People v. Covington

¶1(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.

¶2A 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: *88An information must be specific for two reasons: it affords the defendant due notice of the charges against him and protection against double jeopardy should he be retried. People v Brown, supra; People v Girardin, 1 Mich 90, 91 (1848). However, despite these important interests, a defendant must usually object to the deficiencies in an information before trial. MCL 767.76; MSA 28.1016; People v Southwick, 272 Mich 258; 261 NW 320 (1935); People v Swindlehurst, 120 Mich App 606; 328 NW2d 92 (1982), lv den 417 Mich 900 (1983). The reason behind this requirement is clear — a defect in an information can usually be cured if the objection is raised before trial. See United States ex rel Burgess v Johnson, 323 F Supp 72, 74 (ED Mich, 1971). Permitting objection after trial has begun (when jeopardy has attached) would permit a defendant to "sandbag” the court (often on little more than a technicality which has little to do with the defendant’s actual defense). See People v Sims, 257 Mich 478, 481; 241 NW 247 (1932).

*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).

¶3*88However, appellate courts will reverse a conviction in two situations although a defendant has failed to raise a timely objection: where the information failed to grant the circuit court jurisdiction, People v Calvin, 60 Mich 113, 119-120; 26 NW 851 (1886); United States v Leach, 291 F 788 (ED Mich, 1923); 42 CJS, Indictments and Informations, § 307, and where manifest injustice would otherwise result. People v Laslo, 78 Mich App 257, 261-262; 259 NW2d 448 (1977).

¶4In 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.

¶5*89Defendant was charged with attempting to obtain money over $100 by false pretenses. The information averred that the defendant claimed that he "could procure the dismissal of certain criminal charges and obtain a sentence of probation on other criminal charges then pending against the complainant … if complainant would pay a substantial sum of money”. It alleged, in other words, that defendant claimed that payment of the money was a prerequisite for obtaining both the dismissals and the sentence reduction. Defendant now argues that the false representation alleged in this information merely charged misrepresentation of some future event or fact rather than of an existing or past event, as required by law. People v Cage, 410 Mich 401; 301 NW2d 819 (1981); People v Widmayer, 265 Mich 547, 550; 251 NW 540 (1933). I disagree with defendant; this representation concerns an existing fact, and in this respect, charges a crime.

¶6The 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 *90"did attempt to … defraud … by a false pretense”. In essence, this information merely failed to identify with sufficient specificity the particular false pretense used. Specificity is not a jurisdictional defect, and the failure to object waives the issue. Case v United States, 6 F2d 530 (CA 9, 1925); State v Puryear, 121 Ariz 359; 590 P2d 475 (1979); People v Jackson, 88 Cal App 3d 490; 151 Cal Rptr 688 (1978); State v Cooper, 169 Iowa 571; 151 NW 835 (1915); 41 Am Jur 2d, Indictments and Informations, §§ 299-301, 1065-1067; 42 CJS, Indictments and Informations, § 301, pp 1330-1331. In addition, I note that the information in effect charged defendant in the words of the statute. Such a charge is generally sufficient. People v Ochotski, 115 Mich 601; 73 NW 889 (1898). If defendant had truly been concerned about the lack of specificity in the information, he could have demanded a bill of particulars. Durland v United States, 161 US 306; 16 S Ct 508; 40 L Ed 709 (1896); People v Carriger, 37 Mich App 605; 195 NW2d 25 (1972), lv den 388 Mich 812 (1972); 41 Am Jur 2d, Indictments and Informations, § 303, p 1068.

¶7Finally, 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 *91of jurisdiction is distinct from those of due process and adequate notice.

¶8Defendant 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.1 The information charged (1) that he "was driving at an unreasonable and unlawful rate of speed, (2) that he was driving without having his car under control, (3) that he was driving on the highway while intoxicated, and (4) that he did wilfully, etc., drive his automobile against the automobile of said Larson in a reckless and careless manner and thereby caused the latter’s death”. 245 Mich 457. After finding that the evidence had not proven any of the first three allegations, the trial court instructed the jury that the prosecution claimed that the defendant had driven on the wrong side of the road. Because the last charge in the information was so extremely general that, in effect, the prosecution’s theory had been completely changed, manifest injustice was found despite no timely objection: "The State should not be permitted to lie in wait for an accused.” 245 Mich 474. In effect, the defendant was tried even though he did not know the charge against him.

¶9Because I believed that the information in Mast (On Rehearing), supra, was so vague (and thus resembled Maki) that I believed that the defendant *92could not have known and understood the nature of the fraud charges against him, I voted to reverse. However, like the majority, I do not find manifest injustice in the present case.

¶10Manifest 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,2 but his first appeal to this Court dealt with the sufficiency of the evidence at the preliminary examination. I cannot believe that defendant did not actually know the charges against him, and therefore cannot believe that he was prejudiced at trial.