269 N.W.2d 694 | Mich. Ct. App. | 1978
PEOPLE
v.
BERRY
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Doyle A. Rowland, Prosecuting Attorney, and Richard L. Lee, Jr., and Thomas C. Panian, Assistant Prosecuting Attorneys, for the people.
Durance & Rhead, for defendant on appeal.
Before: ALLEN, P.J., and CYNAR and D.R. FREEMAN,[*] JJ.
PER CURIAM.
Defendant was convicted by a jury of conspiring to utter and publish a forged instrument, MCL 750.157a; MSA 28.354(1), MCL 750.249; MSA 28.446, on February 24, 1977. He was sentenced to 3 to 14 years in prison and now appeals of right.
At trial it was first shown that on March 11, 1976, someone passed a forged check. The key prosecution witness, Nadine Walmsley, was then called. She was allegedly defendant's accomplice and coconspirator in the charged offense, but had *607 been granted immunity from prosecution in exchange for her testimony. Walmsley testified as to how she assisted defendant in passing a forged check on March 11, 1976, as well as on other dates during the preceding three months.
On appeal, defendant contends that he cannot be convicted of a conspiracy charge where his sole alleged coconspirator received immunity from prosecution. Defendant reaches this conclusion by analogy from cases which have held that where all but one coconspirator is acquitted, the remaining coconspirator cannot be convicted on a conspiracy charge. People v Alexander, 35 Mich App 281; 192 NW2d 371 (1971). See generally, Anno: Prosecution or Conviction of One Party to Alleged Conspiracy as Affected by Disposition of Case Against Other Parties, 91 ALR2d 700. This result is based on the fact that a conspiracy is a partnership in criminal purposes that requires more than one conspirator. There is no such thing as a one-man conspiracy, and once all alleged coconspirators are acquitted, what would remain would be a one-man conspiracy. People v Alexander, supra, at 282; People v Atley, 392 Mich 298, 310; 220 NW2d 465 (1974).
Defendant's analogy is not valid, however. When alleged coconspirators are acquitted, a finding of not guilty of the charged conspiracy has been made. When alleged coconspirators are granted immunity (or when they are unavailable for prosecution for some reason), no determination as to their guilt has been made. A grant of immunity is not inconsistent with guilt. The instant defendant may still be convicted despite his sole codefendant's immunity from conviction. This holding is in accord with the decision of other jurisdictions which have passed on similar situations. See Anno: *608 Prosecution or Conviction of One Party to Alleged Conspiracy as Affected by Disposition of Case Against Other Parties, 91 ALR2d 700, 722.
Defendant also attacks the actual testimony of Walmsley, the coconspirator. Walmsley testified to other instances when she and defendant passed bad checks. Defendant claims such testimony was improper, but we find that it fell squarely within the similar acts statute, MCL 768.27; MSA 28.1050. The testimony showed a similar method of operation over a period of time and strongly supported the conspiracy charge. The evidence was quickly presented and not belabored by the prosecution. Defendant also contends that the immune testimony of an accomplice-conspirator is suspect and should be safeguarded by a cautionary instruction. The short answer to this contention is that the court did give such an instruction when it gave CJI 5:2:03 almost verbatim.
The final issue concerning defendant's immunity-clad accomplice was whether she had the intent necessary for her to be a coconspirator to uttering and publishing a forged instrument. The record reveals that Walmsley herself forged the endorsement on the check before cashing it. From this, it can be inferred that she was involved in uttering and publishing a check she knew to be false and that she did so with the intent to defraud.
In another issue on appeal, defendant claims that a typewriter which was introduced into evidence was seized pursuant to a search warrant unconstitutionally based on stale and unreliable information. The typewriter was seized from defendant's residence, and expert testimony indicated that it could have been the typewriter used to type the forged check. The search warrant *609 (issued on April 1, 1976) was based on information from Walmsley that she had seen defendant use a typewriter in his apartment to prepare forged checks in January, 1976, and that she had been involved in a series of other forged check-passings through March, 1976. This information indicates a continuing criminal enterprise which would give probable cause to believe that the typewriter was still in defendant's apartment, and a warrant could properly issue under MCL 780.651; MSA 28.1259(1). The fact that the warrant was further supported by hearsay information from another person whose credibility may not have been established becomes irrelevant in light of the adequate support for the warrant given by Walmsley.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
