People v. Birch, 80

• Decision Date: 05 December 1950
• Docket Number: No. 80,80
• Citation: 44 N.W.2d 859,329 Mich. 38
• Parties: PEOPLE v. BIRCH et al. PEOPLE v. PICKETT et al.
• Court: Michigan Supreme Court

Page 859

44 N.W.2d 859

329 Mich. 38

PEOPLE v. BIRCH et al.

PEOPLE v. PICKETT et al.

No. 80.

Supreme Court of Michigan.

Dec. 5, 1950.

Leon A. S. Seidel, Pros. Atty., Genesee County, Richard C. Fruit, Asst. Pros. Atty., Flint, for the people.

Cline & George, Flint, for appellees.

Before the Entire Bench.

CARR, Justice.

The questions involved in these cases arise out of certain proceedings in the circuit court of Genesee county. The material facts are not in dispute. On March 2, 1948, the prosecuting attorney of said county filed a petition in the court setting forth that information had been placed before him indicating that certain crimes had been committed within the county, and further alleging that, if such information were false, the crime of perjury had been committed. An inquiry to be conducted in accordance with the so-called one an grand jury provisions ¹ of the criminal code of the State was asked, for the purpose of determining the truth or falsity of the charges of criminal conduct to which the petition referred. The prosecutor further asked that 'necessary procedure be taken to designate or appoint or have designated or appointed, in accordance with the statutes in such cases made and provided, one of the circuit judges of the seventh judicial circuit or one of the judges of another judicial circuit for the State of Michigan, to conduct said one man grand jury inquiry and investigation * * *', and that witnesses be subpoenaed for the purpose of taking testimony.

At the time the petition was filed the Honorable Paul V. Gadola was acting as presiding judge of the Genesee circuit court, and, on the same day, he made an order stating that on the 8th of March following the court would convene at the court house in the city of Flint ofr the purpose of conducting an investigation as prayed. The order further directed the attendance of the prosecuting attorney of the county, or someone duly appointed in his place, the official court reporter, and the sheriff and deputies, for the purpose of rendering assistance in such investigation. The clerk of the court was further directed to issue subpoenas to witnesses on the request of the prosecutor.

Under date of March 16, 1948, Judge Gadola made a further order in the matter, referring to the petition of the prosecuting attorney and designating circuit judge Karl K. Leibrand to conduct the investigation 'together with this court, in an advisory capacity or otherwise, as this court may from time to time designate.' The order recited that Judge Leibrand had been assigned to the Genesee circuit by the presiding circuit judge of the State. Thereafter Judge Leibrand proceeded to conduct the investigation. Witnesses were called and examined by him, findings made, and warrants issued including the warrants involved in the above entitled cases. He also made an order appointing Melvin E. Orr, a member of the bar of Michigan, to assist in the investigation, and appointed investigators and an official stenographer, requiring that they take the statutory oath of secrecy.

It further appears that Judge Gadola made and entered an order in terms authorizing the judge conducting the investigation to appoint a member of the bar to assist therein, and that he and Judge Leibrand joined in an order designating Mr. Orr as special assistant prosecuting attorney of Genesee county to aid and assist the grand jury investigation. Judge Gadola also made an order authorizing payment to another attorney for time spent as special assistant prosecutor in connection with the grand jury; and further, by order filed September 16, 1948, directed that cases resulting from the investigation should be tried before a circuit judge from without the seventh judicial circuit, assigned to such circuit by the presiding circuit judge of the State. The orders appointing special prosecutors were made at the request of the prosecuting attorney of the county by petitions addressed to the court.

The warrants issued for the arrest of the defendants in the instant cases were duly served. In the case of People v. Pickett, et al., an examination was held before the Honorable H. Russel Holland, one of the circuit judges of the Oakland county circuit court, sitting in Genesee county by designation in accordance with the statute. in People v. Birch, et al., no examination was held. Identical motions were presented in both cases, asking for the dismissal of the warrants on the ground that Judge Leibrand had no authority to issue them, and alleging further that the petition of the prosecuting attorney was fatally defective because of failure to aver specific facts, that it was insufficient to authorize the holding of the investigation, and that the statutory provisions in accordance with which such investigation was conducted were unconstitutional and void. Judge Holland held that the grounds on which the motions were based, other than those relating to the authority of Judge Leibrand, were without merit. On the basis of the proceedings taken in the Genesee circuit court he came to the conclusion thatJudge Gadola, by his order of March 2, 1948, had constituted himself the grand juror to conduct the inquiry, that the subsequent order directing Judge Leibrand to act in the matter amounted to an attempted delegation of the exercise of the authority that Judge Gadola had assumed, that such action was not authorized by the statute, and that it was in consequence void. An order was entered granting the motions to dismiss the warrants. On leave granted, an appeal on behalf of the people of the State has been taken to this court by the prosecuting attorney of Genesee county.

The first question for consideration is whether by his order of March 2, 1948, Judge Gadola constituted himself a grand juror for the purpose of conducting the investigation. It is, we think, significant that the order did not specifically so provide. As before noted, the petition of the prosecutor to which the order referred asked for an assignment of the inquiry to some judge of the local circuit or to a visiting judge. We think it a fair inference from the specific language used that Judge Gadola, acting as presiding judge of the circuit, intended to recognize the fact that the petition had been filed for an investigation, and to indicate by his order that the court regarded it as requiring judicial action. The subsequent order in terms assigning the investigation to...