People v. Burd, Docket No. 3655

• Decision Date: 24 September 1968
• Docket Number: Docket No. 3655,No. 3,3
• Citation: 164 N.W.2d 392,13 Mich.App. 307
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Keith E. BURD, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 392

164 N.W.2d 392

13 Mich.App. 307

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Keith E. BURD, Defendant-Appellant.

Docket No. 3655.

Court of Appeals of Michigan, Division No. 3.

Sept. 24, 1968.

Released for Publication Feb. 7, 1969.

Earl Waring Dunn, Dunn, Russell & Dunn, Grand Rapids, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, James K. Miller, Pros. Atty., Kent County, Grand Rapids, for appellee.

Before HOLBROOK, P.J., and QUINN and McINTYRE, ^* JJ.

ROBERT W. McINTYRE, Judge.

This case arises under an order granting an application for a delayed appeal.

On October 29, 1965, an information was filed charging the defendant herein with breaking and entering an occupied dwelling house with the intent to commit a larceny therein, contrary to Michigan Statutes Annotated 28.305. ¹ An order was entered appointing counsel for the defendant at the expense of the people. Counsel so appointed petitioned for a preliminary examination, and the cause was remanded to the police court for the city of Grand Rapids for this purpose. The transcript of the examination is not complete concerning objections and discussions relating to a motion made by the assistant prosecuting attorney, Mr. Stevens.

'Mr. Stevens: Before the People proceed any further in this matter, the charge is breaking and entering. The complaint and warrant in this case were apparently drawn under the old statute, 28.305, and refer with intent to commit the crime of larceny therein. The People at this time move to amend the complaint and warrant. We would move to strike the word larceny as superfluous and amend the complaint and warrant to say simply with the intent to commit a felony, (discussion regarding motion).

'The Court: Let's proceed on the basis that there is no larceny charge.'

This constitutes the entire record concerning the motion to amend the complaint and warrant, and any objections or discussion which may have taken place concerning that motion.

At the conclusion of the testimony the following took place:

'Mr. Stevens: The People move at this time that the respondent be bound over for trial, it having been proved that the occupied residence of George Plafkin was damaged to the extent of $600, already, with the repairs incomplete, and malicious destruction of property in excess of $100 is one felony. It has also been shown that the front door was broken in and the respondent was found within the premises. On that basis there is certainly probable cause to believe he was guilty of the damages found on the premises and I move he be bound over for trial. (Arguments)

'The Court: Gentlemen, I think I will bind this case over. I realize Mr. Dilley has a good argument that may prevail. It does seem that a crime was committed and at least probable cause to believe the respondent did commit the crime. (Discussion as to bond--reduced to $1,000).

The magistrate filed his return on December 15, 1965, finding that the crime of 'breaking and entering--occupied dwelling' had been committed and that there was probable cause to believe the respondent guilty of the commission of the offense, citing no statutory designation, and requiring the defendant to appear in the circuit court at Grand Rapids on December 17, 1965.

A complaint and warrant accompanied the return of the police court charging the defendant in the following words:

'Keith Burd did unlawfully, feloniously, and burglariously break and enter the occupied dwelling house building of George Plafkin, with the intent to commit the crime of larceny therein, contrary to the provisions of § 28.305, of Michigan Statutes Annotated, as amended, * * *.'

Someone--and a careful examination of the calendar entries, the file, and the transcript, does not indicate the identity of that person--drew a pen line through the words 'commit the crime of larceny' and inserted over that phrase, the words 'a felony'. This alteration was made both in the complaint and in the warrant. In the course of the preliminary examination, in justification of a question made to a police officer over objection by the assistant prosecutor, the attorney for the defendant stated:

'Your Honor, the point of this questioning is to determine, first of all, the matter of the intention to commit a larceny therein.'

Whereupon the Court said:

'Go ahead on that basis because I would like to know what this situation is.'

On December 20, 1965, the defendant was brought before the circuit court, accompanied by his counsel. After some preliminary remarks, the court asked that the information be read, whereupon the deputy prosecutor read as follows:

'It is charged that: On the 26th day of October, 1965, at the city of Grand Rapids, county of Kent, Keith Burd did unlawfully, feloniously and burglariously break and enter the occupied dwelling-house building of George Plafkin, with the intent to commit the crime of larceny therein, contrary to the provisions of § 28.305, Stat.Ann., as amended.'

The respondent stood mute, and a plea of not guilty was entered on his behalf. Trial was set before the jury on March 14, 1966. On March 11, 1966, 3 days before the commencement of the trial, the office of the prosecuting attorney filed a written motion to amend the information, striking the word 'larceny', and adding 'with intent to commit a felony'. That motion was noticed for hearing on Monday, March 14, 1966, which was the day for the commencement of trial. Filed with this motion on March 14, 1966, was a document entitled, 'amended proceedings by information', the pertinent part of which reads as follows:

'James K. Miller, prosecuting attorney for the county of Kent, aforesaid, for and in behalf of the People of the State of Michigan, comes into court, in January term thereof, A.D. 1966, and gives it here to understand and be informed, that on the 26th day of October, 1965, at the city of Grand Rapids, county of Kent, Keith Burd, did unlawfully, feloniously and burglariously break and enter the occupied dwelling house building of George Plafkin, with the intent to commit a felony therein, to-wit: Malicious destruction of property, over $100, contrary to the provisions of § 28.305, of Michigan Statutes Annotated, * * * as amended, and against the peace and dignity of the People of the State of Michigan.'

The trial transcript commencing on March 14, 1966, indicates that upon the opening of court, and in the absence of the jury, an assistant prosecutor moved to amend the information 'to conform to the motion made by the prosecuting attorney at the preliminary examination of this charge' and asking the court to allow the filing of the amended information at that time. The attorney for the defendant stated that he had received a copy of the proposed amended information 'the other day', and he objected to the amending of the information of the basis that the preliminary examination was conducted 'on the original idea that the prosecution was going to prove the intention of committing a larceny in the premises.' The trial court then referred to the transcript of the preliminary examination and made the following statement:

'All right. At that time the prosecutor Mr. Stevens, said: 'We would move to strike the word larceny as superfluous and amend the complaint and warrant to say simply, with the intent to commit a felony.' I think under the circumstances that Mr. Burd has been apprised of the claims here involved and I am sure that there is no dispute as to which incident is involved. It isn't that we are dealing with several contemporaneous incidents. They are all the same date. I will deny your objections and grant the motion to amend and I will ask that Mr. Burd be arraigned on the amended information at this time.'

Attorney for the defendant pointed out to the trial judge that the transcript was incomplete since the discussion regarding the motion and the comments made on the matter were not set forth in the transcript. The trial court then said:

'All right. I don't like any more than you do the fact that we don't have a full and complete transcript of each and every incident that takes place in the lower court. I am aware too that that has been quite customary and frequently the court even suggests we go off the record on this particular matter or something like that. The purpose of the preliminary examination is purely and simply to appraise the respondent of the basis upon which the complaint and warrant are issued and to determine whether there is probable cause a crime was committed and probable cause that he committed the crime. If he has had an opportunity to hear the evidence, it seems to me the matter of the granting of the motion to amend is a matter of discretion with the lower court in the granting of that motion at that time and I think I would not find abuse of discretion. Accordingly, I feel the objections will be denied. I think he should be arraigned.'

Attorney for the defendant thereupon waived the reading of the amended information and indicated the respondent would stand mute. The court entered a plea of not guilty on his behalf. The jury was then called in, the case was tried, and the defendant found guilty as charged.

The sole issue before the court upon appeal is whether the trial court had jurisdiction over a crime charged in the amended information. The defendant contends that jurisdiction was lacking because the crime charged in the amended information was not the one for which he was bound over by the examining magistrate. This court must answer that the contention of the defendant is correct.

It must be noted that in all matters and to all charges preferred against the defendant in the confused proceedings prior to trial, the defendant stood mute and therefore waived none of the error which may have accumulated in the preliminary proceedings, and neither admitted the jurisdiction of the trial court nor did he waive the right to challenge the...