223 N.W. 67 (Mich. 1929), 126, People v. Palm

Docket Nº:126
Citation:223 N.W. 67, 245 Mich. 396
Opinion Judge:SHARPE, J.
Party Name:PEOPLE v. PALM.
Attorney:[245 Mich. 397] Edmund E. Shepherd and Ford P. Brook, both of Detroit, for appellant. Wilber M. Brucker, Atty. Gen., Harold J. Waples and Charles Rubiner, Asst. Attys. Gen., and Barnard Pierce, Pros. Atty., of Lansing, for the People.
Judge Panel:Argued before FEAD, C.J., and NORTH, FELLOWS, WIEST, CLARK, McDONALD, and SHARPE, JJ.
Case Date:January 07, 1929
Court:Supreme Court of Michigan
 
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Page 67

223 N.W. 67 (Mich. 1929)

245 Mich. 396

PEOPLE

v.

PALM.

No. 126

Supreme Court of Michigan

January 7, 1929

Error to Circuit Court, Ingham County; Leland W. Carr, Judge.

Fred Palm was convicted on his plea of guilty of illegal possession of intoxicating liquor, and he brings error. Affirmed.

Argued before FEAD, C.J., and NORTH, FELLOWS, WIEST, CLARK, McDONALD, and SHARPE, JJ.

[245 Mich. 397] Edmund E. Shepherd and Ford P. Brook, both of Detroit, for appellant.

Wilber M. Brucker, Atty. Gen., Harold J. Waples and Charles Rubiner, Asst. Attys. Gen., and Barnard Pierce, Pros. Atty., of Lansing, for the People.

SHARPE, J.

Defendant reviews his conviction and sentence to life imprisonment on his plea of guilty by writ of error allowed by this court on his personal petition therefor. All irregularities in the [245 Mich. 398] issuance thereof have been waived by the Attorney General.

The sentence was imposed under the mandatory provision of section 12 of chapter 9 of Act No. 175 of the Public Acts of 1927 (the Code of Criminal Procedure), which reads as follows: 'A person who after having been three times convicted within this state, of felonies or attempts to commit felonies, or under the law of any other state, government or country, of crimes which if committed within this state would be felonious, commits a felony within this state, must be sentenced upon conviction of such fourth or subsequent offense, to imprisonment in a state prison for the term of his natural life. Offenders sentenced under this and the last two preceding sections shall not be eligible to parole before the expiration of the minimum term fixed by the sentencing judge at the time of the sentence without the written approval of the judge of such court or any judge of such court if the sentencing judge is not then serving. A person to be punishable under this and the last two preceding sections need not have been indicted and convicted as a previous offender in order to receive the increased punishment therein provided, but may be proceeded against as provided in the following section.'

Section 13 provides: 'If at any time after conviction and either before or after sentence it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth in any of the three foregoing sections, it shall be the duty of the prosecuting attorney of the county in which such conviction was had to file an information in such cause accusing the said person of such previous convictions. Whereupon the court in which such conviction was had shall cause the said person whether [245 Mich. 399] confined in prison or otherwise, to be brought before it and shall inform him of the allegations contained in such information, and of his right to be tried as to the truth thereof according to law, and shall require such offender to say whether he is the same person as charged in such information or not. If he says he is not the same person, or remains silent, the

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court shall enter a plea of not guilty, and a jury of twelve jurors shall be impaneled from the petit jurors serving at the then or a following term of said court to determine the issues raised by such information and plea. The accused may waive trial by jury in the manner provided by this act. The usual practice in the trial of criminal cases shall be followed in the impaneling of such jury and the trial of said issue and the prosecuting officer and the accused shall each be allowed five peremptory challenges. If the accused shall plead guilty to such information or if the jury shall return a verdict of guilty, the court shall sentence him to the punishment prescribed in the three preceding sections, as the case may be, and shall vacate the previous sentence, deducting from the new sentence all time actually served on the sentence so vacated if required. When ever it shall become known to any warden, or prison, probation, parole, or other peace officer that any person charged with or convicted of a felony has been previously convicted within the meaning of the three preceding sections, it shall become his duty forthwith to report the facts to the prosecuting attorney of the county in which such person is charged or was sentenced.'

The information to which defendant pleaded guilty, and on which the sentence of life imprisonment was imposed, charged that before the filing thereof the defendant had been once convicted of burglary and four times of a violation of the law prohibiting the manufacture or sale, etc., of intoxicating[245 Mich. 400] liquors in the circuit court for the county of Ingham, in which such information was filed. It also charged that on February 2, 1920, defendant was convicted in the United States District Court for the Eastern District of Michigan of defacing the lawful currency of the United States.

The journal of the court, attested by the signature of the trial judge, reads as follows: 'The Prosecuting Attorney of the County of Ingham, having filed his information against the said respondent, alleging and charging that the said respondent has heretofore been convicted of six felonies and the said respondent having been duly arraigned on said information and having pleaded guilty thereto; and on examination by the court, it appearing that said plea of guilty was voluntarily and understandingly tendered, and said plea of guilty having been accepted by the court; and having been, on motion of the Prosecuting Attorney, brought to the bar of the court for sentence, and having there been asked by the court if he had anything to say why judgment should not be pronounced against him, and alleging no reason to the contrary;...

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