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Perjury Committed in CourtsbyAdmin User- Tuesday, 14 February 2012, 08:02 PM

3COUNT No. 34

M.C.L.A. 750.422

MICHIGAN COMPILED LAWS ANNOTATEDCHAPTER 750. MICHIGAN PENAL CODETHE MICHIGAN PENAL CODECHAPTER LXII. PERJURY

Current through P.A. 1995, Nos. 1to 3, 5 to 8, 10 to 24, 26,28 to 58, and 61 to 100

750.422. Perjury committed in courts

Sec. 422. PERJURY COMMITTED IN COURTS--Any person who, being lawfullyrequired to depose the truth in any proceeding in a court of justice, shall commit perjuryshall be guilty of a felony, punishable, if such perjury was committed on the trial of anindictment for a capital crime, by imprisonment in the state prison for life, or any term ofyears, and if committed in any other case, by imprisonment in the state prison for not

more than 15 years.

HISTORICAL NOTES

HISTORICAL AND STATUTORY NOTES

1991 Main Volume

Source:P.A.1931, No. 328, Sec. 422, Eff. Sept. 18.C.L.1948, Sec. 750.422.C.L.1970, Sec. 750.422.

Prior Laws:R.S.1846, c. 156, Sec. 1.C.L.1857, Sec. 5820.C.L.1871, Sec. 7653.How. Sec. 9235.C.L.1897, Sec. 11305.C.L.1915, Sec. 14972.
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C.L.1929, Sec. 16563.

REFERENCES

CROSS REFERENCES

Specified criminal offense, money laundering, see Sec. 750.411j et seq.

Underground storage tank financial assurance, false statements, reports, claims, bids, orother requests for payment, prosecutions under other state laws, see Sec. 324.21548.Interception of wire or oral communications, authorization pursuant to order of federalcourt, admissibility of evidence, see Sec. 768.28a.Limitation of actions, see Sec. 767.24.

LIBRARY REFERENCES

1991 Main Volume

Perjury k6.

WESTLAW Topic No. 297.C.J.S. Perjury Secs. 22, 24.M.L.P. Perjury Sec. 1.

UNITED STATES SUPREME COURT

Perjured statements while under grant of immunity, use at subsequent prosecution forperjury, see U. S. v. Apfelbaum, U.S.Pa.1980, 100 S.Ct. 948, 445 U.S. 115, 63 L.Ed.2d250, on remand 621 F.2d 62.

M.C.L.A. 750.424



750.424. Subornation of perjury

Sec. 424. SUBORNATION OF PERJURY--Any person who shall be guilty ofsubornation of perjury, by procuring another person to commit the crime of perjury, shallbe punished as provided in the next preceding section.

HISTORICAL NOTES



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1991 Main Volume


Prior Laws:

R.S.1846, c. 156, Sec. 3.C.L.1857, Sec. 5822.C.L.1871, Sec. 7655.How. Sec. 9237.C.L.1897, Sec. 11307.C.L.1915, Sec. 14974.C.L.1929, Sec. 16565.

REFERENCES

CROSS REFERENCES

Specified criminal offense, money laundering, see Sec. 750.411j et seq.

LAW REVIEW AND JOURNAL COMMENTARIES

1991 Main Volume

Coercion by medical association to preclude availability of expert testimony in medicalmalpractice action. 58 Mich.L.Rev. 802 (1960).

LIBRARY REFERENCES

1991 Main Volume

Perjury k13.WESTLAW Topic No. 297.C.J.S. Perjury Secs. 4, 53, 54.M.L.P.

M.C.L.A. 750.426



750.426. Court reasonably believes perjury committed


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Sec. 426. PROCEEDING WHEN COURT REASONABLY BELIEVES PERJURY HASBEEN COMMITTED--Whenever it shall appear to any court of record that any witness orparty who has been legally sworn and examined or has made an affidavit in anyproceeding in a court of justice, has testified in such a manner as to induce a reasonablepresumption that he has been guilty of perjury therein, the court may immediately commitsuch witness or party, by an order or process for that purpose, or may take arecognizance with sureties, for his appearing to answer to an indictment for perjury and

thereupon the witness to establish such perjury may, if present, be bound over to theproper court, and notice of the proceedings shall forthwith be given to the prosecutingattorney.

HISTORICAL NOTES


1991 Main Volume


Prior Laws:R.S.1846, c. 156, Sec. 5.C.L.1857, Sec. 5824.C.L.1871, Sec. 7657.How. Sec. 9239.

C.L.1897, Sec. 11309.C.L.1915, Sec. 14976.C.L.1929, Sec. 16567.

ANNOTATIONS

NOTES OF DECISIONS

Indictment or information 1Presumptions and burden of proof 2

Questions of law or fact 3Variance 4

1. Indictment or information

In perjury indictment, there should be an averment that false allegations were material tomatter at issue, but all circumstances which rendered them material need not be set forth.U.S. v. Allen, D.C.Mich.1955, 131 F.Supp. 323.

It is essential, in an information for perjury, to specially negative the oath, or some part ofit a mere allegation that defendant swore falsely to certain facts being insufficient.


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People v. Vogt (1909) 121 N.W. 293, 156 Mich. 594.

Except where the materiality of alleged perjured testimony sufficiently appears from theoath itself, the materiality of that part of the oath on which perjury was assigned shouldbe averred. People v. Vogt (1909) 121 N.W. 293, 156 Mich. 594.

That an information charged accused with perjury under a wrong section of the statutes

was immaterial, where the offense was fully alleged therein, and stated to be contrary tothe statutes in such case made and provided, since the reference to the section of thestatute was mere surplusage, and defendant was not misled thereby. People v. Lane(1900) 82 N.W. 896, 124 Mich. 271.

Where an indictment for perjury charged that defendant had sworn falsely in a trial forlarceny, and alleged that it was a material issue of such trial whether defendant had paidthe accused money on September 11, 1894, "at his place in M. township," and thatdefendant had testified, "I paid it on the 11th of September," it was sufficient to allege byinnuendo that defendant, by such testimony, meant that he had paid the accused moneyon September 11, 1894, it being for the jury to say whether such in fact was the meaning

of the testimony. People v. German (1896) 68 N.W. 150, 110 Mich. 244.

An allegation in an information for perjury "that it then and there, upon said examination,became a material question whether" certain matters of fact set forth were true, with theaverment that the respondent swore to them as being true, and that they were false, andthe necessary averments which render false swearing perjury, was held a sufficientaverment of materiality to the issue, and not to be ambiguous. Flint v. People (1877) 35Mich. 491.

An allegation in an information for perjury alleged to have been committed in swearing to

a bill in equity as to the materiality of the matter sworn to that it then and there became amaterial question in the bill of complaint and in the judicial proceeding whether, etc., waswholly insufficient and variant from the truth, where the bill was not one whoseallegations can be treated as evidence on the trial of the cause. People v. Gaige (1872)26 Mich. 30.

An information for perjury in the making of an affidavit in support of a motion in a pendingsuit which does not show that the affidavit was made to be used in any judicialproceeding, or that it was actually used, was fatally bad. People v. Fox (1872) 25 Mich.492.

The pleadings in the case in which the false oath is taken need not be set forth in theinformation. People v. Jones, 1869, 1 Mich.N.P. 141.

In a prosecution for perjury, all the facts necessary to show the materiality of the allegedfalse testimony must appear upon the face of the indictment. People v. Collier (1848) 1Mich. 137, 48 Am. Dec. 699.

2. Presumptions and burden of proof

Government has burden of proving beyond reasonable doubt falsity of testimony on


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which indictment is predicated. Kahn v. U. S., 1927, 20 F.2d 782.

3. Questions of law or fact

The materiality of false testimony as an element of perjury is for trial court to determine.U.S. v. Garvett, D.C.Mich.1940, 35 F.Supp. 644.

4. Variance

In an information for perjury in swearing falsely under an oath administered in a court ona jury trial, an allegation that the judge presiding, naming him, then and there hadauthority to administer the oath, was not an averment that the judge himself administeredthe oath, and would not exclude evidence that it was administered by the clerk or deputy.Keator v. People (1875) 32 Mich. 484.

Where an information for perjury in swearing falsely under a oath administered in a courton a jury trial alleges that the oath was administered at the trial of a cause fully identified,a variance of one day in the proofs from the time alleged as the day of the trial was notfatal. Keator v. People (1875) 32 Mich. 484.

M.C.L.A. 750.427


Current through P.A. 1995, Nos. 1to 3, 5 to 8, 10 to 24, 26,

28 to 58, and 61 to 100

750.427. Perjury trial securing and detaining papers

Sec. 427. SECURING AND DETAINING PAPERS, ETC., NECESSARY IN PERJURYTRIAL--If, in any proceeding in a court of justice, in which perjury shall be reasonablypresumed, as aforesaid, any papers, books, or documents shall have been produced,which shall be deemed necessary to be used on any prosecution for such perjury, thecourt may, by order, detain the same from the person producing them so long as may benecessary in order to their being used in such prosecution.

HISTORICAL NOTES


1991 Main Volume



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C.L.1929, Sec. 16568.

REFERENCES


Perjured statements while under grant of immunity, use at subsequent prosecution forperjury, see U. S. v. Apfelbaum, U.S.Pa.1980, 100 S.Ct. 948, 445 U.S. 115, 63 L.Ed.2d250, on remand 621 F.2d 62.

ANNOTATIONS

NOTES OF DECISIONS

Evidence 1

1. Evidence

In prosecution for perjury committed during bankruptcy proceeding, credit statement of

bankrupt partnership showing value of equity in property was admissible to show landcontract was not transferred as defendant testified. Jacobs v. U. S., 1929, 31 F.2d 568,certiorari denied 49 S.Ct. 483, 279 U.S. 869, 73 L.Ed. 1006.

Proof of perjury need not be more positive than that of any other criminal act, and hencea verdict of guilty will not be set aside, though the only evidence of the testimony onwhich the indictment was predicated was a transcript of the stenographic notes taken atthe trial, which was not shown to contain all the testimony, or to have been correctlytranscribed. People v. Dowdall (1900) 82 N.W. 810, 124 Mich. 166.

M.C.L.A. 750.478

MICHIGAN COMPILED LAWS ANNOTATEDCHAPTER 750. MICHIGAN PENAL CODETHE MICHIGAN PENAL CODECHAPTER LXX. PUBLIC OFFICES AND OFFICERS


750.478. Wilful neglect of duty


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Sec. 478. WILFUL NEGLECT OF DUTY--When any duty is or shall be enjoined by lawupon any public officer, or upon any person holding any public trust or employment,every wilful neglect to perform such duty, where no special provision shall have beenmade for the punishment of such delinquency, shall be deemed a misdemeanor,punishable by imprisonment in the county jail for not more than 1 year or by a fine of notmore than 500 dollars.

HISTORICAL NOTES


1991 Main Volume


Prior Laws:R.S.1846, c. 156, Sec. 25.C.L.1857, Sec. 5844.C.L.1871, Sec. 7677.How. Sec. 9259.C.L.1897, Sec. 11329.C.L.1915, Sec. 14996.C.L.1929, Sec. 16587.

REFERENCES

CROSS REFERENCES

Cruelty to animals, duty of public officer, see Sec. 750.52.Delivery of books to successor officer, damages, penalty, see Sec. 24.34.Enforcement of laws governing building construction, see Sec. 339.2411.Limitation of actions, see Sec. 767.24.Liquor law, see Sec. 436.1 et seq.

LIBRARY REFERENCES

1991 Main Volume

Officers and Public Employees k121.WESTLAW Topic No. 283.C.J.S. Officers and Public Employees Secs. 255 to 259.

ANNOTATIONS


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NOTES OF DECISIONS

Duty 1Sheriffs 2

1. Duty

Provision of Sec. 257.309 that police "may" be appointed examining officers concerning

applications for operator's and chauffeur's licenses imposed the mandatory duty uponDetroit police department to accept and carry out such function, and penalties for failureto do so would be found in Sec. 257.901 making it a misdemeanor for anyone to violatethe Code and in Sec. 750.478 relating to public officer's willful neglect of duty, but lack ofpersonnel or funds would be a matter of defense. Op.Atty.Gen.1951-52, No. 1550, p. 465.

2. Sheriffs

Undersheriff has same duty as sheriff to obey and enforce laws of state and failure toenforce the law or prevent a violation of which he is cognizant constitutes breach of that

duty. People v. Bommarito (1971) 190 N.W.2d 359, 33 Mich.App. 385.

Where statutes which former undersheriff allegedly violated were specifically mentionedin each count of information charging "fixing" of traffic violation tickets and complaints,conducting of lottery by deputy sheriffs with former undersheriff's knowledge, and formerundersheriff's encouraging deputy sheriffs under his supervision to solicit funds forpolitical purposes by sale of testimonial dinner tickets to finance campaign for reelectionof sheriff, if violations were proved, they would constitute a neglect of duty. People v.Bommarito (1971) 190 N.W.2d 359, 33 Mich.App. 385.

M.C.L.A. 765.25

MICHIGAN COMPILED LAWS ANNOTATEDCHAPTERS 760 TO 776. CODE OF CRIMINAL PROCEDURECHAPTER 765. CODE OF CRIMINAL PROCEDURE--BAILCHAPTER V. BAIL


765.25. Perjury in affidavit of justification penalty

Sec. 25. Any surety who shall swear falsely to any of the material facts set up in hisaffidavit of justification shall be deemed guilty of perjury and upon conviction thereof,shall be punished in accordance with the law in such case made and provided.

HISTORICAL NOTES



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1982 Main Volume

Source:P.A.1927, No. 175, c. V, Sec. 25, Eff. Sept. 5.C.L.1929, Sec. 17187.C.L.1948, Sec. 765.25.C.L.1970, Sec. 765.25.

Prior Laws:P.A.1926, Ex.Sess., No. 17, Sec. 6.

REFERENCES

CONSTITUTIONAL PROVISIONS

1982 Main Volume

For constitutional provisions relating to bail, see Constitutional Provisions under Sec.765.1.

CROSS REFERENCES

Perjury, see Sec. 750.422 et seq.

M.C.L.A. 752.11

MICHIGAN COMPILED LAWS ANNOTATEDCHAPTER 752. CRIMES AND OFFENSESLAW ENFORCEMENT


752.11. Upholding or enforcing the law duty of public officials

Sec. 1. Any public official, appointed or elected, who is responsible for enforcing orupholding any law of this state and who wilfully and knowingly fails to uphold or enforce

the law with the result that any person's legal rights are denied is guilty of amisdemeanor.

HISTORICAL NOTES


1991 Main Volume

Source:


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P.A.1966, No. 158, Sec. 1, Eff. March 10, 1967.C.L.1948, Sec. 752.11.C.L.1970, Sec. 752.11.

REFERENCES

CROSS REFERENCES

Public offices and officers, see Sec. 750.478 et seq.

ANNOTATIONS

NOTES OF DECISIONS

Construction and application 1

1. Construction and application

Misdemeanor statute prohibiting failure to uphold the law merely proscribed acts ofomission and did not include act of falsifying police report by defendant police officer, anact of omission. People v. Thomas (1991) 475 N.W.2d 288, 438 Mich. 448.

M.C.L.A. 752.12

MICHIGAN COMPILED LAWS ANNOTATEDCHAPTER 752. CRIMES AND OFFENSES

LAW ENFORCEMENT


752.12. Penalty

Sec. 2. Any person convicted of violating this act shall be punished by a fine of not morethan $1,000.00 or imprisonment for not more than 1 year, or both.

HISTORICAL NOTES


1991 Main Volume

Source:P.A.1966, No. 158, Sec. 2, Eff. March 10, 1967.C.L.1948, Sec. 752.12.C.L.1970, Sec. 752.12.


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M.C.L.A. 600.2907

MICHIGAN COMPILED LAWS ANNOTATEDCHAPTER 600. REVISED JUDICATURE ACT OF 1961CHAPTER 29. PROVISIONS CONCERNING SPECIFIC ACTIONS


600.2907. Malicious prosecution or action civil liability, penalty

Sec. 2907. Every person who shall, for vexation and trouble or maliciously, cause orprocure any other to be arrested, attached, or in any way proceeded against, by anyprocess or civil or criminal action, or in any other manner prescribed by law, to answer tothe suit or prosecution of any person, without the consent of such person, or where thereis no such person known, shall be liable to the person so arrested, attached orproceeded against, in treble the amount of the damages and expenses which, by anyverdict, shall be found to have been sustained and incurred by him and shall be liable tothe person in whose name such arrest or proceeding was had in the sum of $200.00

damages, and shall be deemed guilty of a misdemeanor, punishable on conviction byimprisonment in the county jail for a term not exceeding 6 months.

HISTORICAL NOTES


1986 Main Volume

Source:P.A.1961, No. 236, Sec. 2907, Eff. Jan. 1, 1963.C.L.1948, Sec. 600.2907.C.L.1970, Sec. 600.2907.

Prior Laws:R.S.1846, c. 107, Sec. 18.C.L.1857, Sec. 4519.C.L.1871, Sec. 6163.How. Sec. 7747.C.L.1897, Sec. 10388.

P.A.1915, No. 314, c. XX, Sec. 4.C.L.1915, Sec. 12740.C.L.1929, Sec. 14454.C.L.1948, Sec. 620.4.

REFERENCES

CROSS REFERENCES

Limitation of actions, see Sec. 600.5805.


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Misdemeanor, see Secs. 750.8, 750.9.


1986 Main Volume

Civil rights acts: Civil liability of state officials acting within their discretionary powers. 54Mich.L.Rev. 696 (1956).

False imprisonment: Annual survey of Michigan law 1972. Marcus L. Plant, 19 WayneL.Rev. 746 (1973).

Lawyer's duty to reject groundless litigation. 26 Wayne L.Rev. 1561 (1980).

Liability for instigation of police investigation or prosecution. 56 Mich.L.Rev. 1219 (1958).

Preventive detention. Bernard H. Baumrin, 19 Wayne L.Rev. 1067 (1973).

Torts--false imprisonment. Wallace H. Glendening, 16 Wayne L.Rev. 915, 921 (1970).

LIBRARY REFERENCES

1996 Interim Update

Forms.

Malicious prosecution, generally, see M.C.R.P. Dean, Sec. 46.01.

1986 Main Volume

Malicious Prosecution k65 to 69.C.J.S. Malicious Prosecution Secs. 108, 112 to 115.M.L.P. Malicious Prosecution Sec. 1 et seq.

ANNOTATIONS

NOTES OF DECISIONS

Governmental immunity 27In general 1

Admissibi lity of evidence 24Attorney fees, damages 21Burden of proof, probable cause 9Civil actions, probable cause 6Criminal proceedings, probable cause 7Damages 19-22Damages - In general 19Damages - Attorney fees 21Damages - Interest 22


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Damages - Treble and exemplary damages 20Defenses 18Elements of action, in general 3Evidence 23, 24Evidence - In general 23Evidence - Admissibility of evidence 24Exemplary damages 20Fact questions, in general 25

Instructions 26Interest, damages 22Jury questions 10, 25Jury questions - In general 25Jury questions - Probable cause, in general 10Legal questions, probable cause 11Limitation of actions 16Malice 12Persons liable, in general 15Pleading 8, 14, 17Pleading - In general 17

Pleading - Probable cause 8Pleading - Special injury 14Presumptions and burden of proof, damages 21.5Presumptions and burden of proof, probable cause 9

Prior proceeding 4Probable cause 5-11Probable cause - In general 5Probable cause - Civil actions 6Probable cause - Criminal proceedings 7

Probable cause - Jury questions, in general 10Probable cause - Pleading 8Probable cause - Presumptions and burden of proof 9Probable cause - Questions of law 11Punitive damages 20Purpose of law, in general 2Questions of fact, in general 25Questions of law, probable cause 11Special injury 13, 14Special injury - In general 13Special injury - Pleading 14

Treble and exemplary damages 20

1. In general

Defendant failed to state a cause of action in its malicious prosecution counterclaimsbrought against plaintiff under New York and Michigan law and based on allegations thatplaintiff had interfered with its property in filing multiple lawsuits, contacting defendant'slenders, protracting discovery, restraining its property, and generally threatening andcoercing defendant into submission, in that defendant failed to allege adequateinterference with its property and resulting injuries. Chrysler Corp. v. Fedders Corp.,D.C.N.Y.1982, 540 F.Supp. 706.


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Malicious prosecution actions are not favored or encouraged except in plain, compellingcases. Koski v. Vohs (1984) 358 N.W.2d 620, 137 Mich.App. 491, appeal granted,reversed 395 N.W.2d 226, 426 Mich. 424, rehearing denied.

Existence of action for malicious prosecution of civil proceedings has been recognized inMichigan only in circumstances where, consistent with English Rule, interference withplaintiff's person or property occurred. Friedman v. Dozorc (1981) 312 N.W.2d 585, 412

Mich. 1.

In Michigan, malicious prosecution is both common-law and statutory action. Drouillard v.Metropolitan Life Ins. Co. (1981) 310 N.W.2d 15, 107 Mich.App. 608.

If full and fair disclosure is not made, defendant may not escape liability for maliciousprosecution, even if grand jury returns indictment thus, return of indictment standingalone, will not establish probable cause for prosecution as would absolve defendant fromliability. Fort Wayne Mortg. Co. v. Carletos (1980) 291 N.W.2d 193, 95 Mich.App. 752.

Judgment obtained by insurer against plaintiffs for payments made by mistake aftercancellation of automobile policy was not the sort of judgment that warranted a clerk'scertification of unsatisfied judgment, and insurer's causing court clerk to file certificationof unsatisfied judgment would not support claim of abuse of process but was actionableas claim for malicious civil proceedings. Rowbotham v. Detroit Auto. Inter-InsuranceExchange (1976) 244 N.W.2d 389, 69 Mich.App. 142.

Tort of malicious prosecution has been expanded to include malicious civil proceedings.Rowbotham v. Detroit Auto. Inter-Insurance Exchange (1976) 244 N.W.2d 389, 69Mich.App. 142.

This section governing malicious prosecution does not create cause of action for abuseof process. Peisner v. Detroit Free Press (1976) 242 N.W.2d 775, 68 Mich.App. 360.

Correct cause of action for wrongful institution of a lawsuit is an action for malicious civilprosecution. Peisner v. Detroit Free Press (1976) 242 N.W.2d 775, 68 Mich.App. 360

An action for abuse of process or malicious prosecution must have as its heart themalicious, wilful disregard of rights, or intentionally injurious conduct, of defendant.particularly in attempting to subvert, processes of law. Rice v. Winkelman Bros. Apparel,Inc. (1968) 164 N.W.2d 417, 13 Mich.App. 281.

"Any other" within provision of this section that every person who shall cause or procureany other to be arrested, attached, or in any way proceeded against shall be liable fortreble damages refers to any other person, not thing, and applies only to criminal arrestand attachment of person, not to attachment of personal property. Leeseberg v. BuildersPlumbing Supply Co. (1967) 149 N.W.2d 263, 6 Mich.App. 321.

Action for malicious prosecution is strictly guarded and never encouraged except in plaincases. Renda v. International Union, United Auto., Aircraft and Agr. Implement Workersof America (1962) 114 N.W.2d 343, 366 Mich. 58.


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Malicious prosecution suits are not discouraged, in a proper case, but they are regardedwith jealousy and ought not to be favored but managed with great caution. Roblyer v.Hoyt (1955) 72 N.W.2d 126, 343 Mich. 431.

2. Purpose of law, in general

This section is intended only to reach those actions in which party brings suit againstperson who had instituted proceedings against current plaintiff in the name of another,

without the named person's consent, or in which there is no such person known. Camajv. S.S. Kresge Co. (1986) 393 N.W.2d 875, 426 Mich. 281.

This section authorizing trebling of damages in malicious prosecution action is intendedto punish defendant and not to compensate plaintiff, and applies to entire award ofdamages, including compensation for mental as well as physical injuries disagreeingwith Zmija v. Baron, 119 Mich.App. 524, 326 N.W.2d 908, LaLone v. Rashid, 34Mich.App. 193, 191 N.W.2d 98 King v. General Motors Corporation, 136 Mich.App. 301,356 N.W.2d 626. Camaj v. S.S. Kresge Co. (1985) 372 N.W.2d 359, 143 Mich.App. 604,appeal granted, reversed 393 N.W.2d 875, 426 Mich. 281.

Purpose of malicious prosecution statute (this section) is to permit person with validcommon-law cause of action to recover treble damages. Peisner v. Detroit Free Press(1976) 242 N.W.2d 775, 68 Mich.App. 360.

Action for malicious civil prosecution is directed against introduction of groundless suitsbrought merely to harass. Peisner v. Detroit Free Press (1976) 242 N.W.2d 775, 68Mich.App. 360.

Cause of action for malicious prosecution was developed as a means to resolve the

inherent conflict between an individual's interest in avoiding unjustifiable and oppressivelitigation of criminal charges and society's interest in effective law enforcement throughfull reporting of suspected criminal activity. Wilson v. Yono (1975) 237 N.W.2d 494, 65Mich.App. 441.

3. Elements of action, in general

Elements of malicious prosecution are criminal proceeding instituted or continued bydefendants against plaintiff, which terminated in favor of plaintiff, for which probablecause was lacking, and which was actuated by malicious motives. Raudabaugh v. Baley(1983) 350 N.W.2d 242, 133 Mich.App. 242 Markowicz v. Pappas (1980) 300 N.W.2d

713, 102 Mich.App. 1 Taft v. J. L. Hudson Co. (1972) 195 N.W.2d 296, 37 Mich.App.692 Belt v. Ritter (1969) 171 N.W.2d 581, 18 Mich.App. 495, affirmed 189 N.W.2d 221,385 Mich. 402.

Elements which establish malicious prosecution include present defendant institutingprior legal action against present plaintiff, prior action terminating in favor of presentplaintiff, present defendant lacking probable cause to bring prior action, and presentdefendant having acted maliciously in bringing prior action. Pauley v. Hall (1983) 335N.W.2d 197, 124 Mich.App. 255 LaLone v. Rashid (1971) 191 N.W.2d 98, 34 Mich.App.193.


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The elements of a cause of action for malicious prosecution are criminal prosecutioninstituted against plaintiff by defendant, termination in plaintiff's favor, absence ofprobable cause for criminal proceeding, and malice or primary purpose in bringing actionother than bringing offender to justice. Rivers v. Ex-Cell-O Corp. (1980) 300 N.W.2d 420,100 Mich.App. 824 Fort Wayne Mortg. Co. v. Carletos (1980) 291 N.W.2d 193, 95Mich.App. 752 Ringo v. Richardson (1979) 278 N.W.2d 717, 88 Mich.App. 684 Wilsonv. Yono (1975) 237 N.W.2d 494, 65 Mich.App. 441.

Failure to include all exculpatory facts is not adequate to sustain suit for maliciousprosecution. Payton v. City of Detroit (1995) 536 N.W.2d 233, 211 Mich.App. 375.

Elements of malicious prosecution are: a prosecution caused or continued by one personagainst another termination of the proceeding in favor of person who was prosecutedabsence of probable cause for initiating or continuing the proceeding and initiating orcontinuing the proceeding with malice or primary purpose other than that of bringingoffender to justice. Koski v. Vohs (1984) 358 N.W.2d 620, 137 Mich.App. 491, appealgranted, reversed 395 N.W.2d 226, 426 Mich. 424, rehearing denied.

An action for malicious prosecution requires proof that a prior proceeding terminated infavor of plaintiff, that prior proceeding was without probable cause, that there was maliceon part of defendant in instituting prior proceeding, and that there was a special injuryflowing directly from prior proceeding. Young v. Motor City Apartments Ltd. DividendHousing Ass'n No. 1 and No. 2 (1984) 350 N.W.2d 790, 133 Mich.App. 671.

Elements of malicious prosecution action are prior proceeding terminated in favor ofpresent plaintiff, absence of probable cause for those proceedings, purpose for bringingprior proceedings other than that of securing proper adjudication of claim, and injury,including special injury. Parisi v. Michigan Townships Ass'n (1983) 332 N.W.2d 587, 123

Mich.App. 512.

Apart from special injury, elements of tort action for malicious prosecution of civi lproceedings are prior proceedings terminated in favor of present plaintiff, absence ofprobable cause for such proceedings and malice. Friedman v. Dozorc (1981) 312N.W.2d 585, 412 Mich. 1.

Essential elements in action for malicious prosecution are fact of alleged prosecutionand that it has come to a legal termination in plaintiffs' favor and lack of probable causeon defendants' part to believe plaintiffs guilty of offense charged when defendantsinitiated prosecution and malice of defendants. Tomita v. Tucker (1969) 171 N.W.2d 564,

18 Mich.App. 559.

M.C.L.A. 750.157a

MICHIGAN COMPILED LAWS ANNOTATEDCHAPTER 750. MICHIGAN PENAL CODETHE MICHIGAN PENAL CODECHAPTER XXIV. CONSPIRACY


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750.157a. Conspiracy to commit offense or legal act in illegal manner penalty

Sec. 157a. Any person who conspires together with 1 or more persons to commit anoffense prohibited by law, or to commit a legal act in an illegal manner is guilty of thecrime of conspiracy punishable as provided herein:

(a) Except as provided in paragraphs (b), (c) and (d) if commission of the offenseprohibited by law is punishable by imprisonment for 1 year or more, the person convictedunder this section shall be punished by a penalty equal to that which could be imposed ifhe had been convicted of committing the crime he conspired to commit and in thediscretion of the court an additional penalty of a fine of $10,000.00 may be imposed.

(b) Any person convicted of conspiring to violate any provision of this act relative toillegal gambling or wagering or any other acts or ordinances relative to illegal gamblingor wagering shall be punished by imprisonment in the state prison for not more than 5years or by a fine of not more than $10,000.00, or both such fine and imprisonment.

(c) If commission of the offense prohibited by law is punishable by imprisonment for lessthan 1 year, except as provided in paragraph (b), the person convicted under this sectionshall be imprisoned for not more than 1 year nor fined more than $1,000.00, or both suchfine and imprisonment.

(d) Any person convicted of conspiring to commit a legal act in an illegal manner shall bepunished by imprisonment in the state prison for not more than 5 years or by a fine of notmore than $10,000.00, or both such fine and imprisonment in the discretion of the court.

HISTORICAL NOTES


1991 Main Volume

Source:P.A.1931, No. 328, Sec. 157a, added by P.A.1966, No. 296, Sec. 1, Eff. March 10, 1967.C.L.1948, Sec. 750.157a.C.L.1970, Sec. 750.157a.

REFERENCES

CROSS REFERENCES

Underground storage tank financial assurance, false statements, reports, claims, bids, orother requests for payment, prosecutions under other state laws, see Sec. 324.21548.



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1991 Main Volume

Dual conviction of aiding and abetting extortion and conspiracy to commit extortion doesnot violate double jeopardy. 61 U.Det.J.Urb.L. 505 (1984).

Overbreadth of conspiracy statute and proposed cure by revised criminal code. 14Wayne L.Rev. 819 (1968).

Proposed revision of Michigan Penal Code: Rejection of judicially developed principlesof justice in grading of homicide. Alan Saltzman, 60 U.Det.J.Urb.L. 507 (1983).

LIBRARY REFERENCES

1996 Interim Update

Comments.

Indictable offense at the common law, see M.P. vol. 11, Saltzman, Sec. 1.12.

1991 Main Volume

Conspiracy k28(1) to (3), 51.WESTLAW Topic No. 91.C.J.S. Conspiracy Secs. 47 et seq., 96.


Hearsay statements of coconspirator, use in determining existence of conspiracy and

defendant's involvement in it, see Bourjaily v. U.S., 1987, 107 S.Ct. 2775, 483 U.S. 171,97 L.Ed.2d 144.

ANNOTATIONS

NOTES OF DECISIONS

In general 2Abortion 12, 13Abortion - In general 12

Abortion - Instructions 13Acquittal or dismissal of coconspirator 41Admissibi lity of evidence, in general 50Admissions and confessions, evidence 52Agents of government as coconspirators 40Agreement 5.5Bankruptcy 14Bribery 15Civil rights deprivation 21Coconspirator's statement, evidence 53Completion of offense 8.5


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Concealing stolen property 31Conduct of counsel 56Confessions 46, 52Confessions - In general 46Confessions - Evidence 52Confrontation 48Conspiracy to defraud 16-19Conspiracy to defraud - In general 16

Conspiracy to defraud - Contracts and sales 17

Conspiracy to defraud - Indictment or information 18Conspiracy to defraud - Weight and sufficiency of evidence 19Continuing offense 9Contracts and sales, conspiracy to defraud 17Controlled substances, delivery or sale 20Defenses 47Delays 38Delivery or sale of controlled substances 20Deprivation of civil rights 21

Dismissal of coconspirator 41Dog fighting 22Double jeopardy 4, 5Double jeopardy - In general 4Double jeopardy - Wharton's rule 5Drugs, delivery or sale 20Elements of offense, generally 2.5Equal protection 3Evidence 19, 49-54Evidence - In general 49

Evidence - Admissibility, in general, 50Evidence - Admissions and confessions 52Evidence - Coconspirator's statement 53Evidence - Conspiracy to defraud, weight and sufficiency 19Evidence - Photographs 54Evidence - Weight and sufficiency, in general, 51Fair trial 45Forgery 33Fraud 16Gambling 23Government agents as coconspirators 40

Guilty plea 44Harmless error 59Immunity for coconspirator 42Included offenses 34Indictment or information 18, 35Indictment or information - In general 35Indictment or information - Conspiracy to defraud 18Informants and government agents as coconspirators 40Instructions 13, 57Instructions - In general 57Instructions - Abortion 13


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Intent 6Jurisdiction 62Knowledge 7Larceny 24Lesser included offenses 34Libel and slander 25Motor vehicle theft 26

Multiple conspiracies 36Murder 27Narcotics, delivery or sale 20New trial 60Objections 58Obstruction of justice 28, 29Obstruction of justice - In general 28Obstruction of justice - Weight and sufficiency of evidence 29Overt act 8Parties 39Perjury 30

Photographs, evidence 54Preliminary hearing or examination 43Prosecutorial misconduct 56Receiving and concealing stolen property 31Robbery 32Sale of controlled substances 20Search and seizure 37Sentence and punishment 61Slander 25Stolen property, receiving and concealing 31

Substantive offense distinguished 11Theft, motor vehicle 26Uttering and publishing forged instrument 33Validity 1Venue 63Weight and sufficiency of evidence 19, 29, 51Weight and sufficiency of evidence - In general 51Weight and sufficiency of evidence - Conspiracy to defraud 19Weight and sufficiency of evidence - Obstruction of justice 29Wharton's rule 5Withdrawal 10

Witnesses 55

1. Validity

This section was not overbroad by including within its scope expressions which fellwithin constitutional guarantees of free speech and association since this sectionrequired conspirators to intend to further, promote or cooperate in unlawful enterprisewhich State had power to regulate. People v. Cyr (1982) 317 N.W.2d 857, 113 Mich.App.213.


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2. In general

"Criminal conspiracy" is mutual understanding or agreement between two or morepersons, expressed or implied, to do or accomplish some criminal or unlawful act.People v. Hamp (1981) 312 N.W.2d 175, 110 Mich.App. 92 People v. Wright (1980) 298N.W.2d 857, 99 Mich.App. 801.

A "conspiracy" is not the commission of the crime which it contemplates, and neither

violates nor arises under the statute whose violation is its object. Braverman v. U.S.,U.S.Mich.1942, 63 S.Ct. 99, 317 U.S. 49, 87 L.Ed. 23.

Even if some conspirators are not members from inception of conspiracy, all arenonetheless bound by acts done in furtherance of conspiracy. People v. Meredith (1995)531 N.W.2d 749, 209 Mich.App. 403.

Fact that defendant, who did two overt acts in furtherance of conspiracy to delivercocaine, was romantically involved with another conspirator did not mean that defendantlacked ability to enter conspiracy. People v. Meredith (1995) 531 N.W.2d 749, 209Mich.App. 403.

"Conspiracy" is an agreement, express or implied, between two or more persons tocommit unlawful or criminal act. People v. Weathersby (1994) 514 N.W.2d 493, 204Mich.App. 98, appeal denied 528 N.W.2d 740, reconsideration denied 533 N.W.2d 318.

"Conspiracy" is agreement, express or implied, between two or more persons to commitunlawful or criminal act, proof of which may be established by circumstantial evidence.People v. Barajas (1993) 499 N.W.2d 396, 198 Mich.App. 551, application held inabeyance 503 N.W.2d 900, affirmed 513 N.W.2d 772, 444 Mich. 556.

"Conspiracy" is mutual agreement between two or more individuals to commit criminalact or to accomplish legal act through criminal means, and essence of conspiracy isagreement itself established by acts of the parties. People v. Buck (1992) 496 N.W.2d321, 197 Mich.App. 404, appeal den.(95566)appeal held in abeyance(93406) 498N.W.2d 742, appeal denied 498 N.W.2d 742, 442 Mich. 859, application held inabeyance 505 N.W.2d 577, application held in abeyance 505 N.W.2d 578, reversed inpart 508 N.W.2d 502, 444 Mich. 853, appeal denied 521 N.W.2d 607, appeal denied 521N.W.2d 607, 445 Mich. 937.

"No one man conspiracy" rule does not apply where conspirators are tried at same time

but before separate fact finders. People v. Jemison (1991) 466 N.W.2d 378, 187Mich.App. 90, appeal denied, reconsideration of order of 9/30/91 denied.

Where defendant and coconspirators were tried at same time but before separate factfinders, defendant's conspiracy conviction was not required to be vacated on ground thatcoconspirators were found not guilty. People v. Jemison (1991) 466 N.W.2d 378, 187Mich.App. 90, appeal denied, reconsideration of order of 9/30/91 denied.

A "conspiracy" is a combination of two or more persons, by some concerted action, toaccomplish an unlawful purpose, or to accomplish a lawful purpose by criminal orunlawful means. Rosenberg v. Rosenberg Bros. Special Account (1984) 351 N.W.2d


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563, 134 Mich.App. 342.

Conspiracy statute (this section) is bilateral, requiring proof of agreement between two ormore persons, rather than unilateral, allowing conviction without proof of suchagreement. People v. Anderson (1983) 340 N.W.2d 634, 418 Mich. 31.

A conspiracy is a separate and distinct offense from the offense which is the object of theconspiracy. People v. Braylock (1982) 324 N.W.2d 530, 118 Mich.App. 54.

M.C.L.A. 750.157v

MICHIGAN COMPILED LAWS ANNOTATEDCHAPTER 750. MICHIGAN PENAL CODETHE MICHIGAN PENAL CODECHAPTER XXIVA. FINANCIAL TRANSACTION DEVICES


750.157v. Making of false written statement with intent to defraud

Sec. 157v. A person who, knowingly and with intent to defraud, makes or causes to bemade, directly or indirectly, a false statement in writing regarding his or her identity or thatof any other person for the purpose of procuring the issuance of a financial transactiondevice, is guilty of a felony.

CREDIT(S)

1991 Main Volume

P.A.1931, No. 328, Sec. 157v, added by P.A.1987, No. 276, Sec. 1, Eff. March 30, 1988.

M.C.L.A. 750.215

MICHIGAN COMPILED LAWS ANNOTATEDCHAPTER 750. MICHIGAN PENAL CODETHE MICHIGAN PENAL CODECHAPTER XXXV. FALSE PERSONATION


750.215. False personation of public officer

Sec. 215. Any person who falsely assumes or pretends to be a sheriff, deputy sheriff,conservation officer, coroner, constable, police officer, or member of the Michigan statepolice, and shall take upon himself or herself to act as such, or to require any person toaid and assist him or her in any matter pertaining to the duty of a sheriff, deputy sheriff,conservation officer, coroner, constable, police officer, or member of the Michigan state


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police, or shall falsely take upon himself or herself to act or officiate in any office or placeof authority, shall be guilty of a misdemeanor, punishable by imprisonment for not morethan 1 year, or by fine of not more than $500.00.

CREDIT(S)

1996 Interim Update

Amended by P.A.1991, No. 145, Sec. 1, Imd. Eff. Nov. 25, 1991.

HISTORICAL NOTES


1996 Interim Update

1991 Legislation

The 1991 amendment deleted "justice of the peace," following "pretends to be a" and"the duty of a", inserted "or herself" and "or her" throughout, and substituted"imprisonment for not" for "imprisonment in the county jail not".

1991 Main Volume

Source:P.A.1931, No. 328, Sec. 215, Eff. Sept. 18.C.L.1948, Sec. 750.215.P.A.1957, No. 41, Sec. 1, Eff. Sept. 27.

C.L.1970, Sec. 750.215.

Prior Laws:R.S.1846, c. 156, Sec. 18.C.L.1857, Sec. 5837.C.L.1871, Sec. 7670.How. Sec. 9252.C.L.1897, Sec. 11322.C.L.1915, Sec. 14989.P.A.1925, No. 67.C.L.1929, Sec. 16580.

REFERENCES

CROSS REFERENCES

Abolition of Michigan state police and transfer of functions to department of state police,see Sec. 16.253.Limitation of actions, see Sec. 767.24.Name and insignia of certain organizations, penalty for wilful unauthorized use, seeSecs. 430.6, 430.55, 430.105, 430.151.


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Private detective certificates, shields, or badges, unauthorized use, see Secs. 338.830,338.836, 338.838.Weights and measures, impersonation of officers, see Sec. 290.630.

LIBRARY REFERENCES

1991 Main Volume

False Personation k1.WESTLAW Topic No. 169.C.J.S. False Personation Secs. 1, 2.M.L.P. Officers Sec. 6.

ANNOTATIONS

NOTES OF DECISIONS

In general 1Elements of offense 2Indictment or information 3

1. In general

C.L.1857, Sec. 5837, authorizing a criminal prosecution against a person taking onhimself to officiate in an office or place of authority, did not apply where in good faith andduring a real controversy as to the title the accused continued to act in an office to whichhe had been chosen. Hall v. People (1870) 21 Mich. 456.

2. Elements of offense

The crime of theft is not embraced in 18 U.S.C.A. Sec. 912, defining offense ofimpersonating United States officer, as impersonation need not be proved to establishlarceny, though both offenses may arise out of same transaction. Laing v. U.S., 1944, 145F.2d 111.

18 U.S.C.A. Sec. 912, penalizing false impersonation of United States officer may beviolated by mere impersonation with intent to defraud, as defined in that section, withoutproof that accused obtained money or property by deception. Laing v. U.S., 1944, 145

F.2d 111.

3. Indictment or information

Where information charged extortion and not impersonation of an officer and defendantwas not misled, defendant could not for first time on appeal charge that information wasduplicitous in that it charged false impersonation of an officer and a malicious threat toextort. People v. Parker (1943) 11 N.W.2d 924, 307 Mich. 372.

Under How. Sec. 9252, which made it a criminal offense for any person to falsely pretendto be a justice of the peace, sheriff, constable, or coroner, or falsely take upon himself to


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act or officiate in any office or place of authority, a conviction could not be had on aninformation charging defendant with assuming to be a member of the metropolitan policeforce of Detroit, without alleging that he undertook to act as such. People v. Cronin(1890) 45 N.W. 479, 80 Mich. 646.

M.C.L.A. 750.218

MICHIGAN COMPILED LAWS ANNOTATEDCHAPTER 750. MICHIGAN PENAL CODETHE MICHIGAN PENAL CODECHAPTER XXXVI. FALSE PRETENSES AND FALSE REPRESENTATION


750.218. False pretenses with intent to defraud

Sec. 218. Any person who, with intent to defraud or cheat, shall designedly, by color of

any false token or writing or by any false or bogus check or other written, printed orengraved instrument, by spurious coin or metal in the similitude of coin, or by any otherfalse pretense, cause any person to grant, convey, assign, demise, lease or mortgageany land or interest in land, or obtain the signature of any person to any writteninstrument, the making whereof would be punishable as forgery, or obtain from anyperson any money or personal property or the use of any instrument, facility or article orother valuable thing or service, or by means of any false weights or measures obtain alarger amount or quantity of property than was bargained for, or by means of any falseweights or measures sell or dispose of a less amount or quantity of property than wasbargained for, if such land or interest in land, money, personal property, use of such

instrument, facility or article, valuable thing, service, larger amount obtained or lessamount disposed of, shall be of the value of $100.00 or less, shall be guilty of amisdemeanor and if such land, interest in land, money, personal property, use of suchinstrument, facility or article, valuable thing, service, larger amount obtained or lessamount disposed of shall be of the value of more than $100.00, such person shall beguilty of a felony, punishable by imprisonment in the state prison not more than 10 yearsor by a fine of not more than $5,000.00.

HISTORICAL NOTES


1991 Main Volume

Source:P.A.1931, No. 328, Sec. 218, Eff. Sept. 18.C.L.1948, Sec. 750.218.P.A.1957, No. 69, Sec. 1, Eff. Sept. 27.C.L.1970, Sec. 750.218.

Prior Laws:


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R.S.1846, c. 154, Sec. 39.C.L.1857, Sec. 5783.P.A.1867, No. 164.C.L.1871, Sec. 7590.P.A.1879, No. 218.How. Sec. 9161.P.A.1895, No. 234.C.L.1897, Sec. 11575.

P.A.1915, No. 245.

750.279. Personal property fraudulent disposition

Sec. 279. FRAUDULENT DISPOSITION OF PERSONAL PROPERTY--Whenevermoney, or any goods, wares or merchandise or other personal property, shall bedelivered, committed or entrusted to, or put in charge of any person as agent with writteninstructions, or upon any written agreement signed by the party so instructed as agent, orsuch written instructions shall be delivered or such written agreement shall be made, atany time after delivery to such agent, of any money or goods, wares, merchandise, or

other personal property, which instructions or agreements shall express theappropriation, purpose, or use to which such money shall be applied, or the terms, modeor manner of the application or employment of such money, or which shall express ordirect the disposition or use to be made by such agent, of any goods, wares,merchandise or other personal property, so delivered or entrusted to such agent if theperson to whom any such money or goods, wares, merchandise or other personalproperty shall be so delivered, committed or entrusted, shall purposely and intentionallyapply, appropriate, dispose of, or use any such money or goods, wares, merchandise orother personal property in any other way or manner, or for any other purpose, use orintent, than such as shall be expressed in such written instrument or agreement touching

the same, the person or persons so doing, shall be guilty of felony.

HISTORICAL NOTES


1991 Main Volume

Source:P.A.1931, No. 328, Sec. 279, Eff. Sept. 18.

C.L.1948, Sec. 750.279.C.L.1970, Sec. 750.279.

Prior Laws:R.S.1846, c. 154, Sec. 36.C.L.1857, Sec. 5780.C.L.1871, Sec. 7587.How. Sec. 9158.C.L.1897, Sec. 11572.C.L.1915, Sec. 15317.C.L.1929, Sec. 16913.


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REFERENCES

CROSS REFERENCES

Computers, use to commit violation, see Sec. 752.796.

LIBRARY REFERENCES

1991 Main Volume

Embezzlement k11(1).

WESTLAW Topic No. 146.C.J.S. Embezzlement Sec. 11.

ANNOTATIONS

NOTES OF DECISIONS

Agent 2Jury questions 3Written agreements 1

1. Written agreements

A written instrument reciting the receipt of a sum of money "for 10 Moh.," meaning for 10

shares of stock of the Mohawk Mining Co. signed by a firm of brokers by their agent, wasa sufficient written agreement to fall within C.L.1897, Sec. 11572 (now this section),which provided that whenever money should be intrusted to any person as agent on awritten agreement signed by the person so intrusted as agent, expressing theappropriation to which the money shall be applied, if the person to whom the money wasintrusted should intentionally appropriate it in any other manner or for any other purposethan that expressed in the agreement, he would be guilty of a felony. People v. Ritchie(1906) 108 N.W. 747, 145 Mich. 440.

Where a receipt for money for a particular purpose was signed in the name of a firm ofbrokers, "Per R.," and R. assumed to act for the firm, for which he was bookkeeper, this

did not show an agreement between R. and the person from whom the money wasreceived within C.L.1897, Sec. 11572, which provided that whenever money shall bedelivered to any person on a written agreement, expressing the appropriation to whichthe money was to be applied, and the person should intentionally apply it to anotherpurpose, he would be guilty of a felony. People v. Ritchie (1906) 108 N.W. 747, 145Mich. 440.

2. Agent

Where C.L.1897, Sec. 11572, which provided that whenever money should be deliveredto any person as agent, with written instructions as to the use to which it should be


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applied, and such person should intentionally appropriate the money in any othermanner than directed, he would be guilty of a felony the term "agent" as so used,included a broker, and justified his conviction for misapplying money deposited with himto be used in the purchase of stock. People v. Karste (1903) 93 N.W. 1081, 132 Mich.455.

3. Jury questions

Where prosecutor sent money to defendant, with which to purchase certain stock as soonas it could be purchased at the price named, and defendant replied that the money hadbeen placed to prosecutor's credit, whether the intention of the parties was to create therelation of debtor and creditor, or to constitute the fund a special deposit, so as to renderdefendant liable for its misapplication, prohibited by C.L.1897, Sec. 11572, was aquestion for the jury. People v. Karste (1903) 93 N.W. 1081, 132 Mich. 455.

M.C.L.A. 750.280

MICHIGAN COMPILED LAWS ANNOTATEDCHAPTER 750. MICHIGAN PENAL CODETHE MICHIGAN PENAL CODECHAPTER XLIII. FRAUDS AND CHEATS


750.280. Gross frauds and cheats at common law

Sec. 280. GROSS FRAUDS AND CHEATS AT COMMON LAW--Any person who shallbe convicted of any gross fraud or cheat at common law, shall be guilty of a felony,punishable by imprisonment in the state prison not more than 10 years or by a fine of notmore than 5,000 dollars.

HISTORICAL NOTES


1991 Main Volume


Prior Laws:R.S.1846, c. 154, Sec. 40.C.L.1857, Sec. 5784.C.L.1871, Sec. 7591.How. Sec. 9162.


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REFERENCES

CROSS REFERENCES

Larceny of rationed goods, wares and merchandise, stealing, see Sec. 750.367a.Underground storage tank financial assurance, false statements, reports, claims, bids, orother requests for payment, prosecutions under other state laws, see Sec. 324.21548.


1991 Main Volume

Bounds of the law for lawyer as adviser. Sanford A. Klein, 61 Mich.B.J. 756 (1982).

LIBRARY REFERENCES

1991 Main Volume

Fraud k69(1).WESTLAW Topic No. 184.C.J.S. Fraud Sec. 155 et seq.

ANNOTATIONS

NOTES OF DECISIONS

Elements of offense 1Evidence 2


Question of fraud involves element of intent direct evidence of such intent is notessential to proof of fraud, and circumstantial evidence, if strong enough to convince juryof guilt beyond reasonable doubt, is sufficient to sustain verdict. U.S. v. Leggett, C.A.6

(Mich.)1961, 292 F.2d 423, certiorari denied 82 S.Ct. 194, 368 U.S. 914, 7 L.Ed.2d 131,rehearing denied 82 S.Ct. 476, 368 U.S. 979, 7 L.Ed.2d 441.

2. Evidence

Defendant will not be permitted to give a test or exhibition in open court of his power tocommunicate with the spirits of deceased persons, on a trial for fraud in pretending tohave such power. U.S. v. Ried, D.C.Mich.1890, 42 F. 134.

In prosecution for conspiracy to defraud by means of false pretenses, trial court did not


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err in admitting in evidence an envelope in which one of the defendants had stagemoney which was to be sold as counterfeit United States currency, though the envelopehad no marks of identification, where state's witness testified that it was the envelope inwhich one of the defendants had the stage money, since the authenticity of the envelopewas a fact question for the jury. People v. Smith (1941) 295 N.W. 605, 296 Mich. 176.

Where the principal issue is fraud or fraudulent intent, a wide latitude is recognized inreceiving evidence of facts tending either to inculpate or exculpate accused. People v.

Willson (1919) 171 N.W. 474, 205 Mich. 28.

M.C.L.A. 750.363

MICHIGAN COMPILED LAWS ANNOTATEDCHAPTER 750. MICHIGAN PENAL CODETHE MICHIGAN PENAL CODECHAPTER LII. LARCENY

Current through P.A. 1995, Nos. 1to 3, 5 to 8, 10 to 24, 26,

28 to 58, and 61 to 100

750.363. Larceny by false personation

Sec. 363. LARCENY BY FALSE PERSONATION--Any person who shall falselypersonate or represent another, and in such assumed character shall receive any money,or other property whatever, intended to be delivered to the party so personated, withintent to convert the same to his own use, shall be deemed by so doing, to havecommitted the crime of larceny, and shall be punished as provided in the first section ofthis chapter. [FN1]

[FN1] Section 750.356.

HISTORICAL NOTES


1991 Main Volume

Source:

P.A.1931, No. 328, Sec. 363, Eff. Sept. 18.C.L.1948, Sec. 750.363.C.L.1970, Sec. 750.363.



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C.L.1929, Sec. 16915.

REFERENCES

CROSS REFERENCES

Commercial paper, imposters, see Sec. 440.3405.

LIBRARY REFERENCES

1996 Interim Update

Comments.

Larceny by false personation, see M.P. vol. 12, Saltzman, Sec. 7.63 et seq.

1991 Main Volume

Larceny k14(4).WESTLAW Topic No. 234.C.J.S. Larceny Secs. 7, 23, 36.M.L.P. False Pretenses Sec. 1.M.L.P. Larceny Sec. 10.

M.C.L.A. 750.369

MICHIGAN COMPILED LAWS ANNOTATEDCHAPTER 750. MICHIGAN PENAL CODETHE MICHIGAN PENAL CODECHAPTER LIII. LEGAL PROCESS


750.369. Abuse of legal process

Sec. 369. ABUSE OF LEGAL PROCESS--Any officer or person who shall wilfully make

any arrest or institute any legal proceedings, or sue out any process for the purpose ofobtaining the fees or mileage that might accrue thereto or therefor, shall be guilty of amisdemeanor.

HISTORICAL NOTES


1991 Main Volume


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Prior Laws:P.A.1879, No. 187, Sec. 1.How. Sec. 9263.


REFERENCES

LIBRARY REFERENCES

1991 Main Volume

Process k168.WESTLAW Topic No. 313.C.J.S. Process Secs. 106 to 111.M.L.P. Process Sec. 6.

ANNOTATIONS

NOTES OF DECISIONS

In general 1

1. In general

Elements of abuse of process are an ulterior purpose and an act by defendant which isimproper in the regular conduct or prosecution of a proceeding. Pilette Industries, Inc. v.

Alexander (1969) 169 N.W.2d 149, 17 Mich.App. 226.

Proper issuance of process may be tainted by its subsequent use, but regular use ofprocess with bad intention is not malicious abuse of process. Pilette Industries, Inc. v.

Alexander (1969) 169 N.W.2d 149, 17 Mich.App. 226.

Manner of use of process, not intention of one who procures it, is determinative ofwhether process has been abused. Pilette Industries, Inc. v. Alexander (1969) 169N.W.2d 149, 17 Mich.App. 226.

M.C.L.A. 750.370

MICHIGAN COMPILED LAWS ANNOTATEDCHAPTER 750. MICHIGAN PENAL CODETHE MICHIGAN PENAL CODE


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CHAPTER LIV. LIBEL AND SLANDER


750.370. Falsely and maliciously accusing another

Sec. 370. FALSELY AND MALICIOUSLY ACCUSING ANOTHER OF CRIME, ETC.--

Any person who shall falsely and maliciously, by word, writing, sign, or otherwiseaccuse, attribute, or impute to another the commission of any crime, felony ormisdemeanor, or any infamous or degrading act, or impute or attribute to any female awant of chastity, shall be guilty of a misdemeanor.

HISTORICAL NOTES


1991 Main Volume


Prior Laws:P.A.1879, No. 192, Sec. 1.How. Sec. 9315.P.A.1885, No. 210.


REFERENCES

CROSS REFERENCES

Civil action, see Sec. 600.2911.Indictment and information, see Sec. 767.1 et seq.

Limitation of actions, see Sec. 767.24.Misdemeanor, see Secs. 750.8, 750.9.


1991 Main Volume

First Amendment as precluding recovery for non-malicious defamation by one who hasprojected himself into arena of public concern. 13 Wayne L.Rev. 392 (1967).

LIBRARY REFERENCES


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1991 Main Volume

Libel and Slander k141, 145.WESTLAW Topic No. 237.C.J.S. Libel and Slander Injurious Falsehood Secs. 7, 8.M.L.P. Libel and Slander Sec. 3.

ANNOTATIONS

NOTES OF DECISIONS

Constitutional and statutory provisions 2Elements of offense 1Oral defamation 3Persons liable 5Printed material 4


Affidavits concerning allegedly libelous publication of statement concerning plaintiffpolitical party workers were such that reasonable minds could find or reasonably inferthat allegedly defamatory document had been prepared and published with an intent tocause harm through falsehood or in reckless disregard of truth or falsity of allegationsprecluding the granting of summary judgment to defendants who asserted that plaintiffswere public figures who could not recover for defamation unless actual malice wasproved. Arber v. Stahlin (1969) 170 N.W.2d 45, 382 Mich. 300, certiorari denied 90 S.Ct.927, 397 U.S. 924, 25 L.Ed.2d 103.

Determination of actual malice on part of defendants sued for libel depends on more thana mere denial and must be resolved from a study of witness on stand, his interest or lackof interest in case, his role in publication of alleged libel, and the many other factorsmaking up issue of credibility. Arber v. Stahlin (1969) 170 N.W.2d 45, 382 Mich. 300,certiorari denied 90 S.Ct. 927, 397 U.S. 924, 25 L.Ed.2d 103.

Under How. Sec. 9315, making guilty of a misdemeanor anyone who falsely andmaliciously accused or imputed to another the commission of any crime or any infamousor degrading act, the fact that the complaining witness construed the language used as

imputing the commission of a crime rather than an infamous or degrading act did notrender the complaint and warrant void, but the offense charged was to have beendetermined by the words alleged to constitute it, and not by the inference drawn fromthem by the affiant. Schultz v. Huebner (1896) 66 N.W. 57, 108 Mich. 274.

A libel that was criminal at common law, but which was not enumerated in P.A.1879, No.192, could not be punished, since that act, enumerating criminal libels and specifying thepunishment, excluded as offenses those not mentioned. Glassmire v. Manistee CircuitJudge (1891) 47 N.W. 965, 84 Mich. 447.

Imputation in writing of violation of statute prohibiting use of a motor vehicle without


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authority but without intent to steal, if made falsely and if maliciously published, islibelous, but, if made truthfully and without malice is not libelous. Op.Atty.Gen.1947-48,No. 468, p. 366.

2. Constitutional and statutory provisions

Prior to the passage of P.A.1879, No. 192, the statutes contained no express provisionfor the punishment of libel and slander, but they were punishable as misdemeanors at

the common law under How. Sec. 9261. Glassmire v. Manistee Circuit Judge (1891) 47N.W. 965, 84 Mich. 447.

3. Oral defamation

A complaint charging that the defendant imputed to the affiant a crime by falsely andmaliciously saying: "You are a swindler. You beat the poor people out of their money,and are a cheat and a fraud,"--charged an offense, under How. Sec. 9315, making it amisdemeanor to impute to another the commission of "any crime, felony, or misdemeanoror any infamous or degrading act." Schultz v. Huebner (1896) 66 N.W. 57, 108 Mich. 274.

4. Printed material

An article written by plaintiff was erroneously printed, but there was no evidence to showthat the alteration was the result of intention on the part of the parties it could not bemade the basis of damages for an action by the writer for malicious libel. Sullings v.Shakespeare (1881) 9 N.W. 451, 46 Mich. 408, 41 Am.Rep. 166.

A pamphlet issued in support of a political candidate which contained certainaccusations was not criminally libelous on its face where the truth or falsity would

depend on proof outside the printed matter itself. Op.Atty.Gen.1947-48, No. 468, p. 366.

5. Persons liable

One who circulated a libel may be guilty of the offense denounced by C.L.1897, Sec.11762, making it a misdemeanor to falsely charge another with the commission of acrime. Mack v. Sharp (1904) 101 N.W. 631, 138 Mich. 448, 5 Am.Ann.Cas. 109.

Under P.A.1885, No. 210, which made it a misdemeanor to falsely and maliciouslyimpute to another by word or writing an infamous or degrading act, a complaint whichcharged defendant with publishing in a newspaper that complainant's arm was broken

while being ejected from a house of ill fame charged a degrading

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