Hamilton v. People

Decision Date08 April 1874
Citation29 Mich. 173
CourtMichigan Supreme Court
PartiesThomas W. Hamilton v. The People

Heard January 27, 1874; January 28, 1874

Error to Calhoun Circuit.

Information for burning a barn with intent to defraud insurers. Defendant Thomas W. Hamilton brings error. Reversed and new trial ordered.

Judgment reversed and a new trial granted, and the respondent remanded into the custody of the proper sheriff, to be held in custody until bailed or otherwise dealt with according to law.

Brown & Patterson and M. S. Brackett, for plaintiff in error.

Byron D. Ball, Attorney General, for the People.

Campbell J. Cooley, J. and Graves, Ch. J., concurred. Christiancy, J. did not sit in this case.


Campbell, J.

The defendants were indicted for burning a barn, with intent to defraud an insurance company. The conviction was had of this plaintiff in error (defendants below being tried separately) upon the testimony of William Fuller, who was sworn as State's evidence. Questions arose below on some preliminary matters, and upon the sufficiency of the information, as well as on points ruled at the trial.

A considerable part of the record is taken up with the various rulings and proceedings upon pleadings in abatement, which preceded the issue of not guilty.

The plea relied upon was, in brief, that the complaint before the justice of the peace was brought on for examination on the 21st of February, 1872, and after it had been partly completed it was adjourned until the 22d, when some further testimony was taken and an adjournment was had until the 23d, and thereafter the proceedings went on to completion. The objection relied on is that the 22d of February being not a law day, the justice lost jurisdiction.

This is all that appears in the original plea; and admitting it to be true, and without reference to the subsequent proceedings at the circuit on either side, we do not think it can be sustained.

The justice, in these examinations, does not act judicially, in the technical sense, but in his capacity of a conservator of the peace, and the proceeding is one which, at common law, was conducted very much at discretion. It is possible that the regularity of the arrest and continued custody of the prisoners may have been open to question; but we have found no authority for holding that a criminal examination before a justice is void, if a complaint has been made before him on oath, and the accused are finally held to bail or committed on a law day upon testimony taken in their presence in pursuance of it. Whether irregular or not, we find no authority for regarding such proceedings as nullities. We can see no reason why a complaint properly verified should cease to be valid to maintain an examination, unless the parties accused are either discharged or held to commitment, so long as there is no substantial break in the proceedings. No formal record is required to be kept of them, and the continuance from day to day is not an adjournment of such a nature that the failure to announce it would be of any consequence. The proceedings are by the statute contemplated as continuous, unless formally adjourned from time to time, and the close of business on one day would carry it over until the next business day as a matter of course, unless otherwise ordered. The adjournment to the 22d, if illegal, would not interrupt the legal course, which would take the matter over to the 23d; and whether the justice did or did not consider some testimony which was not admissible because irregularly taken, his discretion in ordering the commitment cannot be reviewed in any such way as proposed here.

The plea does not dispute the fact that there was a preliminary examination upon a proper complaint before a magistrate having jurisdiction, resulting in a commitment; and this, we think, was all that was necessary to justify proceeding by information.

A motion was made to quash the information, resting mainly on the misjoinder of counts, the insufficiency of some of them, and the want of a preliminary examination upon some of the charges.

It was held in Washburn v. People, 10 Mich. 372, that the fact of examination need not be alleged in the information, but that the objection must be made by motion to quash, or plea in abatement. It is not claimed by the motion that there was no examination, but only that it did not cover all the counts; and the counts objected to for that reason are not specified. As the motion to quash the whole information could not properly prevail on this ground, and the parts objected to are not specified, we think that objection was not tenable in the form resorted to. The question of misjoinder is more serious, and rests on different grounds.

The complaint before the magistrate and the information are both so confused and multifarious that the court below might very properly have declined to compel defendants to go to a trial. We have seldom seen pleadings so fairly open to criticism on this head. Offenses are charged to which all the defendants could not possibly be amenable. Some counts charge no offense at all; others contain the charges upon which we suppose the trial was really had, and upon these there is, we think, no fatal objection, as the rules of criminal pleadings under our statutes justify the introduction of various counts charging the ownership of the property burned, and the position of the respondents as principal or accessorial offenders, in different ways.--See Annis v. People, 13 Mich. 511.

It is intimated in The King v. Kingston, 8 East R., 41, that a demurrer would not lie to the whole information for such a misjoinder; but that the proper remedy was by motion to quash. Such a motion is addressed to the discretion of the court. It ought to be granted where the confusion is such that it is likely to interfere with the means of defending, by misleading or perplexing the prisoner in meeting the case or preparing for trial. But when the court can prevent any mischief, as it usually can, by confining the proof to the single transaction on which the defendant was examined, or on which the prosecution has opened the testimony, or by compelling an election in the outset, no wrong is done by the refusal to quash.

We do not hold that, under our statutes, requiring a motion to quash in lieu of a motion in arrest or to save a ground of error, such a motion is always discretionary. But such a motion for misjoinder appears to be discretionary.-- 1 Bish. Cr. Pro., § 447; The King v. Kingston, 8 East, 41.

Where the various counts may all refer to the same transaction, the safer course usually is, undoubtedly, not to quash, but to regulate the proof on the trial as far as may be necessary to prevent surprise or the misleading of the prisoner, and to confine it to that transaction.--See Rex v. Young, R. & Ry., 280 (n.); Rex v. Ellis, 6 B. & C., 145; Anonymous, 2 Leach C. C., 1105.

We had occasion at the last term to consider and sustain the propriety of allowing proof of the entire transaction, in People v. Marion, (ante 31) and Van Sickle v. People, (ante 61).

We think there was no ruling below which we can properly review, which rendered it erroneous to put respondents to their trial, although the misjoinder was gross and improper.

The court on the trial regarded the case as one where the offense was that of burning property with intent to defraud insurers; and it was tried entirely on that theory. The questions raised and discussed on the exceptions and charge are to be considered in view of such a state of facts.

The theory of the prosecution depended entirely on the evidence of the respondent Fuller, who swore to a plan, made in advance, to burn the barn in question, by putting a lighted candle in a place where, as it burned low, it would reach litter and other combustible material, and set it on fire. It was to operate like a slow match. There is no direct evidence of the guilt of any of the defendants, but they were convicted on circumstantial evidence, which derived its force chiefly as explained by Fuller's testimony concerning the previous arrangement. With that out of the case, or discredited, no conviction could have been justified.

The first ruling objected to and mentioned on the argument, related to the admission of certain chancery records, showing that in 1869 a bill was filed to rescind the conveyance of the land on which the barn was situated. The ground set up in the bill was fraud alleged to have been practiced by Thomas W. Hamilton and one Nathaniel Badger. The object of this testimony was claimed to be to establish a motive to account for the destruction of the property, by showing a dispute affecting title. It was admitted against the objection, and the court afterwards refused to strike it out.

We are inclined to think that evidence of an existing controversy of that sort would have some bearing on the question of motive although there may be difficulty in guarding it so as to prevent the jury from passing upon the facts of that controversy, which could not lawfully be done. But it appeared from these files that the case was brought to an issue on bill, answer and replication, more than a year before the fire, and that no proofs had been taken. As it was then too late to take proofs, and the answer denied the equity of the bill, and, therefore, as the case then stood, the defendants were vindicated, we can see no reason for permitting the bill to be introduced; and allowing it to be received as evidence that respondents had a motive to burn the insured property, was injurious and erroneous. Still more objectionable was the introduction of foreclosure proceedings commenced after the fire, which could, under no circumstances, furnish proof of a motive. The...

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