People v. Atley

M. S. Coleman, J.

(dissent). The Court has reversed defendant’s conviction because it finds "the evidence insufficient to infer a conspiracy to sell marijuana from the facts established by the testimony at trial.” Because the record persuades me that the jury’s conclusion was based upon competent evidence, I must dissent.

FACTS

The pertinent charge against defendant accused him of conspiring to sell marijúana. He was arrested when found in possession of 127 pounds of marijuana. The arrest occurred when defendant and his confederates were returning after obtaining the marijuana from fields in Kansas and Missouri.

When the project was conceived, defendant was without funds, transportation or assistants. He recruited Michael Conley. When first contacted, Conley went to the authorities. His assistance permitted the authorities to intercept the marijuana as it was brought into the state.

The trip was financed by $200 advanced to defendant by an unknown person. Defendant persuaded two other men, Loren Eaton and Michael Hughes, to join the expedition. Defendant financed the trip, including expenses and tools, although under the circumstances none of the participants were paid for their work.

At trial, Conley testified that the marijuana "was going to be dried, and cured, and sold.” He *320said defendant "agreed to give me a sum of the profits received for the sale of the substance that we were going to obtain.” Conley recalled defendant saying "that he intended to sell it and give me part of the profit.”

Michael Hughes refused to testify. Loren Eaton said he "was a hired hand” employed only to assist in the harvest of the marijuana. He said he was to be paid for his work. He denied knowledge of any intended sale of the marijuana.

The Court of Appeals affirmed defendant’s conviction. 45 Mich App 421; 206 NW2d 783 (1973). The evidence was deemed sufficient to warrant the verdict. The Court wrote:

"The jury could reasonably find from the evidence at trial that defendant intended to sell at least some of the 127 pounds of marijuana and would pay his confederates with the proceeds. The jury could infer the existence of the agreement necessary to the charge from the prior preparation and planning engaged in by the parties and disregard the denials of defendant’s alleged coconspirators. While it may have been designed that only defendant would sell the marijuana, the prior combination and agreement to receive proceeds by those involved was reasonably established and certainly points to the existence of the charged conspiracy.”

DISCUSSION

I believe the Court of Appeals concisely and correctly resolved the question at issue. However, this Court holds that we may not fairly infer

"the ultimate fact of conspiracy to sell from the fact of joint acquisition. The ultimate fact of intent to sell might be inferred, but not agreement to sell. What they actually intended to do insofar as payment was concerned, or insofar as where the marijuana was to be sold, whether in Michigan or elsewhere, is on this *321record a matter of conjecture. Testimony, indicating expectation of payment does not establish the facts of agreement to be paid from the proceeds of a sale in Michigan.”

It would be beneficial if conspirators would reduce their agreements to writing, properly witnessed. Until such becomes standard procedure, we must rely on the legitimate conclusions which the fact finders draw from proper evidence.

In People v Pitcher, 15 Mich 397 (1867), Justice Christiancy wrote in reference to admitting statements of joint criminal enterprisers:

"The common design or concert in a common enterprise is the only basis for the admission of such statements. But like most other facts this is not required to be established by positive proof. It may be and generally is supported only by circumstantial evidence. And it is sufficient that there be evidence tending to establish the fact, and from which the jury may fairly infer it. The weight of the evidence upon this, as upon the other facts in the case, is for the jury.”

Also see People v Saunders, 25 Mich 119 (1872) where Justice Cooley said "it often happens that the existence of the conspiracy is only made out by inference from the acts and declarations of the several parties thereto”.

Pitcher was followed in People v Beller, 294 Mich 464; 293 NW 720 (1940). The Court did note that "the circumstances must be within safe bounds of relevancy and be such as to warrant a fair inference of the ultimate facts.” Also see People v Garska, 303 Mich 313; 6 NW2d 527 (1942), People v Kanar, 314 Mich 242; 22 NW2d 359 (1946) and People v Brynski, 347 Mich 599; 81 NW2d 374 (1957). There is no objection raised to the relevancy of the testimony in the instant case.

*322This Court has defined conspiracy as being "a partnership in criminal purposes.” People v Cooper, 326 Mich 514; 40 NW2d 708 (1950). That opinion further stated:

"A person may be a party to a continuing conspiracy by knowingly co-operating to further the object thereof. People v. Heidt, [312 Mich 629; 20 NW2d 751 (1945)]. It is not necessary to a conviction for conspiracy that each defendant have knowledge of all its ramifications. People v. DeLano, 318 Mich 557 [28 NW2d 909 (1947)]. Nor is it necessary that one conspirator should know all of the conspirators or participate in all of the objects of the conspiracy. People v. Garska, 303 Mich 313.”

Also see People v Knoll, 258 Mich 89; 242 NW 222 (1932) and People v Huey, 345 Mich 120; 75 NW2d 893 (1956).

The trial court instructed the jury without objections. The judge said, in part:

"Proof of the formal agreement is unnecessary to support a finding of guilt, and it is sufficient if the circumstances, acts, and conduct of the parties are such as to show agreement in fact. Such an agreement may be established by evidence that shows the parties steadily pursued the same object, whether acting separately or together, by common or different means, but ever leading to the same unlawful result.”

This accords with existing Michigan precedent. See decisions and discussions in People v Newsome, 3 Mich App 541; 143 NW2d 165 (1966), People v Thomas, 7 Mich App 519; 152 NW2d 166 (1967) and People v Iaconis, 29 Mich App 443; 185 NW2d 609 (1971).

One need not be a card carrying member of the counter culture to know that 127 pounds of marijuana, even when reduced to a useable form, was too great a quantity for defendant’s personal con*323sumption. From this circumstance, from defendant’s lack of funds prior to the trip, from the unpaid status of the harvesters, from the statement and promise made to Conley, the jury could fairly infer that the object of the transaction was the sale of marijuana.

By its verdict, the jury indicated it was persuaded that an agreement to sell existed. I find such conclusion to be supported by competent evidence. I would affirm defendant’s conviction.

J. W. Fitzgerald, J., concurred with M. S. Coleman, J.