People v. Mosley , 226 Mich. 295 ( 1924 )

Defendant was convicted of the crime of larceny by conversion of $79.80, the property of Wade M. Moore, Josephine Moore, Eugene Gilliard and Etta Gilliard. The Moores and Gilliards purchased from Alfred Brouillard some property on land contract. Defendant represented the purchasers and it was agreed they should leave the payments, as they fell due under the contract, with defendant, and Mr. Brouillard would call and get them. The purchasers paid defendant $3 per month for his services in figuring the interest and handling the money. A payment of $79.80 was left with defendant by the purchasers and he converted it to his own use.

At the trial defendant claimed he was Brouillard's agent and moved for a directed verdict. This was denied. Upon this question the evidence presented an issue of fact and the trial judge very properly left the same to the jury. At the trial defendant urged a variance between the charge in the information and the proofs with reference to the ownership of the money. We do not think the evidence was so clear upon this as to remove the question of ownership of the money from one of fact for the jury. Defendant insists the verdict is against the great weight of the evidence. This was presented in the trial court by motion for a new trial, but, in the absence of a request for reasons for denying a new trial and exceptions thereto, the question is not before us for review. 3 Comp. Laws 1915, § 12635; Mahder v. Wax, 192 Mich. 479; Vezina v. Shermer,198 Mich. 757; Marsh v. Rogers, ante, 290, handed down herewith.

Defendant was tried before the late Judge Charles T. Wilkins. A motion for a new trial was filed, but before presentation Judge Wilkins died and the motion was presented to another judge of the same court and denied. Defendant claims the death of Judge Wilkins gave him a right to a new trial under holdings in Tefft v. Windsor, 17 Mich. 425; Crittenden v. Schermerhorn,35 Mich. 370; Wright v. Judge of Superior Court, 41 Mich. 726; De Haas v. Newaygo Circuit Judge, 46 Mich. 12. The death of Judge Wilkins in no way prevented defendant from having his conviction reviewed (3 Comp. Laws 1915, § 12636), and did not entitle him to a new trial. Since the enactment of this statute in 1879 the death of the trial judge does not interfere with right of review.

We find no record of a motion for a new trial on this ground and might, for that reason, refuse to consider the point because raised in this court for the first time. The cases cited do not warrant a new trial. No requests to charge were preferred. The charge has been examined with reference to the alleged errors therein and found to have fully laid before the jury the issues involved, including the felonious intent of defendant.

We find no reversible error and the conviction is affirmed.

CLARK, C.J., and BIRD, SHARPE, MOORE, STEERE, and FELLOWS, JJ., concurred. McDONALD, J., did not sit.