People v. Birmingham, Docket No. 2108

• Decision Date: 25 September 1968
• Docket Number: No. 1,Docket No. 2108,1
• Citation: 164 N.W.2d 561,13 Mich.App. 402
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie J. BIRMINGHAM, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 561

164 N.W.2d 561

13 Mich.App. 402

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie J. BIRMINGHAM, Defendant-Appellant.

Docket No. 2108.

Court of Appeals of Michigan, Division No. 1.

Sept. 25, 1968.

Released for Publication Feb. 14, 1969.

Herbert L. Harris, Harris, Stein & Hooberman, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Thomas P. Smith, Asst. Pros. Atty., Wayne County, Detroit, for plaintiff-appellee.

Before HOLBROOK, P.J., and LEVIN and PRATT ^*, JJ.

HOLBROOK, Presiding Judge.

On May 25, 1965, the defendant was charged in an information with assault with intent to murder ¹ in Recorder's Court for the city of Detroit. On November 4, 1965, a jury found him guilty of assault with intent to do great bodily harm less than the crime of murder, ² before Hon. John P. Scallen who sentenced him to 9 to 10 years in prison.

In the same case in a supplemental information, defendant was charged under the Habitual Criminal Act ³ of having been convicted of 3 other felonies prior to the last conviction. On March 16, 1966, in a jury trial, defendant was convicted under the supplemental information and sentenced to life imprisonment. Defendant in his appeal questions the constitutionality of the Habitual Criminal Act, particularly that portion (§ 769.13) that reads as follows:

'If at any time after conviction and either before or after sentence it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth in any of the 3 foregoing sections, the prosecuting attorney of the county in which such conviction was had, In his discretion, may file a separate or supplemental information in such cause accusing the said person of such previous convictions.' (Emphasis supplied)

Defendant asserts that his conviction and sentence to life imprisonment under the act denied him the equal protection of the law as guaranteed by the Fourteenth Amendment of the United States Constitution. The reason he gives is that the filing of the information under the Habitual Criminal Act by the prosecuting attorney is discretionary.

The act before the amendment made by P.A.1949, No. 56 read in part as follows:

'It shall be the duty of the prosecuting attorney of the county in which such conviction was had to file a separate or supplemental information in such cause accusing the said person of such previous convictions.' (Emphasis supplied)

The former act was held to be constitutional in People v. Palm (1929), 245 Mich. 396, 401, 223 N.W. 67 and People v. Gunsell (1951), 331 Mich. 105, 111, 112, 49 N.W.2d 83. The Gunsell case was decided after the amendment was operative. While these cases dealt with a different constitutional question (i.e., Ex post facto legislation) from the question in the instant case, they are indicative of the constitutionality of the Habitual Criminal Act as previously challenged. Defendant asserts that the Habitual Criminal Act permits the prosecuting attorney, through the exercise of his discretion, to practice invidious discrimination among persons or groups. A similar argument was raised concerning the discretionary powers of a prosecuting attorney in selecting the crime for which a defendant was to be charged and prosecuted, in People v. Mire (1912), 173 Mich. 357, 138 N.W. 1066. Therein Mr. Justice STEERE stated in part on pp. 363, 364, on p. 1068 of 138 N.W., as follows:

'The claim that this act is unconstitutional because it places a greater burden on one than upon another, does not give equal protection to all, and inflicts on one greater penalty than on another is based upon the fact that there are several kindred acts in this state, prescribing a less severe punishment, which include, to a greater or less extent, elements of the offense created by the act under which respondent was convicted. As a consequence, it is said the Legislature has so arranged these laws that the prosecuting attorney may at will choose the one under which he will proceed, and thus decide the penalty to be inflicted upon the accused, usurping in effect the power of the court to exercise its discretion in pronouncing sentence. The prosecuting attorney has been declared by this court to be a quasi judicial officer, and is vested with certain discretionary powers in the administration of the criminal law. As was pointed out in People v. Morris ((1890) 80 Mich. 634, 45 N.W. 591, 8 L.R.A. 685) the laws of this state, as well as of other states, present numerous cases of similar statutes covering allied offenses and degrees of offense, like the different forms of assault and of larceny, in which the nature of the case might render it possible for the prosecutor to bring any one of several different charges against the accused. So long as these laws are not repugnant, they are not invalid because the accused could have violated more than one of them at the same time in a certain transaction.'

The duties of a prosecuting attorney are set forth commencing at C.L.1948, § 49.153 (Stat.Ann.1961 Rev. § 5.751) which reads in part as follows:

'The prosecuting attorneys shall, in their respective counties, appear for the state or county, and prosecute or defend in all the courts of the county, all prosecutions, suits, applications and motions whether civil or criminal, in which the state or county may be a party or interested.'

A prosecuting attorney by the very nature of his duties is required to exercise discretion. 27 C.J.S. District and Prosecuting Attorneys § 10, p. 649 states:

'A prosecuting attorney is ordinarily vested with official discretion as to the institution of criminal prosecutions and as to the cases he will prosecute, and under the law in some jurisdictions he is charged with more important duties than formerly devolved on the prosecuting attorney and is vested with wide discretion relative to institution of both criminal and civil proceedings. Such discretion must, however, be exercised in good faith according to the dictates of his own judgment and conscience uncontrolled by the judgment or conscience of any other person, and in accordance with established principles of law, fairly, wisely, and with skill and reason; and he must at all times act in good faith and exercise all reasonable and lawful diligence in every phase of his work.'

We find that under the general rule just stated and under the laws of our State, a prosecuting attorney is required to exercise proper discretion in his duties, and this precludes his acting by reason of caprice or in such a manner as to result in invidious discrimination against persons or groups.

The defendant cites the cases of Griffin v. Illinois (1956), 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055; Cox v. Louisiana (1965), 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471; and McLaughlin v. Florida (1964), 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 as authority for the position that the constitutional guarantee of due process and equal protection requires procedures in criminal trials which allow no invidious discrimination. We agree with these cases but fail to find them applicable to the case at hand.

There have been several cases more directly in point from other jurisdictions that indicate to the Court the constitutionality of the Habitual Criminal Act. In People v. Johnson (1952), 412 Ill. 109, 114, 105 N.E.2d 766, 768, it is stated:

'Defendant lastly contends that the act violates constitutional requirements of due process and equal protection of the law by leaving it within the discretion of the State's Attorney whether to allege the prior convictions in the indictments. He refers to several purported instances of second or third offenders who were not sentenced under the Habitual Criminal Act, and argues that the act illegally delegates to a public official the power to decide which of the repeating offenders shall be subject to the heavier punishment under the act. We considered a similar contention in People v. Hanke (1945) 389 Ill. 602, 60 N.E.2d 395, and found it to be clearly...