People v. Covington
People v. Covington
Concurring Opinion
(concurring). I am writing separately to clarify my position in People v Mast (On Rehearing), 128 Mich App 613; 341 NW2d 117 (1983). In Mast, I held that, although the defendant had failed to object to the information until his appeal, his conviction should nevertheless have been reversed. I believe the opposite result is warranted in the present case for the following reasons.
A defendant has the right "to be informed of the nature of the accusation”. Const 1963, art 1, § 20; People v Ora Jones, 395 Mich 379, 388; 236 NW2d 461 (1975). The information must, "with a fair degree of certainty”, specify the particular charge made against the accused. People v Brown, 299 Mich 1, 4; 299 NW 784 (1941). Therefore:
*87 "Such facts must be averred that, if admitted, would constitute the offense and establish the guilt of the accused. The elements of the offense must be so stated that he can know what he is to meet and prepare for his defense.” People v Quider, 172 Mich 280, 285-286; 137 NW 546 (1912).
In this case, defendant argues that reversal is required despite his lack of timely objection both because the information failed to charge a crime, and so failed to confer jurisdiction on the circuit court, and because it failed to adequately give him notice of the crime charged against him.
The information is nevertheless defective, however. It does not allege that this particular representation was false in fact: "It being, therefore, necessary to prove the falsity of the pretense, it is necessary to aver it in the information.” People v Reynolds, 71 Mich 343, 348; 38 NW 923 (1888). See, also, People v Behee, 90 Mich 356; 51 NW 515 (1892). This defect, however, does not prevent the information from conferring jurisdiction on the circuit court. The statute under which defendant was charged, MCL 750.218; MSA 28.415, forbids intentionally obtaining another person’s property through false pretenses. People v Lee, 259 Mich 355; 243 NW 227 (1932). The information in this case alleged the two elements necessary for attempted false pretenses — the intent to defraud and the false pretenses made. It stated that defendant
Finally, even if the body of the information did not sufficiently charge a crime, this information still conferred jurisdiction on the circuit court because it referred defendant to the statute under which he was charged, "sec. 750.218, MCL”. Although the statutory number has often been characterized as mere surplusage in the information, eg., People v Freedland, 308 Mich 449; 14 NW2d 62 (1944), by itself it sufficiently confers jurisdiction on the trial court. People v Igaz, 119 Mich App 172, 195; 326 NW2d 420 (1982), lv den 414 Mich 963 (1982); People v Corbeil, 77 Mich App 691, 701; 259 NW2d 193 (1977). The narrow issue
Defendant supplements his jurisdictional argument with a claim that the information was so defective that, despite his failure to object, manifest injustice will result if we do not reverse his conviction. As mentioned earlier, appellate courts will occasionally reverse a conviction for manifest injustice even where a defendant has not objected to a defective information. In People v Maki, 245 Mich 455; 223 NW 70 (1929), the defendant was charged with one count of involuntary manslaughter.
Because I believed that the information in Mast (On Rehearing), supra, was so vague (and thus resembled Maki) that I believed that the defendant
Manifest injustice will not be found merely because an important right has been violated. However, under some circumstances, it will be found even if a timely objection could have cured the defect. In the present case, it will be found only if defendant was so misled by the information (or the lack of specificity) that his defense was actually severely hampered. I cannot believe this occurred here. First, defendant does not allege this on appeal. Second, defendant is himself an attorney — he should have known about criminal discovery and his right to demand a bill of particulars. Finally, not only did he have a preliminary examination,
The defendant in Maki was convicted of negligent homicide.
The defendant in Maki waived his preliminary examination. 245 Mich 459.
Opinion of the Court
Defendant was convicted following a bench trial of attempting to obtain money over $100 by false pretenses, MCL 750.92, 750.218; MSA 28.287, 28.415. He was sentenced to one year of probation, nonreporting, and appeals as of right.
Defendant, an attorney, was assigned to represent an indigent defendant, Tyrone Lake, who was charged with four offenses. A pretrial negotiation was held on December 17, 1976, in. which Lake did not participate. The assistant prosecuting attorney told defendant that if Lake would plead guilty to two of the charged offenses 'within 30 days the other two would be dismissed. According to the testimony of Lake, defendant then approached Lake, who had been waiting in the hallway, and asked him how much he would pay to get the sentence on one of the charges reduced from life to
Defendant was originally charged with one count of obtaining money by false pretenses, MCL 750.218; MSA 28.415, and, after, a preliminary examination, he was bound over for trial on that charge. In response to defendant’s motion to quash the information, the trial court ordered that the information be amended to charge attempt to obtain money over $100 by false pretenses. Defendant then moved for rehearing on this motion to quash. The trial court granted the motion. The people then appealed to this Court. In an unpublished per curiam opinion, Docket No. 77-3988, decided October 17, 1979, this Court reversed and reinstated the information charging attempt. Defendant was then tried before the court sitting without a jury, resulting in his conviction.
Defendant contends that the amended information was defective because it did not charge a crime. The amended information stated that defendant:
*85 "Did attempt to obtain money of the value of over $100 designedly and with intent to defraud or cheat the above-named complainant by a false pretense, to wit: the representation that the claim or representation that he could procure the dismissal of certain criminal charges and obtain a sentence of probation on other criminal charges, then pending against complainant in Recorder’s Court Case No. 76-09788, if complainant would pay a substantial sum of money, contrary to sec. 750.218, MCL.”
Initially, we address the people’s argument that the "law of the case” doctrine bars our review of the above claim. In People v Stinson, 113 Mich App 719, 730; 318 NW2d 513 (1982), lv den 417 Mich 957 (1983), this Court said:
"Where a prior ruling of this Court concerns the same question of law in the same case, the doctrine of the law of the case applies and the prior ruling is controlling.”
The people maintain that our prior ruling reversing the trial court’s order quashing the information controls our decision on defendant’s challenge to the information on this appeal. We disagree. The question involved in the earlier appeal was whether the examining magistrate abused his discretion in binding the defendant over on the charge of obtaining money over $100 by false pretenses. This Court concluded that there was enough evidence to support the bind-over. The issue in this appeal, however, does not involve the bind-over. Rather, it challenges the information on its face without reference to the evidence received at the preliminary examination. As the Supreme Court said in People v Webb, 127 Mich 29, 31; 86 NW 406 (1901):
"The sufficiency of an information does not depend*86 upon the proofs. It either is or is not, upon its face, a good information”.
Inasmuch as the question of law resolved in the first appeal is not now before us, the law of the case doctrine does not apply.
Defendant desires that we reverse his conviction because the information failed to set forth facts which would, if proven, establish the falsity of the representation. We do not find that this omission rendered the information fatally defective or that reversal of defendant’s conviction is warranted.
A defect in an information may be amendable upon proper and timely objection by a defendant. MCL 767.76; MSA 28.1016; People v Fuzi, 46 Mich App 204, 209-210; 208 NW2d 47 (1973). The controlling question is whether such an amendment would be prejudicial to the accused. Fuzi, supra. A defendant is not prejudiced by an amendment to the information to cure a defect in the offense charged where the original information was sufficient to inform the defendant and the court of the nature of the charge. People v Mahone, 97 Mich App 192, 195; 293 NW2d 618 (1980); People v Corbeil, 77 Mich App 691; 259 NW2d 193 (1977). Here the information, containing a general averment that the representation constituted a false pretense, was sufficient to satisfy defendant’s due process right to be apprised of the charges he was called upon to defend against. Cf. People v Mast, 126 Mich App 658; 337 NW2d 619 (1983).
Since defendant’s objection to this defect in the information was not raised below, reversal would be appropriate only if a manifest injustice resulted from the defect. MCL 767.76; MSA 28.1016; People v Mast (On Rehearing), 128 Mich App 613; 341 NW2d 117 (1983); People v Laslo, 78 Mich App 257, 261-262; 259 NW2d 448 (1977). Because the
Defendant’s remaining arguments require little discussion. Other defects in the information cited by defendant were similarly not raised below and are hence not preserved for appeal. The representation set forth in the information was one of existing fact, as is correctly discerned in the concurring opinion. The trial court’s findings of fact were adequate, and defendant was found to have employed the same false pretense alleged in the information.
Affirmed.
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