Ex parte Brazel

• Decision Date: 03 June 1940
• Docket Number: Motion No. 381.
• Citation: 293 Mich. 632,292 N.W. 664
• Parties: Ex parte BRAZEL.
• Court: Michigan Supreme Court

293 Mich. 632

292 N.W. 664

Ex parte BRAZEL.

Motion No. 381.

Supreme Court of Michigan.

June 3, 1940.

Habeas corpus proceeding by Clyde Brazel to inquire into the cause of the petitioner's restraint in the State Prison of Southern Michigan, wherein an ancillary writ of certiorari was directed to the Honorable Clifford A. Bishop, Circuit Judge in Genesee County.

Writ dismissed.

Argued before the Entire Bench.

Clyde Brazel, pro se.

CHANDLER, Justice.

On January 2, 1940, a writ of habeas corpus issued out of this court to inquire into the cause of petitioner's restraint in the State Prison of Southern Michigan, and an ancillary writ of certiorari was directed to the Honorable Clifford A. Bishop, circuit judge in Genesee County, successor to the Honorable Edward D. Black, a former circuit judge, now deceased. Returns to said writ of habeas corpus and ancillary writ of certiorari have been filed.

Petitioner alleges, and the return of Judge Bishop shows, that on January 4, 1938, a complaint was filed before a municipal judge of the City of Flint in said County of Genesee, charging Clyde Brazel, petitioner, with having falsely and feloniously forged a certain medical prescription for narcotics, in an attempt to obtain narcotics, contrary to the form of the Statute of the State of Michigan, which said complaint further charged that petitioner, respondent in the criminal case, on June 16, 1930, in the circuit court for the County of Genesee was convicted of carrying concealed weapons; that on July 14, 1921, in the circuit court for the County of Genesee, respondent was convicted of larceny of narcotics from a certain store of the approximate value of $25; and that on October 25, 1917, respondent was convicted in the circuit court for the County of Genesee of having feloniously and burglariously broken and entered a certain store in the City of Flint with intent to commit the crime of larceny. Said complaint further charged that the first offense therein set forth, that is, the charge of falsely and feloniously forging a certain medical prescription for narcotics with the intent to obtain narcotics, was a fourth offense under and contrary to the form of the statute of the State of Michigan.

The warrant issued pursuant to said complaint sets forth the complaint in full.

Respondent in the criminal case, petitioner herein, was taken before the municipal judge who issued the warrant on January 4, 1938, where the charge contained in the complaint and warrant was read to him and he expressly waived examination and was bound over for trial to the circuit court for the County of Genesee.

The return of the circuit judge shows that on February 9, 1938, the prosecuting attorney filed an information charging respondent with the offense set forth in the complaint and warrant and setting forth in detail the prior convictions therein referred to. The circuit court journal shows the following entries for February 9, 1938:

‘(first) The respondent in this cause, having been arraigned at the bar in open court, and the information having been read to him by the prosecuting attorney, pleaded thereto Guilty.

‘(second) Clyde Brazel, the respondent in this cause, having been upon his plea of guilty to the information filed against him in this cause, convicted of the crime of Forgery of Signature, as appears by the record thereof, and the court before pronouncing sentence upon such plea, being satisfied after such investigation as was deemed necessary for that purpose, respecting the nature of the case and the circumstances of such plea, that the same was freely made and with full knowledge of the nature of said accusation and without any undue influence; and having been by the prosecuting attorney brought to the bar of the court for sentence, and having there been asked by the court if had anything to say why judgment should not be pronounced against him and having said what he had to say.

‘Therefore, it is ordered and adjudged by the court now here that the said respondent be confined in the southern Michigan prison at Jackson for a period of not less than seven and one-half years nor more than fifteen years, with no recommendation, from and after this date.’

A transcript of proceedings had at the time of sentence is returned and shows the following pertinent facts:

‘Q. How long have you been addicted to the use of narcotics? A. Why, through affiliation, the Ionia sentence, I got connected with it.

‘Q. Over there at Ionia. Did you get it in prison? A. I don't know how they got it; they got it, smuggled it in. I got started there; they paroled that bunch to Flint, Grand Rapids boys from Chicago, from all over, I guess. I quit it, I quit this time over 7 years, and I had gall bladder trouble, eventually got back on it, but I only been on it three or four months this time.

‘Q. You know what the law is in regard to a fourth offense? A. Yes, sir.

‘Q. You know that the Court has no discretion in the matter. It is unfortunate for you that you could not stop and did not stop when you had quit once and continued getting along without it. What do you do, do you shoot it into your arm? A. Yes, sir.

‘The Court: The only thing I can do is to sentence you, and the sentence of the Court is that you be confined in the Michigan Southern Prison at Jackson, for a period of not more than 15 years nor less than 7 1/2 years, without any recommendation.’

The petitioner appears in his own proper person and has filed a brief in support of his petition, which we have reviewed most carefully and conclude that the following questions are presented for our determination:

1. That inasmuch as it appears from the information charging a fourth offense that two of such prior convictions were had prior to the enactment of the habitual criminal act, 3 Comp.Laws 1929, Secs. 17338-17341, Stat.Ann.Secs. 28.1082-28.1085, authorizing augmented punishment for fourth offenders, does said statute being given retroactive effect render it an ex post facto law and, therefore, unconstitutional?

2. That under the circumstances disclosed by the record, respondent having been arrested on information charging a felony, and alleging three prior convictions as grounds for augmented punishment under the so-called habitual criminal act, are his constitutional and statutory rights invaded?

3. If the prosecuting attorney desired to subject respondent to punishment as a fourth offender under the provisions of 3 Comp.Laws 1929, Sec. 17341, Stat.Ann.Sec. 28.1085, was it necessary that he file a supplemental information?

4. Is habeas corpus an appropriate remedy to correct an alleged illegal and excessive sentence pronounced upon a plea of guilty to a felony setting forth three prior convictions as the basis for augmented punishment under the so-called habitual criminal act?

We will answer these questions in the order stated.

1. The contention of petitioner that the court imposed a sentence under an ex post facto law is without merit. This same question was raised and settled contrary to his contention in People v. Palm, 245 Mich. 396, 223 N.W. 67, wherein we said:

‘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). * * *

‘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 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 manner in which the Criminal Code was prepared, and the purpose of its enactment, was referred to in ...