of the controlling issue, namely: does the record establish that a crime was committed?

The statute contains the language "with intent to defraud," and since the record contains no proof of such intent, the answer to this question is in the negative. Such answer requires reversal and obviates discussion of the other issues raised.

Normally, we would end here but the fact that the deficiency of required proof is so evident that the defendant in propria persona recognized it and raised the question for review and the fact the prosecuting attorney filed no brief in the case leads to only one conclusion, namely: the prosecuting attorney recognized the same deficiency. While we feel the prosecuting attorney should have recognized the lack of proof of intent to defraud at the close of proofs and either moved to reopen proofs to correct the deficiency or moved to nolle prosequi, depending on available proof, we are not prepared to say such recognition occurred before the transcript of the trial was examined. Then, however, the prosecuting attorney had an obligation to confess the error and request this Court to correct it rather than ignoring it by not participating in this appeal.

In cases tried by a judge without a jury, GCR 1963, 517.1 requires the judge to make findings of fact. This rule applies to criminal as well as civil trials. GCR 1963, 785.1(1). If the trial judge had complied with GCR 1963, 517.1 instead of merely pronouncing defendant guilty as charged, it seems reasonable to assume he would have recognized the deficiency in proof that requires this reversal.

Reversed.

LESINSKI, C.J., and GILMORE, J., concurred.

NOTES

[1] Any person who, with intent to defraud, shall make or draw or utter or deliver any check, draft or order for the payment of money, to apply on account or otherwise, upon any bank or other depository, knowing at the time of such making, drawing, uttering or delivering, that the maker, or drawer, has not sufficient funds in or credit with such bank or other depository, for the payment of such check, draft or order, in full, upon its presentation, or any person who, with the intent to defraud, shall make, draw, utter or deliver any check, draft or order for the payment of money to apply on account or otherwise, upon any bank or other depository and who shall not have sufficient funds for the payment for same when presentation for payment is made to the drawee, except where such lack of funds is due to garnishment, attachment, levy, or other lawful cause, and such fact was not known to the person who made, drew, uttered or delivered the instrument at the time of so doing, shall, if the amount payable in the check exceeds $50, be guilty of a felony, punishable by imprisonment in the county jail not more than 1 year or by a fine of not more than $500.