People v. Martino

North, C. J. Mr. Justice Starr has written for reversal and granting a new trial in this case. I am unable to concur in that result. Defendant, on trial before a judge of the recorder’s court of Detroit without a jury, was convicted of the crime of larceny by conversion and sentence imposed. In effect the controlling question presented is whether the testimony was sufficient to sustain the conviction. The trial judge was the trier of the issues of fact involved; and therefore it was within his province to weigh the testimony and to determine what measure of credence should be given to any portiofi thereof. Unless from the record we *389 can say that the testimony did not establish defendant’s guilt beyond a reasonable doubt, the conviction by the trial court should not be disturbed. The record discloses a direct conflict between the testimony in support of the prosecution and that offered in behalf of defendant. In substance the information charges that defendant converted to his own use $480 belonging to Carlo Migliori. This sum of money is claimed to have been obtained by defendant incident to a subscription for stock in the United Credit Protection Service Corporation, a Michigan corporation, of which defendant was president. The theory of the prosecution and the claim of Migliori was that defendant after receiving the money did not deliver the stock to Migliori or in any way account for the money defendant had received. Because of there having been another payment of $20- the above-mentioned sum of $480 is sometimes referred to in the record as $500. Migliori testified: “He (defendant) did not return the $500. I don’t see him anymore. He run away. * * * After I give the $500, he didn’t give me no stock.” The foregoing testimony was contradicted by defendant; and as a part of his defense he gave testimony of a subsequent transaction incident to which defendant and his wife gave a note to Migliori for $2,500. Defendant claimed the amount of this note was made up of the following items: a loan of $1,500 by Migliori to defendant, repayment by defendant to Migliori of the $500 which defendant is charged in the instant case to have unlawfully obtained, and $500 bonus. But Migliori definitely testified that the note transaction was not a repayment of the money with which he had sought to purchase stock or in any way connected therewith. He testified: “Q. Is it entirely a different thingÍ “A. Different thing.’’ *390 Incident to the above note transaction defendant testified that the stock certificate which he claimed had been delivered to Migliori was not returned by the latter to defendant, but nonetheless defendant made an entry on the stub of the stock certificate that the same was cancelled. All of the foregoing transactions occurred in a comparatively short space of time. The first payment by Migliori on the stock subscription was $50, May 14,1931. A further payment of $430 was made June 5,1931. The $2,500 note above mentioned was given by defendant and his wife to Migliori July 10, 1931. Shortly thereafter defendant disappeared. Obviously the theory of the prosecution was that defendant by preconceived plan sought to obtain from Migliori as much money as possible. On behalf of defendant it is urged that the $480 involved in the prosecution was paid to the corporation and not to defendant. This, however, was clearly a question of fact under the testimony. And it is somewhat persuasive that the money was not paid to the corporation but instead was kept by defendant because under the latter’s- own testimony within a fortnight or so after defendant received the money from Migliori defendant and his wife gave their 90-day note to repay the same money to Migliori. It is hardly conceivable this would have been done if instead of the money having gone to defendant it had gone into the treasury of the corporation. The receipts given to Migliori for the money he paid were marked Exhibits 1 to 3; and defendant testified: “I signed the receipts in evidence, exhibits 1 to 3. They cover the money that whs turned over by Mr. Migliori to the cashier.” The instant case is peculiarly one in which there should be adherence to the rule that the function of passing upon credibility of witnesses is in the trier of the facts in the trial court. Tt is to be presumed *391 that the trial judge in the instant case was somewhat influenced in gauging the credibility of defendant by the fact that after he left Detroit and before he was apprehended in the instant case, he had been convicted of a felony in another State and had served a penitentiary sentence of five years, and he had also been convicted of obtaining $35 on a check issued without sufficient funds in consequence of which he served a 75-day jail sentence. In addition to the foregoing defendant’s testimony is replete with contradictions. Touching the matter of whether the stock certificate was returned by Migliori to defendant at the time the $2,500 note was given, defendant at first testified: “I told him to keep that (stock certificate) for security.” Directly thereafter he testified: “When I gave him that note, I asked Mr. Migliori to return the stock certificate to me and he refused it, — told me not to worry about it. ’ ’ Again in his testimony he testified that when he asked Migliori for the stock certificate: “he told me not to worry about it; that everything was all right. When he received his money he would be glad to return the certificate. I did not tell him to keep it as security.” Further review of the record seems unnecessary. The case is peculiarly one of the type where the trial judge, sitting without a jury, had a distinct advantage in passing upon credibility by reason of his seeing and hearing the witnesses who gave conflicting testimony and observing their attitude and character while on the witness stand. Under the record in this case we should not substitute our judgment for that of the trial court. It is not disclosed that the testimony did not sustain defendant’s conviction beyond a reasonable doubt. Defendant’s conviction and the sentence imposed are affirmed. Wiest, Butzel, Bushnell, and Reid, JJ., concurred with North, C. J.