People v. Dochstader
| Decision Date | 06 January 1936 |
| Docket Number | No. 131.,131. |
| Citation | 274 Mich. 238,264 N.W. 356 |
| Parties | PEOPLE v. DOCHSTADER. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
May Dochstader was convicted of manslaughter by abortion, and she appeals.
Reversed, and new trial granted.
Appeal from Circuit Court, Jackson County; Benjamin Williams, judge.
Argued before the Entire Bench.
Frank L. Blackman and Leo J. Conway, both of Jackson, for appellant.
Owen Dudley, Pros. Atty., and Philip Kelly, Asst. Pros. Atty., both of Jackson, for the People.
April 26, 1934, Howard Ellis made a complaint in writing before a justice of the peace in Jackson county against defendant, charging defendant did kill one Bernadine Ellis, and also charging defendant did willfully administer to Bernadine Ellis medicine, drugs, substance, or thing whatever, and did employ an instrument or other means, with intent to procure a miscarriage of such woman, contrary to the provisions of section 14, Act No. 328, Pub.Acts 1931. On the same day a warrant following in language this written complaint was issued and defendant arrested thereon. An examination was had, and the examining magistrate made a return to the circuit court of Jackson county certifying it was made to appear to him said offense had been committed as charged in the complaint and warrant and there was probable cause to believe defendant guilty thereof. Thereupon defendant was bound over to the circuit court of Jackson county to answer to such information as might be filed against her for said offense.
The testimony on the examination does not appear in the record. Defendant was arraigned at the May, 1934, term of the circuit court on an information which followed the complaint and warrant as to the first charge, but which also charged defendant with willfully administering to a pregnant woman, to wit, one Bernadine Ellis, medicine, drugs, substance, or thing whatever, and employing an instrument or other means, with intent thereby to produce a miscarriage of such woman, the same not being then and there necessary to preserve the life of such woman, the death of such pregnant woman, to wit, Bernadine Ellis, being thereby produced, and so, in manner and form aforesaid, the said May Dochstader did then and there kill and Bernadine Ellis.
On arraignment, defendant stood mute and the statutory plea of not guilty was ordered entered. Defendant moved to quash the information filed against her, on the ground that if the incompetent testimony taken at the examination was excluded, there was no proof that the crime of abortion, as defined by section 14, chapter 3, Act No. 328, Pub. Acts 1931, was committed; there was no proof of the corpus delicti; if incompetent testimony taken at the examination was excluded, there was no proof to justify the examining magistrate in finding probable cause to believe the defendant committed the crime attempted to be charged; the return of the magistrate did not show that he found any crime known to the laws of Michigan had been committed by any one; the return of the examining magistrate was not sufficient to confer jurisdiction on the circuit court to receive the information filed; defendant did not have an examination on a complaint and warrant charging the crime of abortion or any other offense; the complaint and warrant did not charge any offense; because of the failure of the complaint and warrant to charge any offense, the circuit court had no jurisdiction.
This motion was denied by the trial court, the case remanded to the examining magistrate, and the complaint, warrant, and return of the magistrate changed so as to charge the offense substantially in the language of the information on which defendant had been arraigned. The basis fo this action on the part of the trial judge seems to have been that, on the examination, the prosecuting attorney asked to have the complaint and warrant amended. The prosecuting attorney stated that: ‘For the sake of saving time, I will not, unless Mr. Conway objects, wait to have the complaint and warrant amended, as stated to you, so we may proceed as though these amendments were made.’ Mr. Conway: ‘For the purpose of saving time, yes.’ The complaint and warrant were not amended, and the return of the examining magistrate to the circuit court, after examination, followed the complaint and warrant as they were originally made. After the complaint, warrant, and return had been amended by the examining magistrate, no new information was filed against defendant and defendant was not rearraigned upon the information already filed against her.
Defendant then made another motion to quash the information, alleging the complaint and warrant were improperly amended, in that the following was typed into the complaint and warrant: ‘and did by means and methods hereinabove described then and there produce the death of one, Bernadine Ellis,’ which amendment was made without the consent of Howard Ellis, the signer of the complaint, and without having the complaint reverified by the person making it; the complaint and warrant were improperly amended so that a different and greater offense was charged than contained in the complaint signed by Howard Ellis upon which the warrant was issued, the complaint before amendment charging the crime of abortion, and, as amended, charging the crime of manslaughter; the first count of the complaint, warrant, and information did not properly charge the crime of...
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