*1 MAST PEOPLE v 4, 1982, Rapids. No. 60255. Submitted November at Docket Grand Decided June 1983. Mast was convicted of welfare fraud of an amount in Warren following Court, jury trial in Eaton Circuit $500 excess of trial, sworn, Deming, jury E. J. At after the was Hudson that, quash moved to the on defendant information the basis county department charging him with failure to tell the of "changes in about his circumstances which social services relief’, the need for the information was consti- would decrease apprise tutionally in that it failed the infirm charge against him. The motion was denied. appeals. Held: Defendant made, appellate quash timely 1. the motion to was not While proper the if the failure review the denial of review is injustice. result in manifest motion would information, language language the while in the of 2. The of statute, apprise the was the defendant of the not sufficient mandated, charges against since the him. Reversal nature of to inform the defendant the of the information failed thereby in a for resulted of the factual basis the and informed of constitutional to be denial of defendant’s him. support claim that he was 3. The record fails to by unfairly prejudiced that the trial court of the fact reason jury the court could deter- had before so that him stand by any juror reason mine knew whether reading to the twice. of the information Reversed. Mackenzie, P.J., hold that manifest dissented. She would injustice defendant indicated has not shown in that been arraignment charge, waived
he the substance of understood amended neither an on the moved for in Headnotes Points References 2d, seq. [1, Appeal 545 et Am and Error § Jur 5] 2d, 441. Am Criminal Law Jur §§ [2-5] 2d, 69.§ Jur and Informations 41 Am Indictments Mast being surprised particulars made no claim nor a bill charge. would hold She basis of as to the factual misled or that, appel- showing injustice, of manifest of a the absence failure of defendant precluded reason of the review is late *2 timely quash fashion. bring in a to the motion Opinion op the Court Preserving — — Motion To Quash and Information 1. Indictment Appeal. — Question timely raised after quash is not when an information to A motion sworn; Apepals denial will reverse the jury of the Court is timely only to correct quash not made which was motion to of a 28.1016). (MCL 767.76; injustice MSA manifest — — Suffi- Law Constitutional Information 2. Indictment and ciency Informations. of Criminal informed to be has the constitutional defendant A criminal him; against an accusation cause of the the nature and identify sufficiently of the offense the nature information must charge acquittal would bar of the or that conviction so charge offense and must subsequent the same for the character of notify nature and of the the defendant prepare as to enable him he is so with which crime 20). (US Const, VI; art § Am Const his defense Sufficiency — of Criminal Infor- and Information 3. Indictment mations. generally using language are of the statute Informations apprise of the a criminal sufficient considered him; however, being brought against where the lan- charges general the statu- guage such that is in nature of the statute language out its elements tory the crime or set does not define legal merely language forth a the statute sets where the conclusion, with set forth the the information must specificity apprise nature the defendant sufficient being charged. criminal act Sufficiency — — Welfare Fraud 4. Information Indictment Informations. of Criminal report to the charging a defendant failed An information "changes department in his circumstances services of social relief’, using the while for would decrease the need which statute, constitutionally insuffi- fraud is of the welfare apprise of the nature cient to (MCL 16.460[2]). 400.60[2];MSA by Mackenzie, P.J. Sufficiency — 5. Indictment and Information of Criminal Infor- Preserving — — mations Motion To Quash Question. quash timely brought A motion to not where it is made at trial sworn; after the has been the denial a trial court of an untimely quash injustice motion to does not result manifest arraignment where the defendant waived on the charges, indicated that he understood the made no motion for particulars, an amended information or a bill of never claimed surprised that he was or misled as to the factual basis of the (MCL charge against him and never moved for a continuance 28.1016). 767.76; MSA Frank J. Kelley, Attorney Louis J. General, Caruso, Paul F. Berger, Prose- General, Solicitor and C. Sherman cuting Mowbray, Assis- Attorney, tant Prosecuting Attorney, people.
Stiles, Stiles), Fowler & Tuttle R. (by Charles defendant. *3 Mackenzie, P.J.,
Before: and R. M. Maher Jr.,* Simon, C. W. JJ.
Per Curiam. Defendant was convicted of "wel- fraud”, 400.60(2); fare 16.460(2), MCL MSA after a trial. Sentenced to years probation, five he appeals right.
Defendant contends that
the trial court
erred
denying his motion to quash the information. The
motion,
sworn,
raised after
the jury was
was not
timely.
767.76;
MCL
MSA 28.1016. We
re
may
verse,
therefore, only to correct a
injus
manifest
Collins,
tice. People
v
131;
380 Mich
156 NW2d
Laslo,
People
v
(1968);
566
78
Mich
Reed,
People v
(1977);
NW2d 448
App 696;
lv
(1970).
NW2d 303
den
Mich 769
Defendant
argues
the information
should
*
judge, sitting
Appeals by assignment.
Circuit
on the Court of
People
Mast
apprise
it did not
quashed because
have been
him. The infor-
charges against
sufficiently
the defendant
mation
continuing obliga-
"did,
imposed
a
being
person
with
a
County Department
the Eaton
supply
tion
changes in
concerning
his
Social Services
relief
decrease the need for
which would
application under PA
receiving
on his own
while
relief
amended,
1939,
neglect
or refuse
submit
280 of
as
No
department
such aforementioned
to said
neglect
of such
granted as a result
the amount of relief
more; Contrary to Sec.
being
or refusal
400.60(2),
$500.00
16.460(2).”
1970,
amended;
MSA
C.L.
as
upon
not
called
to defend
An accused shall
be
he was not
a
of which
against
himself
Michigan
Constitution
apprised.
the ac-
prosecution,
"In
criminal
provides:
every
* * *
informed of
right
to be
cused shall have
* *
1963,
of the accusation
Const
the nature
addition,
20. In
the "Sixth and Fourteenth
art
§
to know
give
right
a defendant
Amendments
the accusation
the nature
and cause of
Jones,
379, 388;
Ora
him”.
395 Mich
(1973).
grounded
principle
NW2d 461
process
constitutional
of due
"Does it the defendant subsequent acquittal that his will bar a conviction or *4 offense; notify it him of same does which he is nature and character of the crime with charged prepare his defense so as to enable according pronounce judgment permit the court to Weiss, App Div People v 252 of the case?” 126 Mich 658 662 468; grounds 300 255 NYS rev’d on other (1938), applied People 276 12 514 in NY NE2d v (1973). Adams, 222, 242-244; 389 Mich NW2d The in present charged case language in the largely statute. Glazier, People v Usually, this is sufficient. 528, 537; rule, NW .582 however, exception. Supreme not without As the Maki, v 455, 473; People Court stated in 245 Mich (1929): NW "Both in the State it and elsewhere is the rule that generic general where a statute uses terms de- offense, scribing define an does not elements, crime or set out all its essential charge legal or where a language in the of the statute a mere conclusion, alleges an information which sufficient, crime the words of the statute is not but a particular more is necessary.” statement facts provision of the welfare fraud statute under which defendant was describes the offense in general terms. The case law indicates that a general term in a statute is one that does not particular disclose the proscribed. acts In Maki, supra, defendant, charged with involun- tary manslaughter, was convicted of the lesser offense, included negligent homicide. The Court concluded that: * * * "Negligence general is a word. It has not such significance charges, concrete in the it * * * general understanding, a definite act or omission. requires particular statement of facts to disclose its [I]t case, given elements in a specific negli- and the acts of gence should be stated in an information.”
Maki, supra, p 473.
In People Westerberg,
265 NW
*5
People
v Mast
Opinion of the Court
charged with break-
the defendant was
489
ing
entering
"felony”.
to commit a
with intent
statutory
that
term "fel-
concluded
The Court
general
ony”
and that the information
was a
word
particular
felony the defendant
must
intended to
contrast,
In
the Court has
commit.
"prize-fighting”
statutory term
was
held
require specification
general
not so
particular
as
"it
a term of
involved because
acts
very employment
use,
and the
common
People Taylor, 96
meant”.
indicates what is
word
576, 578;
Brown, in a similar the defendant was selling position. Brown was wth alcoholic beverages compliance state’s while not in with this regulating intoxicating liquors. statute the sale of information, however, failed to indicate provisions comply. The with which he had failed Supreme quashing Court, con- cluded: is in no prosecution "In the instant defendant] particular [the in which
way manner or informed as 126 people comply fully the provisions claim he failed to with the only specification
of the cited act. Not is such trial, preparation it essential but also protection being placed affords in of record from twice jeopardy for the same offense.” supra, p 4. Similarly, the defendant here needed to be in- *6 particular formed of the change changes or in his that the prosecution attempt would Moreover, it prove. is irrelevant the defen- dant may change have known the in his circum- stances the in prosecutor had mind: "It say, possibly might will not do to as be said case, clearly instant that the accused knew what offense having he was with committed. He is entitled proceeded against to be with under an information which degree certainty specifies particular a fair charge against made him and scope which fixes the prosecution.” Id. We conclude that the information did not suffi- apprise defendant ciently of the him, him depriving process of due of law. To convict a defendant who has deprived been of such fundamental is a manifest injustice. The is entitled to have the information quashed and his conviction reversed.
Defendant’s remaining claims of error are with- out merit. The trial judge did not unfairly preju- dice defendant by standing up before the jury. judge asked defendant to stand so that he could determine whether him. any juror knew Nor did the trial judge unfairly prejudice defendant by reading the information to the jury twice. The judge made it clear charge was no evi- guilt. dence of
Reversed. v Mast by Mackenzie, P.J. (dissenting). respectfully P.J. I dis- Mackenzie, preliminary sent. Defendant waived a examina- underlying tion, at which the facts necessarily would have been disclosed. Defendant arraignment also waived in circuit court on the information, and the circuit court file contains a signed by document both defendant and his coun- following representation: sel which includes the undersigned "The attorney hereby acknowledge that defendant has copy received a information, has it explained read had read or to the defendant, understands the substance charge, Arraignment and waives Circuit Court open court.” added.) (Emphasis pretrial statement in the circuit court file following contains the statement: hereon, "Prosecutor will list following which he proposes to offer at trial: (available "a. All physical inspection exhibits defense upon request) counsel written Redetermination *7 form; of Eligibility Payroll checks; State Michigan of warrant; Treasurer’s Report; Document Examiner Village of Sunfield Employment/Payroll Records”. Even if defendant and his counsel did not bother actually proposed exhibits, examine the the list clearly changed that indicates the to which the information refers involve defen- employment Village dant’s with the of Sunfield. pretrial At the conference, counsel acknowledged the trial court’s statement that there were no motions to be resolved before trial. quash Defendant’s motion to the information was and was trial, made at sworn, after the was untimely. therefore 767.76; 28.1016; MCL MSA People Schultz, 114, 85 116-117; 293 NW App 658 126 Mich by Mackenzie, P.J. Hawkins, 486; 64 People
(1891); 106 Mich quash motion to was No written NW filed, and, oral motion was when defendant’s ever that he had re- made, complained prosecutor the requested never that no notice. Defendant ceived amended, for a never moved be the information for a more definite statement particulars bill in any that he was charge, never claimed misled as to the factual basis surprised or way moved for the continuance charge, and never if he 767.76; MSA 28.1016 would allow which MCL in fact misled. was that defendant knew the foregoing shows against him and that charge
factual basis of the
prosecutor
and the
led the trial court
no problem
before trial
that
there was
believe
suggests
The record
with the information.
quash
the motion to
the informa-
making
delay
tactic.
dilatory
tion was a deliberate
Brown,
relies on
majority
(1941),
4;
proposition
NW
knowledge
actual
of the factual basis
charge against
him is irrelevant
to whether
the information
identifies
However,
process.
him to afford him due
quash
motion to
timely
defendant made a
the information.
In Serra v 204 US 27 S Ct L Ed 571 on complaint which criminal conviction was based omitted an essential element of the crime. The Court never- Supreme theless held that defendant had not been denied process, due refused though even the lower court be- complaint, consider sufficiency Serra cause timely objection. defendant made no process shows that defendant was not denied due *8 ma- presented under the circumstances here. The v Mast by Mackenzie, P.J. that, no defendant made states because jority re- may we timely objection a manifest On this injustice. to correct only verse record, injustice. I no manifest discern supra, p the Court stated that a
In protect essential defen information correct being placed jeopardy from twice dant however, assuming, Even same offense. must be resolved on the jeopardy double
claim of record, on the entire rather than to remand 'the here would be appropriate remedy See of the information. case for amendment 135, 149, fn v Kyllonen, NW2d People Cherry, NW2d
I affirm. would