People v. Allan , 263 Mich. 182 ( 1933 )

The information filed against defendant contained five counts, four of which were dropped. Defendant was convicted on one count in the information which charged three separate and distinct offenses, namely, first, wilful and felonious embezzlement of the sum of $106,565.39 from the American State Bank; second, wilful and felonious abstraction of the same money in the same amount from the same bank; and third, wilful and felonious misapplication of the same sum of money belonging to the same bank. All three offenses charged in this count of the information are based upon 3 Comp. Laws 1929, § 11963.

Objection was properly and timely made to the information for duplicity. The objection was overruled.

1. It is said defendant did not pursue this objection. How could he? When once an objection is made in proper form and ruling made thereon by the trial court, the question may be passed upon by the appellate court as fully and completely as though the question had been raised and passed upon an infinite number of times. Scripps v. Reilly, 38 Mich. 10. Indeed, after a question has been squarely raised and passed upon by the trial court, repeatedly re-raising the same question on the trial has been criticized by this court. O'Connor v. Madison,98 Mich. 183.

2. There is no doubt, under the law of this State, different offenses may be charged in the same information and if the different offenses charged grow out of the same transaction, are supported by the same evidence and involve the same penalty, an election between counts may not be compelled.People v. McKinney, 10 Mich. 54; Van Sickle v. People, 29 Mich. 61; People v. Sweeney, 55 Mich. 586; People v.Dyer, 79 Mich. 480; People v. Summers, 115 Mich. 537; People v.Warner, 201 Mich. 547; People v. Grabiec, 210 Mich. 559; People v. Marks, 255 Mich. 271.

3. "The doctrine is well settled in this State that a person should not be subjected to trial for two separate and distinct offenses at one time. This rule is applied to cases of felony in most, if not all, of the States, and has been applied to misdemeanors in Michigan." People v. Rohrer, 100 Mich. 126.

See, also, People v. Jenness, 5 Mich. 305; People v. Aikin,66 Mich. 460 (11 Am. St. Rep. 512); People v. Jackman, 96 Mich. 269; Chase v. Van Buren Circuit Judge, 148 Mich. 149.

4. "If two or more distinct offenses are charged in the same count, the accused would have no means of knowing upon which charge the prosecutor would rely, and the jury might agree upon a verdict of guilty, while unable to agree upon any one of the charges." Tiedke v. City of Saginaw, 43 Mich. 64.

See, also, People v. Jenness, supra; People v. McKinney,supra; Hamilton v. People, 29 Mich. 173; People v. Jackman,supra; People v. Hamilton, 101 Mich. 87; People v.Shuler, 136 Mich. 161; Chase v. Van Buren Circuit Judge, supra;People v. Smith, 177 Mich. 358; People v. Czckay, 218 Mich. 660; People v. Marks, supra.

5. The three offenses charged in the information are separate, inconsistent, distinct offenses. This case does not fall within that line of cases above cited where "the several acts are construed as so many steps or stages in the same affair, and the offender may be informed against as for one combined act in violation of the law, and proof of either of the acts mentioned in the statute and set forth in the information will sustain a conviction." State v. Schweiter,27 Kan. 499; People v. Keefer, 97 Mich. 15; People v. Marks,supra. The count in the information upon which defendant was convicted was void for duplicity.

6. Defendant was convicted by general verdict of guilty. It does not appear that 12 jurors agreed upon his conviction of any offense. For aught that appears from the record, four of the jurors may have found defendant guilty of embezzlement, four of felonious abstraction, and four of felonious misapplication of the same money. Defendant was entitled to the verdict of all the jurors upon one distinct offense. This has been denied him.

Conviction should be reversed.

McDONALD, C.J., concurred with POTTER, J.