People v. Early

• Decision Date: 28 July 1970
• Docket Number: Docket No. 6882,No. 2,2
• Citation: 181 N.W.2d 586,25 Mich.App. 363
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John EARLY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 586

181 N.W.2d 586

25 Mich.App. 363

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John EARLY, Defendant-Appellant.

Docket No. 6882.

Court of Appeals of Michigan, Division No. 2.

July 28, 1970.

Released for Publication Dec. 14, 1970.

Allen C. Ingle, Ingle & Burke, Farmington, for defendant-appellant.

Frank J. Kelley, Atty. Gen. Robert A. Derengoski, Sol. Gen., Thomas G. Plunkett, Jr., Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and McGREGOR and V. J. BRENNAN, JJ.

V. J. BRENNAN, Judge.

Defendant John Early was convicted by a jury on February 8, 1968, of assault with intent to commit great bodily harm less than the crime of murder, M.C.L.A. § 750.84 (Stat.Ann.1962 Rev. § 28.279), and was sentenced to a term of 3 to 10 years. His defense at trial was insanity. He now appeals as of right, contending (1) that the information should have been quashed because the transcript of the preliminary examination was not contemporaneously filed with it, (2) that a psychiatric examination conducted by the people upon a plea of insanity Per se violates an accused's right against self-incrimination, and (3) that the trial court erred by not giving his counsel notice of the time and place of the psychiatric examination conducted by the people. We find these contentions to be without merit, and affirm.

Access to the transcript of testimony taken at a preliminary examination is important to the proper preparation of an accused's defense at trial, and therefore the transcript should be filed in the trial court at the same time the information is filed. Dimmers v. Hillsdale Circuit Judge (1939), 289 Mich. 482, 286 N.W. 798.* Under Dimmers a motion to quash is proper if the transcript is yet unfiled. An untimely filing of the transcript cannot, however, be regarded as reversible error in the absence of a showing of prejudice. M.C.L.A. § 769.26 (Stat.Ann.1954 Rev. § 28.1096). The transcript in the instant case was filed on January 4, 1968, more than a month before the trial commenced, and was in fact used to prepare pretrial motions. A motion to quash was not made until January 29, 1968, nearly a month after the transcript was filed and therefore at a time when a continuance, as opposed to quashing the information, would have been the proper remedy upon a showing of prejudice. Defendant did not, however, allege prejudice in his motion. In the absence of any prejudice, we find no error in the court's denial of his motion.

Defendant's second contention, which is made without any citation to case authority, is aptly answered by the Supreme Court of New Jersey in State v. Whitlow (1965), 45 N.J. 3, 210 A.2d 763:

'It would be most anomalous to say that a defendant may advance the defense of insanity, have himself examined by his own experts and then invoke the constitutional guarantees against self-incrimination for the purpose of preventing examination by the State. State v. Myers (1951), 220 S.C. 309, 67 S.E.2d 506, 32 A.L.R.2d 430. It would be a strange doctrine, indeed, to permit a person charged with crime to put in issue his want of mental capacity to commit it, and in order to make his plea invulnerable, prevent all inquiry into his mental state or condition. State v. Cerar (1922), 60 Utah 208, 207 P. 597, 602. To allow the accused to obtain his own expert, and after a private and unlimited conference with him and examination by him, to plead insanity, and then put forward the privilege against self-incrimination to frustrate like activities by the prosecution is to balance the competing interests unfairly and disproportionately against the public.' (210 A.2d at 767)

The testimony of the people's psychiatrist in the instant case was limited to the issue of the defendant's sanity and did not extend to the issue of his guilt in fact. This limitation was clearly defined on the record by both the prosecutor and the trial court:

'Mr. Schmidt: Your Honor, I think this just goes to the facts and information the psychiatrist needed to form an opinion on the question of sanity or, lack thereof. I don't believe the testimony would be used or admissible as direct testimony as to what took place. There are statements of the defendant we certainly have no intention to use anything in that regard. ...