People v. Dobine

• Citation: 371 Mich. 593,124 N.W.2d 795
• Decision Date: 02 December 1963
• Docket Number: No. 101,101
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Willie J. DOBINE, Defendant and Appellant.
• Court: Supreme Court of Michigan

Page 795

124 N.W.2d 795

371 Mich. 593

The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Willie J. DOBINE, Defendant and Appellant.

No. 101.

Supreme Court of Michigan.

Dec. 2, 1963.

Samuel H. Olsen, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Dominick R. Carnovale, Asst. Pros. Atty., Detroit, for the People.

Goodman, Crockett, Eden, Robb & Philo, Detroit, for defendant and appellant.

Before the Entire Bench.

CARR, Chief Justice.

Defendant was tried before a jury in the recorder's court of the city of Detroit on charges of the unlawful possession of narcotics and the unlawful sale thereof. The date of the offenses was alleged as March 20, 1961. The jury returned verdicts of guilty on both charges and sentences were imposed. Defendant's motion for a new trial was denied and, on leave granted, he has appealed to this Court.

On behalf of appellant it is argued that he was without the assistance of counsel at the preliminary examination on the charges against him, and that error was committed in this respect amounting to a denial of due process. The transcript of the proceedings had on the examination indicates that an attorney undertook to represent defendant, prior counsel having withdrawn from the case, but apparently without proper authorization to do so. Defendant requested that he be allowed to defend himself. It appears that he did so, cross-examining the witnesses for the people and indicating some degree of familiarity with court procedure. It does not appear that on the examination he requested the appointment of an attorney, although at the direction of the judge conducting the proceeding the counsel who had appeared was directed to take his place beside defendant, presumably for the purpose of rendering any assistance that the latter might request or require. The examination resulted in defendant being bound over on both of the charges against him.

On his arraignment in recorder's court, following the examination, defendant pleaded not guilty. By so doing he waived any defect, if such there was, with reference to the preliminary examination. Citing several prior decisions, it was said in People v. Tate, 315 Mich. 76, 79, 23 N.W.2d 211, 213:

'The law has long been settled in this State that after proper arraignment in the Circuit Court and a plea of guilty or a plea of not guilty by defendant the prior proceedings had before an examining magistrate cannot be questioned; nor can defendant complain even though there has been no examination.'

The above statement was quoted with approval and followed in People v. Paugh, 324 Mich. 108, 112, 36 N.W.2d 230. It was also quoted in the more recent decision of this Court in People v. Barmore, 368 Mich. 26, 31, 117 N.W.2d 186.

In the case at bar appellant's attempt to raise the question based on the alleged failure of the judge conducting the preliminary examination to appoint counsel satisfactory to defendant comes too late. It does not appear that he was prejudiced because his request to defend himself was granted, especially in view of the fact that an attorney was seated at his side pursuant to the direction of the judge. If he needed assistance he might have obtained it. We think the claim of error in this regard is without substantial merit but, in any event, under the rule recognized in the decisions above cited he waived the right to raise the question by pleading to the merits of the information.

It is further claimed in appellant's behalf that error resulted from the failure of the court to strike out certain testimony adduced on cross-examination of the people's principal witness by the attorney for appellant. The witness in question was a woman who had been arrested previously on a charge of violating the narcotics law, and who apparently gave information to police officers with reference to defendant's activities. An arrangement was made whereby she undertook to go to the apartment occupied by defendant and there make a purchase of narcotics from him. The testimony in the record before us discloses that she was searched by a matron of the police department before starting on the mission in question, and that she was given money by police officers with which to make the contemplated purchase. Police officers watched her enter the apartment building where defendant lived, and waited until she came out later with capsules in her possession containing heroin which she claimed to have purchased from defendant.

As a witness on the trial the woman stated that she found defendant in his apartment, that she asked for the narcotic, that he said in substance that he did not have it but would procure it for her, that he left the apartment, and that, after a lapse of time, he returned with a powder which he proceeded to place in the capsules that she delivered to the police. That said capsules contained heroin was established on the trial by the testimony of a chemist. On the preliminary examination the witness had indicated in substance that defendant, when she had requested...