People v. Cordell, 63.

• Decision Date: 29 January 1945
• Docket Number: No. 63.,63.
• Citation: 16 N.W.2d 78,309 Mich. 585
• Parties: PEOPLE v. CORDELL.
• Court: Michigan Supreme Court

309 Mich. 585

16 N.W.2d 78

PEOPLE

v.CORDELL.

No. 63.

Supreme Court of Michigan.

Oct. 11, 1944.

Writ of Certiorari Denied Jan. 29, 1945, See 65 S.Ct. 564.

George Cordell and others were convicted of having conspired to obstruct justice. The sentence imposed on defendant named was set aside at his request and the imposition of further sentence was held in abeyance until defendant's discharge or return from service in the Armed Forces. From the new sentence imposed, defendant appeals.

Affirmed.

Before the Entire Bench.

Appeal from Circuit Court, Wayne County; Earl C. Pugsley, judge.

Edward N. Barnard, of Detroit, for appellant.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Daniel J. O'Hara, Asst. Atty. Gen., for appellee.

BOYLES, Justice.

The only question of law in this case is whether the court had lost jurisdiction to sentence defendant by suspending sentence for about 19 months.

George Cordell, appellant, was informed against in Wayne circuit court, along with other defendants, charged with having conspired to obstruct justice. The case was tried before a jury with Hon. Earl C. Pugsley, judge of the Oceana circuit, presiding. On December 15, 1941, the jury returned a verdict of guilty as to 23 defendants including appellant. On January 7, 1942, Judge Pugsley sentenced Cordell to not less than two nor more than five years in State prison. Cordell set about perfecting an appeal to this court which was dismissed by order of this court on stipulation of counsel August 18, 1942.

On August 19, 1942, Cordell presented a petition to Judge Pugsley, reciting the dismissal of the appeal, alleging that he had been inducted into the armed services and ordered to report for service August 22, 1942, that he desired to voluntarily enlist, and asking that the court set aside the sentence and hold any other sentence in abeyance until he had been released from the armed services. On the same day Judge Pugsley entered the following order:

‘It is hereby ordered, adjudged and decreed that the sentence heretofore imposed upon the said George Cordell on the 7th day of January, A. D. 1942, be and the same is hereby set aside and held for naught.

‘It is further ordered, adjudged and decreed that any subsequent sentence that may be entered by this honorable court will be held in abeyance until the said George Cordell has been discharged and/or returned from service in the armed forces of the United States.’

Cordell served seven months and three days with the armed forces and was discharged because of a change in the age requirement. His service commenced August 22, 1942, and continued up to the month of March, 1943. He thereupon returned to this State. Defendant is in disagreement with the sentencing court as to what occurred thereafter. Judge Pugsley, in certifying the record to this court after leave to appeal was granted in the instance case, states:

‘I further certify that during the spring of 1943 the said petitioner did appear before this court while sitting in chambers in the circuit court in the city of Detroit, Wayne county, Michigan, and did then and there advise this court that he had been discharged from military services and that he had been further advised by military officials at the time of his discharge that his services should be more beneficial to the government in the conduct of the war industry in which he claimed to have been engaged immediately prior to the time he entered the military service of the United States. Whereupon this court took under advisement, without any promises or assurances to the petitioner, the further order and judgment of the court, and with the understanding that the said petitioner would later report to the court to abide the judgment and order of the court when and where he should be notified to do so.

‘I further certify that I caused further investigation to be made in the premises through the probation department of the circuit court of Wayne county, Michigan, and upon my return to Detroit in March, 1944, the said petitioner was notified to appear before this court, whereupon the proceedings were had as more fully appears in the foregoing transcript of proceedings had on March 29, 1944, to which reference is hereby made.

‘I further certify that suspension and deferment of the sentence in said cause was made upon the application of the petitioner represented by counsel and that the respondent was also present in court represented by counsel on the 29th day of March, 1944, as more fully appears herein, and that no objections were then and there made to the sentence of the court as then modified and rendered.’

The transcript of the proceedings before the sentencing court on March 29, 1944, shows that defendant by request appeared before the court on that day in person and by counsel, that the court stated:

‘The record may show that in the case of People v. George Cordell, et al, No. 21,096, that the respondent was requested by the court to appear here this morning to abide the order of the court relative to the sentence heretofore imposed by the court on the seventh day of January, 1942, at which time he was sentenced to serve a term of not less than two nor more than five years in the Southern Michigan prison at Jackson.

‘Subsequently, and pending an appeal to the Supreme Court, this sentence was suspended on account of the fact that it appeared to the court that respondent had been taken into the service of the United States army, and his sentence was suspended until his return.

‘He has since then returned and is not now in the United States army, and I am ready to consider at this time any reasons, if any there are, why the sentence originally imposed in this case should not become effective.’

Following a statement by defendant's attorney as to his service in the forces of the United States, his discharge and subsequent work, the court announced: ‘As a matter of fairness to Mr. Cordell, I am disposed to give him credit on the term of two years for which he was sentenced, for the time which he served in the United States army; in other words, reducing the minimum of his sentence by seven months. * * * The sentence, as amended, will be for not less than seventeen months nor more than five years from and after the 17th day of April. I am giving him until that time to arrange some matters which I understand he has to take care of.’

On the same day a record of the sentence was entered on the journal of the circuit court, as follows:

‘At a session of the circuit court for the county of Wayne in the court house in the city of Detroit, on the 29th day of March, A. D. 1944.

‘Honorable Earl C. Pugsley, circuit judge.

‘George Cordell, the respondent in this cause, having heretofore on January 7th, 1942, been sentenced to State Prison of Southern Michigan for a period of not less than two (2) years, nor more than five (5) years, and said sentence having been suspended, until the respondent, George Cordell, shall have been discharged, it is ordered by the court now here that the sentence previously imposed be amended to one of not less than seventeen (17) months, nor more than five (5) years, said sentence to begin April 17th, 1944.’

From this sentence leave to appeal was granted and execution of the sentence stayed, by this court. The only question raised on the appeal is, whether under the foregoing circumstances the court was without jurisdiction to impose sentence on March 29, 1944. More precisely, the question of law is whether the sentencing court, after suspending sentence at the request of the defendant for a period of 19 months, lost jurisdiction to impose sentence.

It is plain that the probation provisions of the Code of Criminal Procedure (Act No. 175, chap. 11, Pub.Acts 1927 [3 Comp.Laws 1929, § 17371 et seq. (Stat.Ann. § 28.1131 et seq.)]) have no application. While modern conceptions of penology recognize the desirability of suspending sentence on a convicted person for a period of probation during good behavior, this defendant was not put on probation in conformity with the probation statute.

The statute authorizing the judge of the sentencing court to pronounce judgment and pass sentence on persons convicted of crime does not provide the answer, except to the extent that it does not in express terms declare when sentence must be pronounced. 3 Comp.Laws 1929, § 17329 (Stat.Ann. § 28.1072). Several early decisions of this court, beginning with Weaver v. People, 33 Mich. 296, in 1876, have considered the question and are claimed by appellant to control decision in the instant case. At the time these early cases were decided the statute above referred to, in so far as it applies to the instant question, was substantially the same as now. Cf. 2 Comp.Laws 1871, § 7997.

In Weaver v. People, 1876, supra, the defendant pleaded guilty, the circuit judge suspended sentence until the first day of the next term of court, and the defendant gave recognizance to appear at that time. He was not called in for sentence at the next term nor sentence further suspended. A year later another circuit judge, sitting temporarily in the court where conviction was had, imposed sentence of imprisonment. On review, this court said: ‘Sentences may be suspended for various purposes. It may be for the purpose of allowing steps to be taken for a new trial, or other relief, or it may be with a view of letting the offender go without punishment. The release of a defendant on his own recognizance and without sureties, in a merely nominal amount, signifies usually the latter purpose. It at least is a plain assertion of the judge that he did not regard the offense as one that should receive a serious punishment. The failure to take steps during the October term of 1874 was a practical abandonment of the prosecution, and corroborates the opinion that such must have been understood as the object of the suspension, and as the record stands, it is fairly to be inferred it...