People v. Burd, 114
| Decision Date | 17 May 1965 |
| Docket Number | No. 114,No. 2,114,2 |
| Citation | 1 Mich.App. 178,134 N.W.2d 843 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Keith E. BURD, Defendant-Appellant. Cal |
| Court | Court of Appeal of Michigan — District of US |
George R. Beach, Jackson, for appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, James G. Fleming, Pros. Atty., Jackson, for appellee.
Before LESINSKI, C. J., and BURNS and FITZGERALD, JJ.
On July 24, 1963, the appellant was charged with the crime of escaping prison under the provisions of C.L.S.1961, § 750.193 (Stat.Ann.1962 Rev. § 28.390). Appellant waived examination and was arraigned in Jackson County circuit court on August 6, 1963, on an information charging him with the crime of escaping prison and in addition, alleging that appellant was guilty of the offense of second felony under the habitual criminal sections of the criminal code, C.L.S.1961, § 769.10 (Stat.Ann.1954 Rev. § 28.1082). Appellant stood mute and a plea of not guilty was entered.
Prior to appointment of counsel, appellant filed with the circuit court a motion to amend the information. In support of this motion, appellant contended that to charge him with a felony and charge him as an habitual criminal in the same information would deprive him of the presumption of innocence on the felony charge of escaping prison by placing his prior felony conviction before the same jury.
On September 5, 1963, circuit judge John C. Dalton rendered an opinion denying appellant's motion, relying on and quoting from the case of In re Brazel (1940), 293 Mich. 632, at page 640, 292 N.W. 664, at page 667:
'We hold that it is not necessary to file a supplemental information where said previous convictions are known to the prosecuting attorney at the time of the filing of the information and are fully detailed therein, and that the intent and purpose of the statute are fully served by setting forth in the original information the previous convictions in detail, as well as the offense charged therein.'
Court-appointed counsel for appellant then filed in the Michigan Supreme Court an application for leave to appeal from the order of the circuit judge denying appellant's motion.
On the 14th day of August, 1964, the application for leave to appeal was granted by the Supreme Court. This appeal was one of the 160 cases transferred to the Court of Appeals by the Supreme Court on October 14, 1964. The charges against appellant have been adjourned in Jackson County circuit court pending decision on appeal; Keith Burd has yet to face trial for escaping prison.
The information in question charges Burd with escape from prison (first paragraph) and with being a second felony offender (third paragraph) after setting forth his prior conviction for arson (second paragraph). Burd contends that this information would unfairly place before a jury his prior criminal record, thus denying him a fair and impartial trial on the charge of escape.
A clearer understanding of Burd's objection to the information may be gained by reviewing current practice of the Jackson County circuit court regarding the trial of those charged as second or subsequent felons, as outlined in the brief of the prosecuting attorney.
In all cases where a principal crime other than escaping prison is charged as a second or subsequent felony, the defendant has had the opportunity of proceeding in the first trial without any reference to that part of the information alleging prior convictions. If a verdict of guilty on the principal crime is returned, the remainder of the information, alleging prior conviction(s), is then read to the jury and a second trial is had on the second (or third, etc.) offender charge. However, in cases where the principal crime is escaping prison as a second felony, only one trial is had where the previous felony sentence was being served at the time of the alleged escape. The whole information, including allegations of a past felony conviction, is read to the jury prior to its determination of guilt or innocence on the charge of escaping prison. This is what Burd sought to prevent by his motion to amend the information.
The case of In re Brazel (1940), 293 Mich. 632, 292 N.W. 664, relied upon by the circuit judge in rejecting Burd's motion to amend the information, does not go to the issue of the effect of such an information in a jury trial. Brazel pleaded guilty to an...
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