McLeod, In re, 189

• Decision Date: 03 June 1957
• Docket Number: No. 189,189
• Parties: In the Matter of Norman McLEOD. Motion
• Court: Michigan Supreme Court

Page 340

83 N.W.2d 340

348 Mich. 434

In the Matter of Norman McLEOD.

Motion No. 189.

Supreme Court of Michigan.

June 3, 1957.

Frederick Ziem, Pontiac, prosecutor, for the State.

S. James Clarkson, Detroit, for petitioner.

Before the Entire Bench.

CARR, Justice.

It appears from the record before us in this matter that the petitioner, Norman McLeod, was charged in the circuit court of Oakland County with the offense of attempting to procure the commission of an act of gross indecency in violation of C.L.1948, § 750.338b (Stat.Ann. 1954 Rev. § 28.570). To such charge he pleaded guilty, and under date of March 5, 1956, he was placed on three years' probation by the circuit judge who took the arraignment. Shortly thereafter, on or about May 14, 1956, he was taken into custody for investigation on a charge of statutory rape. The probation officer of the county filed a petition in the court asking that an order issue requiring McLeod to show cause why his probation should not be revoked. Said order issued under date of May 17, 1956, and on the same date petitioner was taken before the circuit judge who had made the probationary order. Testimony was taken indicating that the terms of the probation had been violated by the commission of the offense above mentioned. In consequence, the probation was revoked, and petitioner was sentenced to a term of not less than one and one-half years nor more than two years.

The petition filed in this Court by McLeod sought issuance of a writ of habeas corpus to inquire into the legality of his imprisonment in the Michigan Reformatory at Ionia under the sentence imposed on him by the Oakland County circuit court and also a writ of certiorari to said court to review the record in connection with the revocation of the probationary order. Said writs were issued, and returns thereto have been made by the warden of the Michigan Reformatory and by the circuit judge. The cause has been submitted on typewritten record and briefs. It is the claim of the petitioner in substance that the proceeding leading to the revocation of his probation was fatally defective in that no written copy of the charges against him was ever served on him as required by C.L.1948 § 771.4 (Stat.Ann. 1954 Rev. § 28.1134). It is conceded that the statute was not complied with in the respect indicated, and, further, that the order to show cause was not served on petitioner prior to the hearing.

The return to the writ of certiorari contains a transcript of the proceedings taken in court at the hearing on May 17, 1956. It does not appear that the attention of the circuit judge was called to the fact that no copy of written charges alleging wherein the probationary order had been violated had been served on petitioner or that the show cause order had not been served. The assistant prosecuting attorney handling the matter on behalf of the people stated to the court that McLeod had been brought in for an alleged violation of his probation. The judge thereupon ascertained that McLeod was present in court and informed him that he was entitled to obtain counsel if he wished to do so, and asked whether he desired to have counsel. To such question McLeod replied 'I can't afford to.' Thereupon the judge advised the probationer that the statute did not require the county to furnish counsel for him, and the hearing proceeded.

The father of the 14-year-old girl against whom the offense of statutory rape was claimed to have been committed was examined as a witness and testified to finding McLeod and the girl in a compromising situation in an automobile. It was the claim of said witness that the offense was committed. The girl gave similar testimony. McLeod testified in his own behalf, denying that he had committed any offense on the occasion referred to by the witnesses for the people.

In support of his petition for the writs counsel for petitioner has filed in this Court a statement by the mother of the girl against whom the offense above mentioned was claimed to have been committed, and also what purports to be a copy of an affidavit made by the girl herself repudiating the testimony that she had given on the hearing of May 17, 1956. The mother alleged in her statement that she had witnessed what occurred, and that the act claimed by the father of the girl did not take place. It appears from said statement that the mother knew of the hearing to be held before the circuit judge but did not wish to testify with reference to the alleged facts. It appears also that police officers were aware of her claim that she could testify to pertinent facts if called as a witness, but the transcript of the record does not show that the circuit judge was so advised. The proofs taken justified the revocation of the probationary order, leaving as the...