People v. Cash

388 Mich. 153 (1972)

200 N.W.2d 83

PEOPLE v. CASH

No. 2 March Term 1972, Docket No. 53,237.

Supreme Court of Michigan.

Decided August 30, 1972.

Rehearing denied October 31, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas G. Plunkett, Prosecuting Attorney, and Dennis Donohue, Chief Appellate Counsel, for the people.

Hyman & Rice (by Robert Friedman, Stanley M. Weingarden, and Hanley M. Gurwin), for defendant.

T.G. KAVANAGH, J.

Defendant was convicted of perjury in connection with an Oakland County "one man" grand jury. He was charged on five *156 counts, count I of which was dismissed on motion during the course of the trial, and the jury found him not guilty on count III, but guilty on counts II, IV, and V. The Court of Appeals affirmed his convictions.

The counts in the information upon which defendant was convicted read as follows:

"COUNT II PERJURY

"On or about the fifth day of April, A.D. 1966, LONNIE C. CASH, upon his oath before the Honorable Philip Pratt, conducting the Judicial Inquiry ordered in the above cause, did feloniously, wilfully, corruptly and falsely swear, in that he answered, `No' to the following question asked him: `So you have never told anyone that there was any money set aside for you by the numbers men?', whereas in truth and in fact the said LONNIE C. CASH, on or about the seventh day of May, 1965, did tell one Thomas Bowles, in the presence of one Aaron Butler, that there was some money set aside for him by the numbers men, said statement being made at the William Beaumont Hospital located in the City of Royal Oak, Oakland County, Michigan, Contrary to Section 750.422 of the Compiled Laws of 1948: (M.S.A. Section 28.664). (Maximum penalty 15 years).

"COUNT IV PERJURY

"On or about the fifth day of April, A.D. 1966, LONNIE C. CASH, upon his oath, before the Honorable Philip Pratt, conducting the Judicial Inquiry ordered in the above cause, did feloniously, wilfully, corruptly and falsely swear, in that he answered, `No, sir', to the following question asked him by the Honorable Philip Pratt: `Have you ever given him (Ernest Wilson) any money after he had exercised his discretion, or judgment, on any matter that came to him as a Township Officer?', whereas, in truth and in fact, the said LONNIE C. CASH paid Ernest Wilson the sum of approximately $180 on each of two separate occasions; said money being paid to Ernest Wilson under an agreement, whereby he, as the Co-ordinator of the Royal Oak Township Police and Fire Departments, was to initiate *157 a program designed to increase the number of traffic tickets issued, and in return for this effect increase, he (Wilson) was to receive fifty cents per ticket from LONNIE C. CASH, Contrary to Section 750.422 of the Compiled Laws 1948: (M.S.A. Section 28.664) (Maximum penalty 15 years).

"COUNT V PERJURY

"On or about the fifteenth day of July, A.D. 1965, LONNIE C. CASH, upon his oath, before the Honorable Philip Pratt, conducting the Judicial Inquiry ordered in the above cause, did feloniously, wilfully, corruptly and falsely swear, in that he stated, `Trooper Aird has never brought before me a single prostitute, yet I have been in the car with him while prostitutes were present therein at late hours of the night. I speak with special reference to Roselyn Capers. He played with her intimately and said that he would get her one day. He never did', whereas, in truth and in fact the said LONNIE C. CASH was never in a State Police car with the said Roselyn Capers and Trooper John Aird, nor with Trooper John Aird and any other female person, Contrary to Section 750.422 of the Compiled Laws of 1948: (M.S.A. Section 28.664). (Maximum penalty 15 years)."

This appeal makes four assertions of error:

1. The perjury information should have been dismissed because the information was fatally defective for failure to allege the purported false swearing was material to the inquiry.

2. It was reversible error to deny defendant's counsel an opportunity to examine the grand jury testimony of Thomas Bowles.

3. An investigator for the grand jury may not testify before it.

4. There was inadequate corroboration of the testimony contradicting defendant's testimony.

Our decision on the second assertion of error regarding the availability of the transcript of the *158 grand jury testimony is controlled by People v Bellanca, 386 Mich 708 (1972).

We find no merit in the third assertion of error.

The trial judge, on a separate record, heard testimony and argument that Trooper Aird was employed by the grand juror. No evidence was adduced that Trooper Aird was paid by the grand juror, Oakland County or anyone other than the State Police. From all of the evidence before him the trial court concluded that Trooper Aird was not an employee of the grand jury. We are not persuaded this conclusion was clearly erroneous.

We are persuaded that the first and fourth assertion of error do have merit, however, and require reversal of defendant's conviction.

Regarding the issue of whether there must be an averment of materiality of the allegedly false swearing, we are satisfied the Court of Appeals incorrectly stated the law.

That Court held that People v Kaplan, 256 Mich 36 (1931), apparently abandoned Michigan's long standing requirement that materiality of the false swearing to the matter in question must be alleged or it must clearly appear so from the statements alleged to be false. See People v Collier, 1 Mich 137 (1848); Hoch v People, 3 Mich 552 (1855); and People v Vogt, 156 Mich 594 (1909).

In People v Kaplan, supra, the indictment charged:

"`The said Jacob Kaplan * * * knowingly, falsely, wilfully, maliciously, corruptly, and feloniously did so depose and swear, well knowing that said testimony was false and * * * that the matters so sworn to before said grand jury were material matters.'"

The Court in that case approved an amendment to the indictment to charge specifically that the *159 perjured testimony was false and material, although it held that the indictment as first framed was sufficient.

Thus Kaplan did not change the rule enunciated in Collier, supra. The language approving the statutory form of indictment was dicta which in our view no fair reading would stretch to cover the point asserted by the Court of Appeals. We hold that the Collier rule is still an accurate statement of the law in Michigan, viz, materiality of the false swearing to the matter in question must be alleged or it must clearly appear so from the statements alleged to be false.

We test each count against this standard.

Count II.

The people established that defendant visited Thomas Bowles in a hospital and had a conversation with him which was recorded. Part of the recording allegedly showed that the defendant said in essence:

"I know the bag men in town, I know where the money goes. These people know that I know that, and they know deep in their heart that I am not involved. There's a little sack for me, but I don't get it, and I don't intend to."

In his grand jury testimony the following question was posed to defendant:

"So you have never told anyone that there was any money set aside for you by the numbers men?"

and he answered: "No".

Whether defendant ever told anyone that any money was set aside for him by the numbers men is not alleged to be material to the issue in question, to wit whether certain crimes, offenses or *160 misdemeanors have been committed. Neither does it appear so from the statement alleged to be false: "I never told anyone there was any money set aside for me by the numbers men."

The motion to quash should have been granted as to Count II.

Count V.

This count was based on defendant's statement to the grand juror:

"Trooper Aird has never brought before me a single prostitute, yet I have been in the car with him while prostitutes were present therein at late hours of the night. I speak with special reference to Roselyn Capers. He played with her intimately and said that he would get her one day. He never did."

At defendant's trial both Trooper Aird and Roselyn Capers denied the accusation.

The crimes, offenses and misdemeanors the judicial inquiry was to investigate did not include asserted sex offenses by Trooper Aird or anyone else. The defendant's statement that he was in the car with Trooper Aird at late hours of the night when prostitutes were present in the car and that on one occasion the Trooper played intimately with prostitute Roselyn Capers and said that he would get her one day is not alleged to be material to the issue in question nor does it appear to us to be so.

The motion to quash should have been granted as to Count V.

Count IV.

With respect to Count IV, however, we are satisfied that under the rule of Collier there is a sufficient charging.

Whether or not defendant paid Ernest Wilson money for the exercise of his discretion as the Co-ordinator *161 of the Royal Oak Township Police and Fire Departments was manifestly material to the issue in question. The truth or falsity of defendant's statement of denial would indeed be material to his guilt of perjury.

The motion to quash Count IV was properly denied.

The fourth assertion of error really states two problems: 1) the admissibility of the "traffic book" and 2) the sufficiency of the evidence including the "traffic book" to corroborate the testimony of Ernest Wilson.

Count IV was based upon defendant's testimony regarding payments to one Ernest Wilson, Township Traffic Co-ordinator.

The grand juror asked the defendant (according to the information):

"Have you ever given him (Ernest Wilson) any money after he had exercised his discretion, or judgment, on any matter that came to him as a Township Officer?"

Defendant answered "[n]o, sir."

Ernest Wilson subsequently testified that defendant agreed to pay him fifty cents per violation if the traffic tickets in Royal Oak Township were increased. He also testified that defendant made several payments to him of approximately $180 each in connection with traffic tickets.

Over defendant's objection, a "traffic book" which was kept under Wilson's order, which indicated some of the traffic tickets issued in Royal Oak Township during a certain time, was admitted into evidence.

This "traffic book" was a log of traffic tickets issued by the police department. It was the practice of the department to maintain this log at the time Mr. Wilson came into the department and it *162 continued while he was Co-ordinator. Entries were made by the officer issuing the ticket, the officer on the desk, or a clerk. Ernest Wilson testified that the defendant made payoffs to him at the rate of fifty cents per ticket and that the amount of the payoff was checked against the traffic book. It does not appear to us that it was clearly erroneous to admit the traffic book.

But though we find the traffic book admissible, we are compelled to agree with defendant that it is not adequate to corroborate Ernest Wilson's testimony that he paid the defendant as alleged.

Conceding the people's assertion that it reflects an increase in the number of tickets issued during the alleged payoff period, such fact does not tend to establish the bribe.

The law is well established that to sustain a conviction for perjury the prosecution must prove the falsity of the statement made by the defendant. This is done by establishing the truth of its contradiction. It is not enough simply to contradict it, but evidence of the truth of the contradiction must come from evidence of circumstances bringing strong corroboration of the contradiction. People v Kennedy, 221 Mich 1 (1922); People v McClintic, 193 Mich 589 (1916).

The increase in the volume of traffic tickets shown by the traffic book is ambivalent and standing alone cannot establish the corpus delicti.

"This testimony has its rightful place in the case, but it is as capable of being harmonized with the theory of innocence as with that of guilt. It has no direct bearing on the corpus delicti and is not of that force and character that the law requires of corroborating circumstances in perjury cases." People v Kennedy, supra, at p 4.

*163 There is no other evidence in the record to corroborate Wilson's charge and accordingly the conviction must be reversed.

Defendant discharged.

T.M. KAVANAGH C.J., and ADAMS, T.E. BRENNAN, and SWAINSON, JJ., concurred with T.G. KAVANAGH, J.

WILLIAMS, J., concurred in the result.

BLACK, J., did not sit in the case.