People v. Fleming
| Decision Date | 02 June 1924 |
| Docket Number | No. 118.,118. |
| Citation | 227 Mich. 436,198 N.W. 911 |
| Parties | PEOPLE v. FLEMING. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Oceana County; John Vanderwerp, Judge.
Ella Fleming was convicted of larceny, and to review an order denying her motion to vacate judgment, rendered on remittitur of Supreme Court, she brings error. Affirmed.
Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.F. E. Wetmore, of Hort, and A. S. Hinds, of Shelby, for appellant.
Earl C. Pugsley, Pros. Atty., of Hart, for the People.
Defendant was convicted of larceny in the Oceana circuit court, and the proceedings were presented to this court on exceptions before sentence. This court was unable to agree on certain questions of law involved, and two opinions were filed, one for affirmance and the other for reversal. 194 N. W. 714. The court was evenly divided, each opinion being signed by four justices. These opinions being filed, the following order was entered:
‘This cause having been brought to this court upon exceptions from the circuit court for the county of Oceana, and the same, and the matters and proceedings therein, having been seen and inspected and duly considered by the court, thereupon it is ordered that it be certified to said circuit court for the county of Oceana that this court finds no error in the rulings and proceedings therein by reason of an equally divided court on the exceptions assigned.’
When the remittitur containing this order was filed in the trial court, it proceeded to sentence defendant. The court imposed a sentence of probation for a period of two years, with certain conditions annexed, to be complied with, and providing she should pay costs in the sum of $150, and probationary fees of $12,50. Defendant acquiesced in this sentence and paid the costs. Subsequently she raised the question in the trial court that the sentence was null and void; that the trial court was without jurisdiction to sentence her because the order of the Supreme Court contained no directions to do so.
This contention of counsel is based wholly on what was said by the court in People v. Braman, 30 Mich. 472. That was a criminal case before the court on exceptions before sentence. The court was equally divided. Later it was called to the attention of this court that the prosecuting attorney had moved in the trial court for judgment on the verdict, and a ruling was requested as to the practice in criminal cases, where the Supreme Court was equally divided on exceptions before sentence. In response to that request this court said:
‘The court held that where, in criminal cases, exceptions are certified to the Supreme Court before judgment, no further proceedings can be taken in the court below until the former court shall certify its instructions how to proceed; that in this case, the Supreme Court being divided upon the question whether the act committed constituted any criminal offense, it would be unseemly to proceed further against the defendant; and that practically such a result should put an end to the prosecution, though no order to that effect had been entered.’
In the case referred to defendant was charged with extortion by means of threats to accuse another of crime. Two of the justices were of the opinion that defendant's written communication brought him within ...
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