Opinion
Docket No. 96, Calendar No. 48,523.
Decided March 16, 1962.
Appeal from Ingham; Coash (Louis E.), J. Submitted October 12, 1961. (Docket No. 96, Calendar No. 48,523.) Decided March 16, 1962.
LeRoy King was convicted of furnishing intoxicating liquor to a minor. Reversed.
Paul L. Adams, Attorney General, Joseph B. Bilitzke, Solicitor General, Jack W. Warren, Prosecuting Attorney, and Howard A. McCowan, Assistant Prosecuting Attorney, for the people.
Stuart J. Dunnings, Jr., for the defendant.
Defendant and a woman companion were charged with the crime of having furnished alcoholic beverage theretofore, to wit, on or about the 10th day of September, A.D. 1958, to a minor.
The case was tried in circuit court without a jury. Both defendants were found guilty. Defendant LeRoy King appeals.
Proofs were offered to show that on September 10, 1958, the minor was at the home of the woman defendant, furnished a drink of liquor by her and that defendant King joined them there. There were no proofs to show that he furnished liquor to the minor on that date.
Next the people undertook to show that on or about September 16, 1958, the minor was again at the woman defendant's home and was served a drink of liquor by each of the 2 defendants. To this defense counsel objected, insisting that he was entitled to know whether the prosecution was relying on an offense committed on September 10th or one occurring on or about September 16th for a conviction. There was an inconclusive answer by the prosecuting attorney indicating an intent to rely on an occurrence of September 16th or thereabouts, but, when pressed for greater definiteness by defense counsel, the prosecutor urged upon the court the right to show the furnishing of liquor by defendants to the minor on or about September 16th and on other occasions for the purpose of showing a pattern of defendants' conduct in relation to the minor. The prosecuting attorney was then permitted by the court to show the furnishing of liquor by defendants to the minor on the occasion on or about September 16th.
At the conclusion of the proofs the court found that the defendants furnished liquor to the minor "on or about the 16th or thereabouts, which would be on or about the 10th" and found them guilty as charged.
We are satisfied from the record that, upon insistence by defense counsel that the prosecution elect as to the offense and date of offense on which it would rely, the defense was left with the understanding that the people were proceeding with the September 10th charge, with evidence of like offenses by defendants on other dates being offered solely to show a pattern of defendants' conduct in relation to the minor.
This is not, then, a case of slight uncertainty or mistake as to the actual date of the specific occasion and offense intended to be relied upon, as to which, under a videlicet, some variance between charge and proofs is not fatal so long as time is not of the essence of the offense. (See CL 1948, § 767.45 [Stat Ann 1954 Rev § 28.985], and CL 1948, § 767.51 [Stat Ann 1954 Rev § 28.991].) For such cases see People v. TenElshof, 92 Mich. 167; People v. Dieterich, 142 Mich. 527; People v. Nichols, 159 Mich. 355; People v. Whittemore, 230 Mich. 435; People v. Jones, 308 Mich. 43; People v. Fitzsimmons, 320 Mich. 116. Here there was no mistake as to the date of the particular occasion upon which the prosecution intended to rely, namely, September 10th, when the minor was present at the home of the woman defendant and served liquor by her. There having been no proof, however, that defendant King furnished liquor to the minor on that occasion, the court found him guilty of committing such offense on another occasion, namely, on or about September 16th, as to which proofs of his guilt were offered only for the purpose of showing a general pattern of conduct on his part. Defendant was not called upon to defend himself against a charge of having committed the separate and different offense on the latter date, and could not be found guilty thereof in this case. For cases discussing the general subject, some of them not necessarily controlling nor directly in point here, see Hull v. People, 41 Mich. 167; People v. Schilling, 110 Mich. 412; People v. Wilson, 136 Mich. 298; People v. Nichols, supra; People v. Leneschmidt, 260 Mich. 671.
Reversed.
CARR, KELLY, BLACK, KAVANAGH, SOURIS, and OTIS M. SMITH, JJ., concurred.
ADAMS, J., took no part in the decision of this case.