Opinion
Docket No. 155, Calendar No. 36,573.
Submitted June 16, 1932.
Decided December 6, 1932.
Appeal from Ontonagon; Richter (Theodore J.), J., presiding. Submitted June 16, 1932. (Docket No. 155, Calendar No. 36,573.) Decided December 6, 1932.
Martin Smith was convicted of carrying a rifle during the closed season into an area frequented by deer. Reversed.
John B. Bennett ( Ivan D. Wright, of counsel), for appellant.
Paul W. Voorhies, Attorney General, Edward A. Bilitzke, Assistant Attorney General, and Joseph M. Donnelly, Prosecuting Attorney, for the people.
Defendant was convicted of carrying a rifle, during the closed season, into an area frequented by deer. The complaint charged that:
"On the second day of August, A.D. 1931, at the township of Matchwood * * * one Martin Smith, * * * did then and there carry a rifle into an area frequented by deer, the season for the hunting of deer being then and there closed."
The complaint charged no crime and the evidence did not establish any crime.
The statute, 2 Comp. Laws 1929, § 6229, and a part of the game law on August 2, 1931, provided:
"It shall be unlawful for any person to carry a rifle or shotgun with buckshot or slug loads or single ball load into any area frequented by * * * large or small game when there is no open season on such game under the existing laws."
The statute has since been amended. Act No. 325, Pub. Acts 1931.
The complaint failed to charge that defendant carried a rifle with "buckshot or slug loads or single ball load." The evidence in the case was that an officer stopped an automobile, driven by defendant, searched the car and found an unloaded rifle, under a blanket on the back seat, without any ammunition. Such evidence did not show the commission of the alleged crime. The offense described and proscribed cannot be enlarged by the section of the statute prescribing the penalty.
Upon review counsel for defendant urged several reasons for reversal, some of which cannot under the record be considered and others have no merit. We cannot, however, close our eyes to the fact that the complaint charged no offense and the evidence established no crime, and we may not, with full consciousness of the glaring error committed, rest composed and affirm the conviction on the ground that no motion was made to direct a verdict for want of evidence. Conviction by a jury without evidence commands no procedural support, and when the error is fundamental, manifest, and noticed, such a conviction cannot be permitted to stand. The error, in submitting the case to the jury and permitting the finding of guilt and sanction thereof by sentence in the nature of probation, is so fundamental that we cannot but notice the same, and, as a court for the correction of errors, exercise the power of correction.
The mentioned point, not having been raised in the circuit nor presented by briefs first filed in this court, we called for additional briefs.
The conviction is reversed, and defendant discharged.
CLARK, C.J., and McDONALD, POTTER, SHARPE, NORTH, FEAD, and BUTZEL, JJ., concurred.