Opinion
Docket No. 197.
Decided September 20, 1965.
Appeal from Recorder's Court of Detroit; O'Hara (John P.), J. Submitted Division 1 June 8, 1965, at Detroit. (Docket No. 197.) Decided September 20, 1965.
Leslie Z. Wilson was convicted of larceny by conversion. Defendant appeals. Reversed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Samuel D. Olsen, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and James E. Lacey, Assistant Prosecuting Attorney, for the people.
Wilfred C. Rice, for defendant.
Defendant Leslie Z. Wilson was tried without a jury, convicted of larceny by conversion (in the amount of $250) CL 1948, § 750.362 (Stat Ann 1954 Rev § 28.594) in the recorder's court of the city of Detroit, and sentenced to no less than two nor more than five years at Jackson prison. Defendant is aggrieved by the conviction and appeals. He alleges 11 errors.
Defendant Wilson on January 17, 1963, called at the home of complainant Willie Smith with the apparent intention of soliciting a sale of household furniture. Although no written memoranda of the proposed sale of furniture is shown to have been made, it does appear that the furniture consisted of a 2-piece living room suite. After complainant Smith stated that his credit was poor, defendant Wilson suggested that complainant Smith take a loan in the amount of $250 from the Victory Loan Company.
On January 18, 1963, complainant Smith, defendant Wilson, and Ernestine Walker appeared at the office of the Victory Loan Company in the city of Detroit. Willie Smith and Ernestine Walker signed a promissory note in the amount of $250; complainant Smith signed a chattel mortgage on household furniture. Defendant Wilson arranged for Ernestine Walker to sign Willie Smith's note.
The testimony is undisputed that defendant Wilson paid $14.27 on the said loan on February 25, 1963, and made another payment in the amount of $20 on April 22, 1963. The Victory Loan Company started civil action against Willie Smith when no further payments were received on the promissory note. The claim was reduced to a judgment and a writ of garnishment was issued against Willie Smith. After Willie Smith's wages were garnisheed, he notified the Detroit police department that he had signed a promissory note made payable to the Victory Loan Company and that he had not received the money or the furniture. After examination in the instant case, complainant Smith accepted payment of the amount owing on the promissory note from defendant Wilson.
This fact was called to the attention of the Wayne county prosecuting attorney's office. The attorney for defendant requested the prosecutor to nolle prosequi the complaint pending against defendant. The parties could not agree on the amount of costs and the prosecutor's office refused to nolle prosequi the cause pending before the court (CL 1948, § 775.12 [Stat Ann 1954 Rev § 28.1249]).
The record is clear that the Victory Loan Company issued a check in the amount of $250 payable to complainant Smith and defendant Wilson. (The check was not introduced in evidence.) Both complainant Smith and defendant Wilson indorsed the said check and returned it to a representative of the loan company.
Among the 11 errors claimed, we find the assertion that one of the essential elements of the crime of larceny by conversion was not established at the trial, this being the delivery of property.
Justice FEAD writing the majority opinion in People v. Doe, alias Meyer (1933), 264 Mich. 475, 481, discusses the elements of the offense of larceny by conversion.
"The offense is neither common-law larceny nor embezzlement, but is one of the crimes provided by statute law to occupy the no-man's land surrounding the offenses against property at common law. It is not to be tested by the common-law rules of larceny or embezzlement, nor, of course, by the implications of names, such as `larceny by embezzlement,' sometimes given it for convenient references, but its elements are to be found in the statute itself. CL 1929, § 17128, permitting prosecution `for the crime of embezzlement' to be brought in the jurisdiction of the receipt of goods or their proper place of return is not applicable because the offense under consideration is made `larceny' by legislature fiat.
CL 1948, § 762.10 (Stat Ann 1954 Rev § 28.853). — REPORTER.
"The crime has two elements, (1) delivery of property, and (2) its embezzlement, fraudulent conversion, or concealment. The character of the delivery, whether induced by legal or wrongful means, is not an element. The gist of the offense is the conversion."
The majority opinion of Justice FEAD was quoted in People v. Franz (1948), 321 Mich. 379 at p 386.
The record in this cause is replete with matters extraneous to the question properly before the Court. The emotion of this trial is disclosed from a complete reading of this record and indicates that the exhibit (the check) was not introduced in evidence.
The testimony in the instant case is silent on the delivery of property ($250) by the complainant to defendant Wilson. The testimony of the complainant indicates only that he and the defendant indorsed the check and that he left it in the possession of Mr. George Lamb, an employee of the loan company. Complainant did allude to a check that was to be payable to the defendant. The complainant did not testify that he personally gave the defendant any cash, property, or thing of value. Mr. Lamb of the loan company testified that he could not say who received the check as he did not close this transaction. Another witness for the people, James Lowell who was silent on the question of delivery of the property on direct examination, shed no greater light on the subject on cross examination when he indicated he saw they were passing something but didn't know whether it was money or what. The testimony of people's witness Sam Floyd has no probative value on the question of delivery of the property.
The lower court did not consider the statements made under oath by Earl R. Moore, detective-lieutenant of the Detroit police department, assigned to the office of the prosecuting attorney for Wayne county. The lower court record reads as follows:
" The Court: Well, that may be true but there is no testimony here, under oath, by anybody, particularly by the defendant. The police officer is just repeating a claim that the defendant made, but that couldn't be considered as testimony. It is not given under oath and at the most is hearsay."
It is our opinion that there is not sufficient competent testimony to substantiate a verdict of guilty and, further, that there is no merit to defendant's other allegations of error.
Reversed.
LESINSKI, C.J., and BURNS, J., concurred.