People v. Gessinger , 238 Mich. 625 ( 1927 )

Defendant went to trial in Cass county on an information charging him with burglary, grand larceny, and receiving stolen property. He was found guilty of receiving stolen property knowing it to have been stolen. Defendant's counsel filed a motion for a new trial and assigned various reasons therefor. This motion was overruled, but the court, feeling that he had committed an error in his charge, granted a new trial on that ground. Defendant's counsel then moved to quash the information as to the charge of burglary and grand larceny, insisting at the time that when the defendant was convicted of the lesser, offense he was thereby acquitted of the greater offenses. The court refused to grant this motion, and defendant went to trial again on the same information for all three offenses, and was convicted the second time of receiving stolen property.

On exceptions before sentence, it is insisted that the trial court was in error in refusing to quash as to burglary and grand larceny. This raises the question whether, where defendant has been convicted of the lesser of several offenses charged, it is an acquittal of the other offenses.

The rule applicable in this State is well stated in 16 C. J. p. 260:

"By the great weight of authority, an acquittal upon one of several counts in an indictment, without a finding on the others, is an entire discharge of defendant, and may be pleaded in bar of a subsequent trial on the other counts; and where accused has been found guilty on one of several counts, and the verdict is silent as to the others, and he obtains a new trial, he can be prosecuted only for the crime of which he was found guilty, and may plead a prior acquittal as to the other counts. There are, however, cases to the contrary."

The text is supported by Dealy v. United States, 152 U.S. 539 (14 Sup. Ct. 680), which is directly in point.

In People v. Knapp, 26 Mich. 112, the defendant was informed against for murder and was convicted of manslaughter. The court said:

"The verdict of the jury amounts in law to an acquittal of any more serious charge than manslaughter and, therefore, is a denial of the charge that her death was the result of any other felony."

The holding in People v. Comstock, 55 Mich. 405, and in Re Franklin, 77 Mich. 615, is in accord with this rule.

In People v. Farrell, 146 Mich. 264, the question was before the court and all of the Justices agreed that this was the rule, but they seriously disagreed about other questions in the case.

The question was again considered in People v. Peck,147 Mich. 84, where the defendant was charged with larceny and several other related offenses. All of the Justices agreed that the rule stated was the law of this State, but a majority of the Justices refused to apply the rule because the motion to quash was not made until the case was practically over. It was said by reason of this the trial court could look further than the face of the information and take into consideration the proofs that were introduced. Whatever may be the rule elsewhere, we are persuaded that this rule has obtained whenever the matter has been before this court.

If the trial court was in error as to this question, was the defendant harmed by the ruling, inasmuch as he was convicted the second time for receiving stolen property? I think it is evident to most practitioners of experience that it would be much easier to secure an acquittal if the defendant were only charged with the lesser offense than it would be were he charged with all three offenses. The tendency of jurors is to compromise their differences. Where there is only one charge they are obliged to meet the question squarely by yes or no, or disagree, but where the charges are three, the juror who thinks there should be no conviction, and the juror who thinks that a conviction should be had of the greater offense are quite liable to agree upon a conviction of the lesser offense.

An observation by Mr. Justice CLARK in People v. Stahl,234 Mich. 572, is apropos:

"When twelve jurors agree on amount or degree generally there must be composition of views. Here the jurors to determine degree were required improperly to compose their views between the major charge of murder in its degrees and manslaughter. Defendant testified; if truly, he was innocent. The case was serious, sad. If the murder feature had been omitted from the instructions and the case submitted on the theory of manslaughter it cannot now be said with certainty that the jury would have reached the same result."

If this reasoning be sound, defendant was prejudiced in making his defense by being tried for three offenses instead of one.

The prosecutor called defendant's wife to the witness stand. She was sworn and testified, over defendant's objection, to the presence of the alleged stolen property while she was living with defendant as his wife. When she testified she was divorced. This was error. 3 Comp. Laws 1915, § 12555; People v.Trine, 164 Mich. 1; People v. Osborne, 205 Mich. 531; People v.Werner, 225 Mich. 18.

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

SNOW, FELLOWS, WIEST, and McDONALD, JJ., concurred with BIRD, J. STEERE and CLARK, JJ., concurred in the result.