People v. Streetman

59 Mich. App. 49 (1975) 228 N.W.2d 539

PEOPLE
v.
STREETMAN

Docket No. 18106.

Michigan Court of Appeals.

Decided February 24, 1975.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael E. Dodge, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Edward R. Wilson, Director, by Aloysius J. Lynch, Special Assistant Attorney General, of counsel), for the people.

John A. Lydick, Assistant State Appellate Defender, for defendant.

Before: V.J. BRENNAN, P.J., and J.H. GILLIS and D.E. HOLBROOK, JR., JJ.

Leave to appeal denied, 394 Mich. 798.

J.H. GILLIS, J.

Defendant was charged with embezzlement in violation of MCLA 750.174; MSA 28.371. He had a jury trial in the circuit court for Cass County, was found guilty and sentenced to serve two to ten years. He appeals as of right.

Defendant raises six issues on appeal and we deem it necessary to consider only two of these, the others not being of substance.

At trial, Francis McClane, former president of Ledgerwood Mobile Homes, Inc., of Edwardsburg, Michigan, testified that he hired defendant on June 29, 1972 to haul a mobile home from the Ledgerwood plant to a buyer in Butte, Montana. McClane said that although the buyer accepted delivery of the mobile home on July 4, 1972 and paid defendant $3,645.70 cash therefor, defendant returned from Montana on or about July 7, 1972 without the cash or defendant's truck. Defendant told McClane that the money and defendant's truck had burned up in a fire on the highway near Dell, Montana. McClane testified that defendant had no permission to retain the money in question.

Although defendant told several of the witnesses about the fire, there was no independent evidence that it ever occurred. Further, two prosecution witnesses — a State Police Fire Marshal and a service mechanic — each stated that there was no evidence of fire damage after having examined defendant's truck.

Defendant took the stand and testified in his own behalf, recounting how the money, which was in a cardboard suitcase in the cab of the truck, burned up when the truck caught fire. During his cross-examination, the prosecutor asked the defendant if he had ever sold a mobile home to a Beatrice Price in Florida. Defendant denied doing so but acknowledged that he had heard of her and that he was presently paying her for a trailer which she never received.

Defendant contends that the trial court committed reversible error in permitting the prosecutor to question the defendant about this prior misconduct, and to refer to it in his closing argument.

It is the general rule that evidence tending to show the commission of other criminal offenses by the defendant is inadmissible on the issue of his guilt or innocence of the offense charged. People v Der Martzex, 390 Mich. 410; 213 NW2d 97 (1973).

There is a statutory exception to this rule, however. Under this exception, evidence of independent acts may be admitted, not as substantive proof of guilt, but for the purpose of showing 1) motive, 2) intent, 3) absence of mistake or accident, or 4) a scheme, plan or system in doing an act. MCLA 768.27; MSA 28.1050.

In this case defendant testified that the money in question was destroyed in an accidental fire. Thus, the use of evidence of a prior similar act was particularly appropriate to support the conclusion that the defendant did indeed have the intent to embezzle the funds in question and that there had been no accidental truck fire.

Defendant contends that the act in question was not sufficiently similar to come under the statutory exception. However, the statute does not require identical acts, only "like acts". MCLA 768.27; MSA 28.1050. In People v Crawford, 218 Mich. 125; 187 N.W. 522 (1922), for example, the cashier of a bank was prosecuted for embezzling $2,000 from the bank. He was charged with taking two certificates of deposit which were delivered to the bank by a customer in payment of a note, and crediting the payment to his account and the account of a third party. At trial, evidence of three other similar acts was admitted, even though these acts involved three different methods of converting the bank's funds to his own use, none of them identical with the offense charged. The Supreme Court of Michigan affirmed, finding that "those transactions though not identical were similar to the one charged in the entries and manipulation of funds tending to indicate misapplication of assets of the bank". 218 Mich. 125, 137; 187 N.W. 522, 526.

Defendant also assigns as error that no instruction was given limiting the purpose for which evidence of a prior offense was admitted. However, defendant never requested a cautionary instruction, nor did he object to the instructions as given. In the absence of request or proper objection, there is no absolute requirement that the trial judge give limiting instructions. People v Chism, 390 Mich. 104; 211 NW2d 193 (1973).

We hold, therefore, that the trial judge did not err in admitting evidence of a prior similar act. Nor was it reversible error to fail to instruct the jury on the limited purpose for which the evidence was admitted, where, as here, there was no request for such instruction and no objection to the failure to instruct.

By way of a supplemental brief, defendant also argued that the district court lacked jurisdiction to conduct the preliminary examination because 1968 PA 154, creating the district court and providing it with jurisdiction to bind over felons, violates Const 1963, art 4, § 24, the title-body clause. This identical issue has recently been considered by the Michigan Supreme Court, and decided adversely to defendant's position. See People v Milton, 393 Mich. 234; 224 NW2d 266 (1974).

Affirmed.