People v. Goulette

• Decision Date: 02 July 1890
• Court: Michigan Supreme Court
• Parties: PEOPLE v. GOULETTE.

45 N.W. 1124

82 Mich. 36

PEOPLE v. GOULETTE.

Supreme Court of Michigan

July 2, 1890

Error to circuit court, Bay county; GEORGE P. COBB, Judge.

Dwight D. Root, for appellant.

Curtis E. Pierce, Pros. Atty., for the People.

GRANT, J.

The respondent was convicted of the crime of assault with intent to commit rape. The complaint before the justice of the peace charged that the respondent committed the crime of rape upon one Victorine Martin, a female child under the age of 14 years, to-wit, of the age of 13 years, and also that he made an assault upon her with the intent, then and there feloniously, unlawfully, and carnally to know her. He was arrested, examined, and bound over to the circuit court for trial; the justice making the usual return that he found probable cause to believe the respondent guilty of the commission of the crime charged. The information filed in the circuit court contained three counts,-the first one charging rape; the second, assault with intent to commit rape; the third charging him with having taken indecent and improper liberties with the person of said Victorine Martin without committing, or intending to commit, the crime of rape.

1. The first count omitted the words "under fourteen years of age," but did charge that she was of the age of 13 years. Upon the trial the court permitted an amendment of this count by inserting the words "under fourteen years of age." The court correctly permitted the amendment, if any was needed. But, even if its allowance were error, it is of no consequence, as the court charged the jury that there could be no conviction under this count.

2. It is claimed in behalf of respondent that the justice did not specify in his return which one of the offenses charged he found reason to believe the respondent guilty of. It is a sufficient reply to this claim that the justice was not requested to do so. The decision in Yaner v. People, 34 Mich. 286, was based upon the express request made to the justice, and his refusal to so find. That decision cannot apply where a lesser crime is included in the greater one charged, and no request is made upon the justice at the examination.

3. It is also claimed that it was error to add the third count to the information. The laws of 1887, Act 153, expressly provides that such a count may be added to an information charging rape. It was the evident intention of the legislature to make provisions for a trial under section 1 of that act where the proof came short of showing rape, or an assault with intent to commit rape. The objection is that the respondent was not examined before the justice for this offense, and therefore could not be tried for it in the circuit. This objection was made after the jury had been impaneled,...