People v. Duncan

• Decision Date: 06 October 1964
• Docket Number: No. 25,25
• Citation: 373 Mich. 650,130 N.W.2d 385
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. M. Warren DUNCAN, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 385

130 N.W.2d 385

373 Mich. 650

The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. M. Warren DUNCAN, Defendant and Appellant.

No. 25.

Supreme Court of Michigan.

Oct. 6, 1964.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert Weinbaum, Asst. Atty. Gen., Lansing, for plaintiff-appellee.

Kenneth J. Logan, River Rouge, for defendant and appellant.

Before the Entire Bench, except, KAVANAGH, C. J., and ADAMS, J SOURIS, Justice (for affirmance and remand).

Defendant, while mayor of the city of River Rouge, was indicted in March of 1957 by Judge Bohn of the third judicial circuit sitting as a grand jury ¹ charging him with 1) conspiracy to bribe, 2) bribery, 3) conspiracy to extort, and 4) extortion. Trial commenced before a jury, Judge Bowles presiding, on October 22 and was concluded on November 26, 1957 with a verdict of acquittal as to the third and fourth counts of conspiracy to extort and extortion and jury disagreement as to the first and second counts of conspiracy to bribe and bribery. On January 2, 1958, defendant moved the trial court for an order of dismissal as to the first and second counts on the following alternative grounds: 1) that acquittal on the third and fourth counts constituted acquittal (autrefois acquit)on the first and second counts because the facts necessary to prove conspiracy to bribe and bribery, it was claimed, are identical with those it was claimed, are identical with those needed to prove conspiracy to extort and the first two counts attached upon discharge of the jury, without defendant's consent, after the jury reported to the court that it had been unable to reach a verdict on those counts; and 3) that the testimony of the people's chief witness on the first trial was 'in conflict with and repugnant to a charge of bribery if a retrial is had.' This motion was noticed for hearing on January 17, 1958. We are told, in the stipulation of facts, that the motion 'was adjourned from January 17 to January 24, 1958, and thereafter indefinitely', but we are not told upon whose motion such adjournments were granted or whether they were based upon stipulations, nor does the record available to us disclose what occurred.

Nothing further was done of record in this case in 1958, in 1959, nor in 1960 until December, at which time defendant supplemented his earlier motion by demand for discharge on the ground that he had been denied a prompt and speedy retrial in derogation of his State constitutional right thereto (Constitution 1908, Article II, § 19). On December 22, 1960, defendant's motion, as supplemented, was heard and subsequently denied by order filed February 17, 1961. The order of denial set March 20, 1961 as the date for commencement of defendant's retrial on the first two counts, but defendant prior thereto filed in this Court an application for leave to appeal from the order of February 17, 1961. Upon our grant of leave, this appeal was taken.

I.

This record discloses no excuse, nor does either party hereto so much as attempt to offer any, for the shockingly protracted delay in bringing on defendant's motion for decision and in retrying defendant for conspiracy to bribe and bribery. The people merely assert that they could not proceed with retrial until defendant's motion was decided, but no explanation is offered why the people made no move to bring that motion on for hearing and decision so that they could, if the motion were denied, proceed with the retrial. Indeed, there is not a word of explanation for the people's failure even to answer the motion except upon oral argument in court. Nor does the defendant, on the other hand, so much as suggest why he sat by idly from January of 1958 until December of 1960 without demanding either decision on his motion or prompt retrial.

Our Constitution of 1908, Article II, § 19, guaranteed defendant a speedy trial. Had he, at any time during the 35 months his unanswered motion gathered dust in the court's files, demanded disposition of his motion so that he could be discharged or promptly retried, he most assuredly would have been entitled to the trial court's order or ours. The cited constitutional provision ² and the six statutory provisions set forth in the margin ³ leave no room for dilution, by judges or prosecutors, of the right of every accused to prompt disposition of criminal accusations. In the face of these commands, we have no doubt that every judge in this State would respond,--and quickly at that,--to an accused's formal demand on the record for compliance with his constitutionally guaranteed right to a speedy trial.

We have had occasion before to address our attention to such demands. Hicks v. Judge of Recorder's Court of Detroit, 236 Mich. 689, 211 N.W. 35; People v. Foster, 261 Mich. 247, 246 N.W. 60, and People v. Den Uyl, 320 Mich. 477, 31 N.W.2d 699. Only in Foster was relief denied and there only because, although defendants alleged frequent but informal demands upon the prosecuting attorney and the attorney general for prompt trial or dismissal, the record was barren of any motion therefor filed with the court. Since Foster, it has not been questioned in this State that formal, record entered, demand is required to invoke the constitutional guaranty. While we have been urged on this appeal to forsake this holding of Foster and to rule, instead, that the failure of the defendant to take affirmative action to prevent delay may not, without more, be considered a waiver of his right to speedy trial, we decline so to rule. Our statutes, cited above in the margin, clearly implement and supplement the constitutional grant of right to speedy trial and provide ample means for enforcement of that right. No reason has been suggested to us, nor does any occur to us, for raising a Damoclean threat of dismissal over the heads of our people's prosecutors.

Neither Hicks v. Judge of Recorder's Court of Detroit, supra, nor People v. Den Uyl, supra, supports defendant's contentions. In both cases, the criminal defendants strenuously resisted delay at every step of the proceedings. In Hicks, Hicks was ready for trial on two occasions only to have trial adjourned upon the prosecutor's requests therefor, whereupon he applied promptly to this Court for a writ of mandamus to compel the recorder's court to proceed with trial of his criminal case. We ordered an immediate trial within 30 days. In People v. Den Uyl, preliminary examination of the defendants had been adjourned on seven occasions over 18 months because of the unavailability or recalcitrance of a prosecution witness, each delay having been granted over the defendants' strenuous objections and over their continuing demands for prompt completion of their examination. This Court, while acknowledging (320 Mich. at 491, 31 N.W.2d 699) that acquiescence in delay would present a significantly different situation, ordered resumption and completion of the preliminary examination within 60 days or dismissal of the charges against defendants. Thus, in both Hicks and Den Uyl, the defendants strenuously resisted the continuances and demanded prompt prosecution of the charges against them. Here, on the other hand, the record discloses no such resistance or demand. While waiver of a constitutional right may never lightly be inferred, this defendant's litigatory dormancy for 35 months speaks as loudly to us as would his written acquiescence to the people's inexplicable delay.

II.

Defendant's claim that the people are barred from retrying him for conspiracy to bribe and bribery because the evidence required in proof of such offenses is the same as that required to prove the charges of conspiracy to extort and extortion, on which latter charges he has been acquitted, misconceives the authorities upon which he relies. In People v. Cook, 236 Mich. 333, 210 N.W. 296, relied on by defendant this Court held that a prior conviction for unlawful possession of liquor barred a subsequent charge of unlawful transportation of the same liquor for the reason that the first offense for which defendant was convicted was a necessary element in, and constituted part of, the second offense charged and both were in fact one transaction. In People v. Gessinger, 238 Mich. 625, 214 N.W. 184, defendant was charged and tried for burglary, grand larceny and receiving stolen property, but convicted only of the last charge. Upon the trial judge's grant of new trial, defendant filed a motion to quash the first two charges, which motion was denied. This Court reversed on appeal because, the offenses charged being separate and distinct offenses, a verdict of guilt of one offense without any finding or other jury comment on the other offenses charged constituted acquittal as to the other offenses. Finally, in People v. Powers, 272 Mich. 303, 261 N.W. 543, the same principle was invoked as to a prior verdict of conviction of the offense of larceny, the jury apparently having made no finding as to the second offense charged and on which defendant was retried,--that of receiving stolen property. The Court held that had defendant raised the issue promptly before retrial following the trial judge's vacation of the first conviction, he would have been entitled to have quashed the charge of receiving stolen property, the first jury's silence on that count having constituted acquittal thereof.

Unlike People v. Cook, supra, some of the facts essential to proof of conspiracy to extort and extortion, on which charges defendant was acquitted, were not necessary elements in, and did not constitute part of, the offenses of conspiracy to bribe and bribery. See the statutory provisions set forth in the margin, ⁴ for violation of which defendant was charged. See, also, People v. Ritholz, 359 Mich. 359, 552-553, 103 N.W.2d 481.

Unlike People v. Gessinger, supra, and People v. Powers, supra, the jury did not remain silent with reference to the charges of conspiracy to bribe and...