People v. Barbara, 14

• Decision Date: 21 November 1973
• Docket Number: No. 14,14
• Citation: 212 N.W.2d 14
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Peter R. BARBARA et al., Defendants-Appellants.
• Court: Michigan Supreme Court

Page 14

212 N.W.2d 14

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Peter R. BARBARA et al., Defendants-Appellants.

No. 14.

Supreme Court of Michigan.

Nov. 21, 1973.

Rehearing Granted Jan. 22, 1974.

Opinion Withdrawn Feb. 19, 1974.

Alphonso R. Harper, Judicial Assistant of the Recorder's Court of the City of Detroit, amicus curiae for appellee.

Harrison, Friedman & Roberson by Robert S. Harrison, Detroit, for defendant Barbara.

Norman L. Lippitt, Detroit, for defendant Weinbaum.

Ivan E. Barris, George G. Newman, Detroit, for defendants Charles V. Fellrath and Noel P. Keane, only.

Before the Entire Bench.

WILLIAMS, Justice.

There are three issues in this case. First, is a felony defendant entitled to a preliminary examination? Second, is a "circuit court misdemeanor" treated in this respect like a felony? Third, is GCR 1963, 788, in any manner retrospective? We answer all three questions in the affirmative.

I--FACTS AND PROCEEDINGS

Defendants Barbara and Weinbaum were indicted by a Wayne County Citizens Grand Jury for soliciting personal injury claims, a misdemeanor punishable by up to six months imprisonment, and/or a fine not to exceed $500.00. M.C.L.A. Sec. 750.410; M.S.A. Sec. 28.642.

A Recorder's Court judge, sitting as examining magistrate, entered an order on April 20, 1973, stating that the defendants had no right to a preliminary examination, and setting a trial date for April 30, 1973. The judge formally denied the defendants' motion for a preliminary examination by order of April 30, 1973. This was appealed to the Court of Appeals, which affirmed that denial. By Supreme Court order, dated June 20, 1973, the lower court proceedings were stayed pending the decision in this appeal. Several other defendants, charged with the same offense, have joined in the appeal.

II--ISSUE 1--FELONY DEFENDANT & PRELIMINARY EXAMINATION

We find that a felony defendant comes within the rule of People v. Duncan 388 Mich. 489, 502, 201 N.W.2d 629, 635 (1972) which held that: "In all future cases wherein a defendant is accused of a felony, the right to a preliminary examination shall exist."

III--ISSUE 2--FELONY & CIRCUIT COURT MISDEMEANOR

GCR 1963, 788, adopted May 31, 1973, and given immediate effect, extends the long-established right to a preliminary examination, in cases not triable before a justice of the peace, to defendants accused by grand jury indictment. The rule provides:

"Rule 788. Preliminary Examination After an Indictment.

"Whenever an indictment shall be returned by a grand jury or a grand juror, further proceedings in the case shall be in like manner as upon formal complaint and the people and the accused shall be entitled to a preliminary examination before an examining magistrate in conformity with Chapter VI of The Code of Criminal Procedure; MLCA 766.1 et seq.; MSA 27.919 [sic; MSA 28.919] et seq., as far as applicable. The rule shall apply to all pending cases in which the right to a preliminary examination has been and is presently being asserted."

The reference to the Code of Criminal Procedure is a reference in part to M.C.L.A. Sec. 766.2; M.S.A. Sec. 28.920, which entitles the accused to a preliminary examination for any criminal offense not cognizable by a justice of the peace. Of course, the Constitution of 1963, art. 6, Sec. 26, abolished the offices of justice of the peace, effective at the expiration of 5 years from January 1, 1964, or upon intervening act of the legislature. However, the test of "not cognizable by a justice of the peace" persists, unchanged, throughout the Code of Criminal Procedure.

Whether an offense is triable before a justice of the peace is the historical test whereby misdemeanors insufficiently serious to warrant the safeguard of a preliminary examination are distinguishable from "high" or "circuit court" misdemeanors. Historically, by statutory provision, only misdemeanors carrying a penalty not exceeding $100 fine and three months imprisonment have been cognizable by a justice of the peace. See 1857 C.L. Sec. 3924; 1871 C.L. Sec. 5525; 1897 C.L. Sec. 1019; 1915 C.L. Sec. 15769; 1929 C.L. Sec. 17426; M.C.L.A. Sec. 774.1; M.S.A. Sec. 28.1192.

In cases not triable before a justice of the peace, a defendant charged by information has been entitled to a preliminary examination. People v. Dochstader, 274 Mich. 238, 243, 264 N.W. 356, 358 (1936). Therefore, since any offense punishable by more than $100 fine and three months imprisonment is an offense not cognizable by a justice of the peace, a defendant accused of such an offense is entitled to a preliminary...