People v. Thomas

Boyle, J.

I concur in the majority conclusion *459that because MCL 752.11; MSA 28.746(101) proscribes the omission of duty but does not require affirmative wrongful acts, and the charged conduct involved affirmative wrongful acts, the existence of the statute did not preclude charging defendant under MCL 750.505; MSA 28.773.11 also agree that defendant’s conduct does not fit within the rubric of common-law obstruction of justice.2 However, it does not follow that defendant’s conduct was outside the scope of MCL 750.505; MSA 28.773.

To determine whether defendant can be charged under MCL 750.505; MSA 28.773, the starting point of analysis must be the language of the statute itself:

Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony ....

The question which is determinative of the applicability of MCL 750.505; MSA 28.773, then, is whether defendant’s conduct constitutes "any indictable offense at the common law.”3

*460A review of the application of MCL 750.505; MSA 28.773 reveals that, historically, it has been applied to conduct constituting common-law offenses outside of those constituting "obstruction of justice.” For example, conspiracy, a common-law crime that may, but does not necessarily, fall within the rubric of obstruction of justice, has frequently been prosecuted under MCL 750.505; MSA 28.773.4 In People v Causley, 299 Mich 340; 300 NW 111 (1941), this Court, after thorough analysis, concluded that conspiracy to violate a statute prohibiting malicious injury to electric transmission lines was an offense chargeable under MCL 750.505; MSA 28.773.

Thus, the inquiry is whether defendant’s falsification of a police report in order to legitimize an otherwise unlawful search constitutes an offense indictable at common law. I believe that the common-law offense of misconduct in office encompasses such conduct. "Misconduct in office is corrupt behavior by an officer in the exercise of the duties of his office or while acting under color of his office.” Perkins & Boyce, Criminal Law (3d ed), p 543. Blackstone describes the offense as "maladministration of such high officers, as are in public trust and employment.” 4 Blackstone, Commentaries, p 153. Perkins & Boyce explain that the offense of "misconduct in office” may take the form of malfeasance — the doing of a wrongful act, misfeasance — the doing of a lawful act in a wrongful manner, and nonfeasance — the failure to do an act required by the duties of office. Id., p 540.5

I have little difficulty concluding that defen*461dant’s alleged acts were of a type that could be prosecuted under the common-law offense of misconduct in office.6 I would find defendant’s alleged conduct analogous to acts that have been prosecuted as misconduct in office. For example, in Commonwealth v Miller, 94 Pa Super 499 (1928), the Pennsylvania Superior Court found that a state trooper was a public officer subject to prosecution for malfeasance in office for wrongfully causing the withdrawal of an information against a person accused of driving while intoxicated. In Robbins v Commonwealth, 232 Ky 115; 22 SW 440 (1929), the court affirmed the conviction of "malfeasance in office” where a county judge was found guilty of issuing a warrant without a proper affidavit and without foundation. In affirming the conviction, the court commented, "We can conceive of no greater abuse of the power vested in an officer to issue warrants of arrest.” Id., p 119. A similar abuse is evidenced by the falsification of a police report by a police officer. Instead of upholding the rule of law as required by duty, the defendant sought to subvert that rule by his alleged corrupt act.

I concur in affirmance of the Court of Appeals because the information charging defendant with violation of MCL 750.505; MSA 28.773 described the offense as "obstruction of justice,” and, as the majority concludes, defendant’s conduct does not constitute common-law obstruction of justice. However, defendant may still be properly charged with violation of MCL 750.505; MSA 28.773 on the basis *462of his commission of acts constituting the common-law offense of malfeasance in office.7

CONCLUSION

I agree that the existence of the statutory misdemeanor of failure to uphold the law, MCL 752.11; MSA 28.746(101), did not preclude charging defendant under MCL 750.505; MSA 28.773, because defendant’s conduct involved affirmative acts. I further concur in the conclusion that defendant’s acts do not constitute common-law obstruction of justice. However, I would conclude that defendant’s conduct constitutes an offense indictable at common law, and that defendant could properly be charged with violation of MCL 750.505; MSA 28.773.

Riley, J., concurred with Boyle, J. Mallett, J., took no part in the decision of this case.

MCL 752.11; MSA 28.746(101) provides:

Any public official, appointed or elected, who is responsible for enforcing or upholding 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 a misdemeanor.

I write separately to amplify the point acknowledged by Chief Justice Cavanagh at ante, p 458, n 8, that defendant might be charged under MCL 750.505; MSA 28.773 with another common-law offense.

The phrase "obstruction of justice” does not accurately describe the scope of the statute at issue. "Obstruction of justice” is merely a label of convenience sometimes applied to MCL 750.505; MSA 28.773. The shorthand designations applied to statutes do not define the scope or meaning of the legislation. By the terms of the statute itself, the relevant inquiry is whether defendant’s conduct constituted "any indictable offense at the common law.”

Blackstone discusses conspiracy only in the context of offenses against public justice, and his discussion is limited to conspiracy to indict an innocent man. However, "it had been well established since the late seventeenth century that a conspiracy to commit any crime or other wrong was indictable . . . .” Jackson, Common law misdemeanors, 6 Cambridge L J 193, 194 (1938).

Thus one encounters statements of the law such as: "[mjalfea-*461sanee, misfeasance, nonfeasance, misconduct, misbehavior, or misdemeanor in public office is indictable at common law . . . .” 67 CJS, Officers, § 256, p 787.

A defendant cannot be convicted of misconduct in office absent a "corrupt intent,” Perkins & Boyce, supra, p 542. A corrupt intent is not necessarily an intent to profit oneself; "[t]he word 'corruption,’ as an element of misconduct in office, is used in the sense of depravity, perversion or taint.” Id.

Informations may be freely amended, and any amendment not prejudicial to the defendant may be allowed. MCL 767.76; MSA 28.1016; People v Watson, 307 Mich 596, 601-602; 12 NW2d 476 (1943).