People v. Banning, 79

• Decision Date: 05 December 1950
• Docket Number: No. 79,O,79
• Citation: 329 Mich. 1,44 N.W.2d 841
• Parties: PEOPLE v. BANNING. ctober Term.
• Court: Michigan Supreme Court

Page 841

44 N.W.2d 841

329 Mich. 1

PEOPLE v. BANNING.

No. 79, October Term.

Supreme Court of Michigan.

Dec. 5, 1950.

William G. Comb, Detroit, for defendant-appellant.

Stephen J. Roth, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Lansing, Gerald K. O'Brien, Wayne County Pros. Atty., Ralph Garber, Chief Asst. Pros. Atty., Garfield Nichols, Asst. Pros. Atty., and Michael A. Guest, Asst. Pros. Atty., Detroit, for the People.

Henrietta E. Rosenthal, Detroit, amicus curiae.

Before the Entire Bench.

BUTZEL, Justice.

Defendant, Frank Banning, was charged with assault with intent to kill and murder one Benton Hacker, a police officer, in an information filed on April 27, 1948. The trial was set for June 9, 1948. The original certified record, together with the wrapper showing the court proceedings in detail has been filed with this court. The wrapper shows that the defendant's attorney was notified on June 1, 1948, of the date set for the trial. This would indicate that an attorney had been retained by defendant as early as June 1, 1948, and possibly prior thereto. On June 3, 1948, the attorney entered his formal appearance, and made a motion for a continuance for a number of weeks. He claimed that he had other cases pending in the recorder's court, in the circuit court, and in the court of common pleas. The motion was denied. The attorney did not state what the other cases were, or that he had been unable to secure a continuance of them. The attorney claims that there were 34 witnesses endorsed on the information, and that with other engagements it required time to make a proper investigation. The information had been on file over five weeks prior to the time the request for continuance was made. The attorney was present at the defendant's trial. There was no abuse of discretion by the trial judge in refusing the continuance, there was no denial of due process.

Defendant and a co-defendant were tried together. The co-defendant, shortly after the trial had begun, stated through his attorney in open court that he wanted to change his plea of not guilty to that of guilty. The judge carefully interrogated him, and accepted the plea. Defendant, after the jury had been impaneled, and the taking of testimony had begun, also requested that his plea of not guilty be changed to that of guilty. The court carefully interrogated him, and when the defendant stated that there might be a question of self-defense in the case, the court refused to accept the plea of guilty and proceeded with the trial.

The police officer who was the victim of the assault with intent to kill testified that he and a fellow police officer were alerted by radio to look for two men in a black Plymouth coupe. Almost immediately thereafter such a car traveling at a speed of from 60 to 65 miles per hour passed to the right of the police officers' car which could easily be identified as a police car. Defendant's car was finally stopped after it ran over an embankment of railroad tracks. When the officers got out to question the occupants, defendant fired a shot at the witness and wounded him.

After this testimony was given defendant again asked that he be permitted to withdraw the plea of not guilty and plead guilty. The jury was excused and the following colloquy took place:

'Mr. LaFata: If the Court please, at this tiem, I wish to reoffer the defendant's Frank Banning's plea of guilty as charged to the information, and ask that the former plea of not guilty be withdrawn.

'The Court: Mr. Banning, the only way the Court can accept a plea of guilty is that it must be completely free and voluntary, without any strings attached whatsoever.

'Defendant: I understand that, Your Honor.

'The Court: You understand that?

'Defendant: Yes, sir.

'The Court: Do you now wish at this time to withdraw your plea of not guilty formerly entered in this case and plead guilty to the charge in the information which I read to you a little while ago?

'Defendant: Yes, sir.

'The Court: Are you pleading guilty freely and voluntarily?

'Defendant: Yes, sir.

'The Court: No one forced you to plead guilty?

'Defendant: No, sir.

'The Court: Has anyone promised you any leniency on the part of the Court if you plead guilty?

'Defendant: No, sir.

'The Court: You have consulted with your counsel, Mr. LaFata?

'Defendant: Yes, sir.

'The Court: You understand under the law of this State, the jury having been impaneled, you are entitled to continue the trial?

'Defendant: Yes.

'The Court: The People must prove you guilty beyond a reasonable doubt; you understand that?

'Defendant: Yes.

'The Court: That you have a right, through your counsel, to question any and all the witnesses?

'Defendant: Yes, sir.

'The Court: And you also have a right, under the law, to put in your own defense if you so desire; you understand all that?

'Defendant: Yes.

'The Court: You are pleading guilty to this offense because you are guilty:

'Defendant: Yes, sir.

'The Court: There is no question about it at all?

'Defendant: No, sir.

'The Court: You have been in some trouble before. You do know something about the machinations of the criminal law, do you not? You are sure you know what you are doing?

'The defendant: I do.

'The Court: The Court will accept your plea. I refer you to the psychopathic clinic and the probation department for sentence on June 22nd, and remand you to the custody of the sheriff.'

When the defendant came before the judge for sentence, his attorney asked the court to allow the defendant to change his plea from guilty to not guilty, on the grounds that he had not had sufficient time to prepare for the trial. The motion was denied and the defendant was sentenced to 50 to 60 years in the State Prison. This...