People v. Gologonoff, Docket No. 1341

• Citation: 149 N.W.2d 201,6 Mich.App. 332
• Decision Date: 28 March 1967
• Docket Number: Docket No. 1341,No. 2,2
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Pano GOLOGONOFF, alias Peter Gologonoff, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 201

149 N.W.2d 201

6 Mich.App. 332

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Pano GOLOGONOFF, alias Peter Gologonoff, Defendant-Appellant.

Docket No. 1341.

Court of Appeals of Michigan, Division No. 2.

March 28, 1967.

Michael Mason, Flint, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Robert E. Leonard, Pros. Atty., Genesee County, Flint, for appellee.

Before QUINN, P.J., and N. J. KAUFMAN ^* and McGREGOR, JJ.

QUINN, Presiding Judge.

Defendant appeals from the trial court's denial of his motion for new trial. Defendant's jury trial for murder, at which he was represented by counsel, resulted in a verdict of guilty March 16, 1938. March 17, 1938, defendant was sentenced to life imprisonment. February 24, 1948, he filed motion for leave to file a delayed motion to vacate judgment and sentence which was granted, but his motion to vacate judgment and sentence and to grant a new trial was denied May 3, 1948. Defendant's petition for free transcript of the trial was denied October 20, 1948. The court reporter for the trial died May 4, 1949, and his notes are unavailable due to loss or destruction. The trial judge died May 3, 1939. October 5, 1964, the motion here involved was filed in the trial court and it was denied January 4, 1965.

On appeal, defendant first asserts that the unavailability of the transcript is a basis for granting him a new trial, secondly that the verdict does not support a conviction of murder in the first degree, and finally that his arrest was illegal. We shall consider the issues in their inverse order.

With respect to defendant's claim that his arrest was illegal, he pleaded not guilty, stood trial, and was convicted by a jury. He cannot now be heard to complain of the alleged illegality of his arrest. People v. Lowerie (1910), 163 Mich. 514, 128 N.W. 741.

With respect to his claim that the verdict does not support a conviction of murder in the first degree, the information charged defendant as follows:

'(Defendant) feloniously, wilfully and of his malice aforethought, did kill and murder one James Aleff.'

The jury verdict was as follows:

'Guilty in manner and form as the people have in their information in this cause charged.'

P.A.1931, No. 328, § 316, in force at time of trial, defined first degree murder as,

'(A)ny other kind of wilful, deliberate and premeditated killing'.

Also in force at time of trial were P.A.1931, No. 328, § 317, which provided:

'All other kinds of murder shall be murder of the second degree'.

and P.A.1931, No. 328, § 318, which provided:

'The jury * * * shall * * * ascertain in their verdict, whether it be murder of the first or second degree'.

In People v. Dupuis (1963), 371 Mich. 395, 124 N.W.2d 242, the Supreme Court discussed and applied the foregoing statutory provisions (presently C.L.1948, §§ 750.316, 750.317 and 750.318 (Stat.Ann.1954 Rev. §§ 28.548, ...