People v. Cherry, Docket No. 8862

• Decision Date: 30 October 1970
• Docket Number: Docket No. 8862,No. 1,1
• Citation: 183 N.W.2d 857,27 Mich.App. 672
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick Eugene CHERRY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 857

183 N.W.2d 857

27 Mich.App. 672

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick Eugene CHERRY, Defendant-Appellant.

Docket No. 8862.

Court of Appeals of Michigan, Division No. 1.

Oct. 30, 1970.

Released for Publication Feb. 26, 1971.

Armand D. Bove, Harper Woods, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Luvenia D. Dockett, Asst. Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and T. M. BURNS and O'HARA, ^* JJ.

O'HARA, Judge.

Defendant was charged with assault with intent to rape. ¹ On the date of trial the trial court, on motion of the prosecutor, and without objection amended the information to charge taking indecent liberties with a child under the age of sixteen years. ² He was convicted of the charge, and he appeals of right.

The issue presented here is whether C.L.1948, § 767.76 (Stat.Ann.1954 Rev. § 28.1016) authorizes the trial court to amend the indictment or information to charge an added count of a new crime, not an included offense of the crime originally charged, when such additional charge is disclosed by the preliminary examination and arises from the same transaction and shares some of the characteristics of the crime originally charged.

C.L.1948, § 767.76 reads, in relevant part, as follows:

'The court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence. If any amendment be made to the substance of the indictment or to cure a variance between the indictment and the proof, the accused shall on his motion be entitled to a discharge of the jury, if a jury has been impaneled and to a reasonable continuance of the cause unless it shall clearly appear from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made or that his rights will be fully protected by proceeding with the trial or by a postponement thereof to a later day with the same or another jury.'

This question has been considered, once, by this court in People v. Burd No. 1. (1968), 13 Mich.App. 307, 164 N.W.2d 392. Burd was charged with breaking and entering with intent to commit larceny. On the date of trial the information was amended to charge Burd with breaking and entering with intent to commit an unspecified felony. This court reversed Burd's conviction stating at 316, 317, 164 N.W.2d at 397:

'It is acknowledged that such a motion is permitted under the provisions of C.L.1948, § 767.76 (Stat.Ann.1954 Rev. § 28.1016). But this statute does not authorize the court to permit the changing of the offense nor the making of new charges by way of amendment. People v. Sims (1932), 257 Mich. 478, 481, 241 N.W. 247. An information charging one with breaking and entering with the intent to commit a larceny is totally different from one charging breaking and entering with the intent to commit an undescribed felony, and an information without further defining the felony, is fatally defective. People v. Westerberg (1936), 274 Mich. 647, 265 N.W. 489. The objection to the amendment made on behalf of the defendant in the trial court was sufficient; the fact that defendant did not request a continuance or reexamination and rearraignment cannot be considered as a waiver of the circuit court's lack of jurisdiction. People v. Monick (1938), 283 Mich. 195, 200, 277 N.W. 883. This is so because the jurisdiction of the circuit court is limited to the crimes included Within the return of the examining magistrate.'

In Burd, the added offense was disclosed by the...