Ex parte Palm

• Decision Date: 10 November 1931
• Docket Number: Motion No. 282.
• Parties: Ex parte PALM.
• Court: Michigan Supreme Court

255 Mich. 632

238 N.W. 732

Ex parte PALM.

Motion No. 282.

Supreme Court of Michigan.

Nov. 10, 1931.

Original habeas corpus proceedings by Fred Palm against the Warden of the State Prison at Jackson.

Writ denied.

Argued before the Entire Bench.

WIEST, J.

It being represented by petition that Fred Palm, confined in the state prison at Jackson, is unlawfully deprived of his liberty, we issued our writ of habeas corpus, directed to the warden. The return of the warden shows that, on September 29, 1927, in the circuit court for the county of Ingham, upon his pleas of guilty to informations charging him with illegal possession of intoxicating liquor and that he had previously been convicted of six felonies, Fred Palm was convicted and sentenced to the state prison for life; that on January 15, 1930, the Governor of the state commuted the sentence to read ‘from 7 1/2 to 15 years.’ In People v. Palm, 245 Mich. 396, 223 N. W. 67, we reviewed his conviction by writ of error and in all respects affirmed the same, and the questions there decided may not be reviewed in this proceeding; neither may further review of alleged errors, short of jurisdiction of the circuit court, be had herein.

The writ of habeas corpus cannot function as a writ of error, In re Joseph, 206 Mich. 659, 173 N. W. 358; 29 C. J. 19; neither may it serve to review or consider questions foreclosed by previous writ of error. The writ deals only with radical defects rendering a proceeding or judgment absolutely void. As stated, Palm reviewed his conviction by writ of error. Had he failed to do so, he could not now press questions reviewable by writ of error.

As stated in Goto v. Lane, 265 U. S. 393, 44 S. Ct. 525, 527, 68 L. Ed. 1070: ‘* * * if the petitioners permitted the time within which a review on writ of error might be obtained to elapse and thereby lost the opportunity for such a review, that gave no right to resort to habeas corpus as a substitute.’ No ancillary writ of certiorari to bring up the record was sought or granted herein; nor was it necessary to do so to present the only points now open to the prisoner.

It is urged, in behalf of Palm, that the first Constitution of the state, adopted in 1835, expressly required all criminal prosecutions for felonies to be by presentment or indictment of a grand jury, and, subsequent Constitutions being silent on the subject, the mandate still prevails. The answer to this is obvious. No part of an old Constitution survives adoption of a new one; the latter in all respects supersedes the earlier. It is a well-settled principle of law that a state Constitution operates in limiting and not in granting legislative power. The mandate in the Constitution of 1835 limited the legislative power in the respect mentioned, while subsequent Constitutions left the subject free to legislative control and, therefore, the Legislature rightly could and did provide for criminal prosecutions by information. See Act No. 138, Laws of 1859 (superseded by), Compiled Laws 1929, § 17215. This affords an accused a preliminary examination before a magistrate, opportunity to come face to face with accusers, to question them, and to have knowledge of the evidence against him. Criminal prosecutions by information, if authorized by statute and not regulated otherwise by the Constitution of a state, constitute due process of law.

As said in Brown v. New Jersey, 175 U. S. 172, 20 S. Ct. 77, 78, 44 L. Ed. 119: ‘The state is not tied down by any provision of the Federal Constitution to the practice and procedure which existed at the common law. Subject to the limitations heretofore named [not in Palm's case involved] it may avail itself of the wisdom gathered by the experience of the century to...