People v. Burnette , 19 Mich. App. 336 ( 1971 )

19 Mich. App. 336 (1969) 172 N.W.2d 453

PEOPLE
v.
BURNETTE

Docket No. 5,071.

Michigan Court of Appeals.

Decided October 1, 1969. Leave to appeal denied May 20, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edwin M. Bladen, Assistant Deputy Attorney General, and George N. Parris, Prosecuting Attorney, for the people.

William A. Gentz, for defendant.

Before: LESINSKI, C.J., and DANHOF and QUINN, JJ.

Leave to appeal denied May 20, 1970. See 383 Mich 784.

DANHOF, J.

The defendant was convicted by a jury of unlawfully soliciting charitable contributions without a license, contrary to MCLA §§ 400.301, 400.303 (Stat Ann 1968 Rev §§ 16.71, 16.73), and on a second count of obtaining money in excess of $100 under false pretenses, contrary to MCLA § 750.218 (Stat Ann 1962 Rev § 28.415). Defendant appeals his conviction alleging several errors committed during the trial.

Defendant first alleges as error the failure of the trial judge adequately to instruct the jury on the basic issues of law raised by the information, and further, specifically, in instructing the jury that a promise made to perform a future act could constitute a false pretense within the meaning of the statute. The record discloses that the defendant did not object to the instructions given by the trial court as provided by GCR 1963, 516.2, and in fact affirmatively stated that he was satisfied with the charge as given. Accordingly, this Court will not reverse unless the error complained of has resulted in a miscarriage of justice. CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096); People v. Keiswetter (1967), 7 Mich App 334, leave to appeal denied 379 Mich 791. From our examination of the record we cannot conclude that there has been such a miscarriage of justice as to require reversal on the basis of instructions given. People v. Liggett (1967), 378 Mich 706.

Defendant complains particularly about the instructions given by the trial court on the issue of false pretense. The instruction given was:

"A false pretense, within the meaning of the statute, has been defined as a representation of some present existing fact or circumstance, intended and calculated to mislead, which is not true and which actually does deceive and induces persons deceived to part with something of value by reason thereof.

"However, there is an exception to this definition. When the representation is a promise to do something in the future, such as is alleged in this case, to use money for crippled children, or use money for the production of a show or entertainment, or the publishing of an educational safety booklet containing advertisements of persons contributing, without a present intention to perform this promise, then there is fraud."

Defendant alleges that this instruction constitutes error because it in effect provides that a "promise without the present intent to perform" constitutes false pretenses. We disagree. The first paragraph of the questioned instruction defines "false pretenses" without any reference to inclusion of a promise to act in the future. The theory of the prosecution was that the defendant could be guilty of false pretenses based upon a promise to act in the future coupled with misrepresentations of past and existing facts as inducements for the delivery of the money. Accord, People v. Vida (1966), 2 Mich App 409, affirmed 381 Mich 595. The record amply supports conviction under this theory. On the record made herein, a jury properly could convict defendant of obtaining money under false pretenses because of his misrepresentations of past and existing facts.

Defendant, however, questions the second paragraph of the instructions, claiming improper a charge to the jury which defines "false pretenses" to include a promise to act in the future without a present intention to perform. Without reaching the merits of whether false pretenses include promises to act in the future, we reject defendant's interpretation of the second paragraph. We do not find the second paragraph to state, as defendant contends, that "false pretenses" include promises to act in the future without a present intent to perform. The second paragraph defines "fraud", and not "false pretenses". This paragraph excepts fraud from the definition of false pretenses, fraud being there defined to include an act to be done in the future without a present intent to perform. The jury charge defined "fraud" properly. 37 Am Jur 2d, Fraud and Deceit, § 64, p 98. The defendant was not convicted of fraud. Therefore, the jury instruction of the second paragraph which excepted fraud from the definition of "false pretenses" did not result in prejudicial error to defendant under the circumstances of the instant case.

Defendant claims that the trial court should have instructed the jury on the question of aiding and abetting. Defendant contends that he could not properly be found guilty except under such an instruction as he did not make all of the solicitations personally. We find this contention to be without merit. The record discloses that the defendant was the originator of the ideas, set up the entire organization, developed the "pitch sheet" to be used in the telephone solicitations, received the monies, and in general was the main force behind the activities of the various enterprises in question. Representations made by the employees of the defendant or co-conspirators were properly received as evidence against the defendant. People v. Bagwell (1940), 295 Mich 412. This evidence supports the finding of defendant's guilt as a principal under the facts of this case.

Defendant next claims error in a statement made by the trial judge that the defendant had waived the production of numerous witnesses that had been indorsed on the information, because their testimony would only be cumulative. The exact statement complained about is as follows:

"There is one other matter, and that relates to the witnesses that were indorsed on the information, and it's my understanding that there were some 80 witnesses indorsed on the information. It's my understanding that counsel have discussed this matter, and that an agreement was reached by counsel for the defendant, that the remaining witnesses would be either cumulative —

"Mr. Bladen: That's correct, your Honor.

"The Court: And would not need be produced, is that correct?

"Mr. Gordon (defense counsel): That's correct.

"The Court: Very well. All right. We will adjourn now till Tuesday morning."

Defendant claims prejudicial error and cites as authority People v. Ruggero (1923), 223 Mich 368.

Defendant did not object to this procedure at the time of trial. Under the circumstances of this case the alleged error is not a ground for reversal unless we find after examination that it has resulted in a miscarriage of justice, CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096). The record of this case will not support such a finding. Unlike Ruggero, supra, in which the state rested its case upon the sole testimony of one child, the record discloses that some 37 witnesses had appeared in this matter. See also People v. Keiswetter, supra. While it is unfortunate that the trial judge made the statement, we doubt that after 37 witnesses it can be said that the remark of the trial judge resulted in a miscarriage of justice.

Defendant next claims error in the refusal of the trial court to grant a continuance because one of the co-conspirators entered a plea of guilty on the morning of the trial. The granting of a continuance is within the sound discretion of the trial judge. GCR 1963, 503.1; People v. Stoeckl (1956), 347 Mich 1. Our examination of the record fails to prove that this discretion has been abused.

At the trial a state trooper was allowed to testify as to statements made by the defendant pursuant to questions asked by the trooper on the evening before his arrest when the trooper was at a meeting of a civic organization and did not properly identify himself as a police officer. No objection was made to this testimony at the time of trial. On appeal defendant asserts this to be error. Also, defendant relies on Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694) and Escobedo v. Illinois (1964), 378 US 478 (84 S Ct 1758, 12 L Ed 2d 977) in support of the position that this testimony was improperly allowed. The defendant's reliance on these cases is misplaced. Unlike the defendants in Miranda and Escobedo, supra, the defendant was free to come and go, and his activities had not been so circumscribed by police custody. Defendant voluntarily attended and spoke at the meeting of the civic organization. The admission into evidence of testimony regarding the statements is not barred by the protection of the Fifth Amendment of the United States Constitution.

Defendant also complains that error was committed in allowing into evidence certain documents which were seized upon the premises of the defendant on a search warrant validly issued by a magistrate. The record discloses that the defendant failed to make timely objection to the admission into evidence of the documents charged to be improperly seized under the warrant. No motion was made to suppress the evidence. People v. Ferguson (1965), 376 Mich 90; People v. Wilson (1967), 8 Mich App 651.

The defendant makes numerous other allegations concerning rulings of the trial judge during the trial. He charges that these rulings were so prejudicial as to deny the defendant a fair and an impartial trial. These objections relate to the rulings of the trial judge regarding the examination of witnesses, the proposed use of a transcript because of the unavailability of a witness, which upon objection by the defense counsel was denied by the trial judge, the declaring of a prosecution witness to be hostile, and the allowance of cross-examination by the prosecution. From our examination of the record we do not believe that either jointly or severally these resulted in a miscarriage of justice so as to require reversal. CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096).

Affirmed.

All concurred.