People v. Collins, Docket No. 16059

• Decision Date: 27 March 1974
• Docket Number: No. 3,Docket No. 16059,3
• Citation: 52 Mich.App. 332,217 N.W.2d 119
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard David COLLINS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 119

217 N.W.2d 119

52 Mich.App. 332

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard David COLLINS, Defendant-Appellant.

Docket No. 16059.

Court of Appeals of Michigan, Division No. 3.

March 27, 1974.

Released for Publication April 30, 1974.

Richard D. Collins, in pro per.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Jon R. Newman, Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and HOLBROOK and McGREGOR, JJ.

T. M. BURNS, Presiding Judge.

Defendant was arrested without a warrant on May 22, 1972, for the murder of a grocery store owner. The following morning, pursuant to M.C.L.A. § 764.13; M.S.A § 28.871(1), trooper Gary Jacobson signed complaints charging the defendant, Inter alia, with felony murder. M.C.L.A. § 750.316; M.S.A. § 28.548. Defendant was arraigned before the district judge on June 14, 1972, and was bound over to the circuit court for trial. On June 26, 1972, an information was filed in the Clinton County Circuit Court; however, the arraignment scheduled for that date was adjourned to permit the defendant an opportunity to file a motion to quash.

On July 24, 1972, defendant Collins filed a motion to quash the information and dismiss the case. Argument was had on the motion on September 5, 1972, and the circuit court denied the motion.

Trial commenced on September 26, 1972, and concluded on October 2, 1972, with a jury verdict of guilty of murder in the first degree. Defendant was sentenced on October 5, 1972, to life imprisonment and now appeals.

The sole issue raised by defendant on appeal is whether a conviction based upon an information and belief complaint, written as an eyewitness complaint, is fatally defective when the complaint failed to allege the grounds upon which the complainant's information and belief were based.

Defendant contends that the warrant in the instant case was unconstitutionally issued since it was based on a complaint which was conclusory and which failed to identify sources of information. He further contends that his arrest under the (1973), where the facts are almost identical of his rights guaranteed by the Fourth and Fourteenth Amendments of the United States Constitution and Const.1963, art. 1, § 11. Therefore, defendant maintains that since his arrest was illegal, jurisdiction over his person never attached and his conviction is null and void.

The complaint against defendant does not state that it was made on information and belief. In People v. Mosley, 338 Mich. 559, 564, 61 N.W.2d 785, 788 (1953), the Court stated:

'This Court, in People v. Lynch, 29 Mich. 274 (1874); Potter v. Barry Circuit Judge, 156 Mich. 183, 120 N.W. 586 (1909); and People v. Czckay, 218 Mich. 660, 188 N.W. 376 (1922), settled the question that a complaint which, upon its face, purports to be made upon the knowledge of the affiant, is a sufficient compliance with the statute, and that it is incompetent for a defendant, upon arraignment, to impeach the complaint by showing a lack of knowledge by the complaining witness.'

Such is the case here. Since the complaint appeared to be made upon the knowledge of the affiant, trooper Jacobson, defendant was precluded from impeaching the complaint by showing that trooper Jacobson was without personal knowledge of the commission of the crime or the identity of the defendant.

Although People v. Mosley, Supra, may be under some question by reason of the statement of the majority of the Court in the case of People v. France, 370 Mich. 156, 121 N.W.2d 476 (1963), of an inclination to reexamine the Mosley rule, 'under a proper record', we do now, as previously in People v. Roney, 7 Mich.App. 678, 153 N.W.2d 175 (1967), and People v. Linscott, 14 Mich.App. 334, 165 N.W.2d 514 (1968), rule that we have no basis for proceeding on the assumption that People v. Mosley, Supra, and cases therein cited are not still controlling authority.

We are also aware that in People v. Hill, 44 Mich.App. 308, 205 N.W.2d 267 (1973)8 where the facts are almost identical to the instant case, the Court in citing Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), and Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), to define the Fourth Amendment requirements as to probable cause sufficient to justify the issuance of a warrant, interpreted the Giordenello decision as overruling the long line of Michigan cases preventing a defendant from impeaching the complaint by showing a lack of personal knowledge of the complaining witness when the complaint purports to be made by an eyewitness. We decline, however, to follow this interpretation and find People v. Mosley, Supra, persuasive.

There is ample Michigan authority to the effect that the positive sworn statements of the complaining witness conferred jurisdiction upon the district court to conduct a preliminary examination and upon the trial court to...