In re Elliott

• Decision Date: 07 October 1946
• Docket Number: Motion No. 125.
• Parties: In re ELLIOTT.
• Court: Michigan Supreme Court

315 Mich. 662

24 N.W.2d 528

In re ELLIOTT.

Motion No. 125.

Supreme Court of Michigan.

Oct. 7, 1946.

Proceeding in the matter of the habeas corpus petition of Fred Elliott, petitioner, directed to the Warden of the Branch of the State prison at Marquette to inquire into the legality of petitioner's detention in such priosn.

Petition for writ of habeas corpus dismissed.

Before the Entire Bench.

Fred Elliott, in pro. per.

John R. Dethmers, Atty. Gen., and Edmund E. Shepherd, Sol. Gen., for respondent.

BOYLES, Justice.

In April, 1945, we granted one Fred Elliott the writ of habeas corpus directed to the warden of the branch of the State prison at Marquette to inquire into the legality of his detention in said prison, together with ancillary writs of certiorari to the circuit court for Antrim county and the bureau of pardons and paroles to certify to this court their records and proceedings in relation to such detention. Returns to these writs have been made. Subsequently, on petition of the attorney general, this matter was referred to Hon. Ward I. Waller, circuit judge for said county of Antrim, to take testimony and report his findings, together with a transcript of such testimony, in relation to the allegations in the petition on which said writs were issued. Such testimony has been taken and filed here, consisting of 99 pages in the transcript, showing that the petitioner was present in person and participated at the taking thereof. The findings of Judge Waller thereon have also been filed.

It appears that on June 13, 1930, Fred Elliott was sentenced to be confined for life in the Michigan State prison at Jackson (now called the State Prison of Southern Michigan) upon a plea of guilty of the crime of robbery armed; that on December 21, 1932, he was transferred to the branch prison at Marquette, re-transferred to the State Prison of Southern Michigan in 1941, transferred back to the branch prison in Marquette in 1943, and that he is now serving a life sentence in said branch prison by virtue of a commitment and the transfers referred to. Any question in the instant proceedings regarding the legality of such transfers is not now pursued by petitioner. We overlook the rule often repeated here that the writ of habeas corpus cannot be used as a writ of error or claim of appeal from the judgment or sentence of the court. The grounds on which petitioner seeks to be discharged from custody will be considered on the merits.

The petitioner seeks his release from confinement on the following grounds: (1) That his sentence and detention are unlawful because he was sentenced without advice of counsel or having waived that right; (2) that the various instruments (papers) in the criminal proceeding were not signed; and (3) that the sentencing court did not conduct the investigation required by statute before accepting his plea of guilty.

The fundamental law of this State has long recognized the right of one charged with crime to have the assistance of legal counsel for his defense.

‘In every criminal prosecution, the accused shall have the right * * * to have the assistance of counsel for his defense * * *.’ Const. 1908, art. 2, § 19.

This declaration is not a recent innovation in our fundamental law. In practically identical language it was a part of the first Michigan State Constitution, 1835, art. 1, § 10, and was carried down into the Constitution of 1908 through article 6, § 28, of the Michigan Constitution of 1850. Also, before Michigan became a State, the right of an accused person to have counsel was recognized by the territorial laws applicable to this Territory, adopted by the Governor and Judges of the Territory of Michigan. 1 Michigan Territorial Laws, p. 595, Sec. 22, of ‘An Act regulating proceedings in criminal cases,’ enacted by the Governor and Judges, May 11, 1820. See, also, 3 Michigan Territorial Laws 1833, § 22, p. 1146. Beginning not later than 1846, likewise the statute law of this State has been enacted in consonance with the foregoing constitutional provision and the Territorial laws. Section 1, chap. 151, Revised Statutes 1846, provided: ‘On the trial of every indictment, or other criminal accusation, the party accused shall be allowed to be heard by counsel, and he may defend himself, and he shall have a right to produce witnesses and proofs in his favor, and meet the witnesses who are produced against him face to face.’

In identical language this statutory provision has been brought down into the present code of criminal procedure, Act No. 175, Pub. Acts 1927, 3 Comp.Laws 1929, § 17129, Stat.Ann. § 28.854. See 2 Comp.Laws 1857, § 5704; 2 Comp.Laws 1871, § 7503; 2 How.Stat.1882, § 9068; 3 Comp.Laws 1897, § 11796; 3 Comp.Laws 1915, § 15623.

A companion statutory provision was enacted in 1857, Act No. 109, § 1, Laws of Michigan 1857, 2 Comp.Laws 1857, § 5675. It provided: ‘That an Attorney appointed by a Court to defend a person indicted for any offense, on account of such person being unable to procure counsel, shall be entitled to receive from the County Treasury, on the certificate of the presiding Judge that such services have been duly rendered, one of the following fees: * * *’

In substance this provision has been continued in the statute law¹ and is now a part of the code of criminal procedure, supra, 3 Comp.Laws 1929, § 17486, Stat.Ann. § 28.1253, which now provides: ‘Whenever any person charged with having committed any felony or misdemeanor shall be unable to procure counsel, and the presiding judge shall appoint some attorney to conduct the defense, the attorney so appointed shall be entitled to receive from the county treasurer on the certificate of the presiding judge that such services have been duly rendered, such an amount as the presiding judge shall in his discretion deem reasonable compensation for the services performed.’

In comparatively recent years these constitutional and statutory provisions have been considered and construed by this court. These decisions stem from the language written by the late Mr. Chief Justice Wiest, in People v. Williams, 225 Mich. 133, 137, 138, 195 N.W. 818, 819: ‘An accused is not entitled, as of right, to have counsel assigned by the court to advise him relative to his plea. The state Constitution, art. 2, § 19, secures to an accused the right ‘to have * * * counsel for his defense.’ This does not mean he shall have counsel at public expense. It is a guaranty of right to employ and have counsel, a right not always recognized in early English criminal cases. Section 15623, 3 Comp.Laws 1915, also allows an accused to be heard by counsel. This is only declaratory of the right secured to an accused by the provision mentioned in the Constitution, and is on a par with the right to produce witnesses and proofs in his favor, but does not mean he shall have counsel at public expense. Section 15912, 3 Comp.Laws 1915, permits the court to appoint an attorney at public expense to conduct the defense of an accused when he is unable to procure counsel. This statute is permissive; its provisions require a showing of inability of an accused to procure counsel, and as a rule, to which, of course, there may be exceptions, cannot be invoked by an accused until after plea, and not at all under a plea of guilty. The record discloses no application by defendants for counsel during the period their pleas of not guilty stood, or at any other time, and there is no merit in the claim that counsel should have been appointed to represent them.'

In People v. Pisoni, 233 Mich. 462, 206 N.W. 986, on April 11, 1924, the defendants pleaded guilty to a violation of the prohibition law. The next day, before sentence, the circuit judge refused to allow counsel to see the defendants, explaining ‘that the defendants had pleaded guilty, and no one could see them lest they changed their pleas to ‘not guilty’ and put the county to the expense of a trial.' Four days later the defendants in open court, again before sentence, asked to change their pleas to not guilty. They were again denied the right to have counsel of their own choice, or change their pleas, and sentenced. On appeal, the sentences quite properly were set aside, on the ground that the circuit judge should have allowed the defendants the right to have counsel, and to change their plea before sentence. This case follows People v. Merhige, 212 Mich. 601, 180 N.W. 418, which is here relied upon by petitioner. These decisions do not control the instant case wherein the petitioner now seeks his release by habeas corpus some 15 years after his conviction by a plea of guilty, and where no request for counsel or to change his plea was made before or at the time of sentence.

In People v. Harris, 266 Mich. 317, 318, 320, 253 N.W. 312, the court said:

‘This is habeas corpus, with ancillary writ of certiorari, to inquire into the legality of the confinement of defendant in the state prison at Jackson. Defendant contends:

‘(1) That the court refused to appoint proper counsel for him.

‘The appointment of counsel is discretionary with the court and one who pleads guilty is not entitled to such appointment. People v. Williams, 225 Mich. 133, 195 N.W. 818.

* * *

‘Habeas corpus is not a substitute for writ of error to inquire into the regularity of the trial and conviction. On habeas corpus the question is solely one of jurisdiction of the court to enter the judgment of conviction and sentence. In re Gardner, 260 Mich. 122, 244 N.W. 253;In re Lamanna, 263 Mich. 62, 248 N.W. 550. Without accompanying writ of certiorari, the question would be determined from the face of the records. The accompanying writ of certiorari is merely ancillary, not to be a substitute for writ of error nor to change the scope of review on habeas corpus, but to supply material for determination of jurisdiction. In re Gardner, supra; In re Moynahan, 255 Mich. 497, 238 N.W. 169.’

In People v. Crandell, 270 Mich. 124, 258 N.W. 224, the defendant,...