People v. Elmer, 109 Mich. 493

People v. Elmer

109 Mich. 493 | Mich. | 1896

Grant, J.

(after stating the facts).

1. The undisputed facts in this case established the commission of the offense. It is idle to attempt to draw distinctions between professing to possess a power and pretending to exercise that power. This respondent did both. The precise point is decided in Penny v. Hanson, 16 Cox, Cr. Cas. 173. The English statute, under which conviction was had, provided that “every person pretending or professing to tell fortunes * * * shall be deemed a rogue and a vagabond.” 5 Geo. IV. chap. 83, § 4. The circular upon which the respondent was convicted stated that, “by the positions of the planets in the nativity, and their aspects to each other,” he was enabled to forecast future events. This circular had been issued in response to an advertisement as follows: “Wanted—Every one to have their own nativity cast yearly. Advice given, and astrological questions answered.” The court, in deciding the case, said: “No person who was not a lunatic could believe he [the respondent] possessed such power. * * * The advertisement and circular amounted to a pretending and profession to tell fortunes.” This language is especially applicable to this case. No sane, intelligent juror could come to any other conclusion than that reached by the circuit judge.

2. No intent was involved. The offense was a misdemeanor. In such cases, when the facts are admitted or are undisputed, it is the duty of courts to instruct juries that the facts proven constitute the offense. There was no question of fact for the jury to pass upon. The conclusion is one of law, and not of fact. Guilt follows, as a matter of law, when the facts are undisputed. This point is ruled by People v. Neumann, 85 Mich. 98, where this court said, speaking through Justice Morse :

“In this State, where a judge has directed a verdict of guilty, and the jury have followed such direction, and the facts are admitted or undisputed, and the only question is one of law, applied to such facts, a new trial will not be *497granted if the judge was right in his application of the law.”

3. As already stated, witnesses for the people had testified to specific acts of pretending to tell fortunes, for which some of them had paid. The defense requested the court to compel the prosecution to elect upon which one ■of these conviction was asked. The court refused. The ruling was correct. The offense was a continuing one, and any acts to sustain the general charge were admissible. But, if this were not so, the respondent was not prejudiced, because, aside from these specific acts, the advertisement itself constituted the offense.

The conviction is affirmed.

Montgomery, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.