People v. Hare

• Decision Date: 25 September 1885
• Citation: 57 Mich. 505,24 N.W. 843
• Court: Michigan Supreme Court
• Parties: PEOPLE v. HARE.

24 N.W. 843

57 Mich. 505

PEOPLE v. HARE.

Supreme Court of Michigan

September 25, 1885

Moses Taggert, for the People.

Spafford Tryon, L.C. Fyfe, and George S. Clapp, for defendant.

SHERWOOD J.

The respondent, Thomas Hare, and one Daniel Billington, were jointly complained of before ALONZO PLUMMER, a justice of the peace at Benton Harbor, for the murder of John McCrone, at the township of Benton, in Berrien county, on the sixth day of October, 1883. The complaint was made on the twenty-ninth day of December, 1883, by Isabella McCrone, the wife of the deceased. Warrant was issued the same day for the arrest of the defendants, and thereunder Hare was arrested on the thirty-first of December, and Billington January 5, following, 1884. On January 7th the defendants were taken into court, and on their motion the case was continued until the sixteenth of January, at which time the case was again adjourned to the seventh of February, at Kellogg's Hall, in the city of Niles, and the record then says: "By request, WILLIAM J. GILBERT, a justice of the peace of Niles township, appeared to sit during the further hearing of said cause."

"February 7, 1884. Cause called at adjourned hour at Niles, in said county. Parties in court, with their attorneys: James A Kellogg, prosecuting attorney, and N.A. Hamilton, counsel for the people; and Law C. Fyfe and S. Tryon, attorneys for defendant Hare, and Mr. Tabor, for defendant Billington. After hearing the evidence, the court finds that said offense has been committed, and that there is probable cause to believe, and the court does believe, said defendants to be guilty of the commission thereof. The court therefore requests said defendants, without bail, to appear before the circuit court for the county of Berrien, on the first day of the next term thereof, and thence from day to day to answer to any indictment, information, or complaint that may be filed against them. ALONZO PLUMMER, Justice of the Peace."

The complaint commences, "The complaint and examination on oath and in writing of Isabella McCrone taken and made before me, ALONZO PLUMMER, justice of the peace of the township of Benton, in and for said county," etc.; continuing in the usual form. Both justices signed warrant of commitment. The information in the case was filed on the fourteenth day of April, 1884. And on the same day a motion was entered and made by counsel for defendant to quash the information filed in the case, and the same day denied by the circuit judge. The motion is as follows:

"Now comes the defendant Thomas Hare, and moves the court to quash the information filed in this cause by him, the said defendant Thomas Hare, for reasons following: That when the complainant, Isabella McCrone, swore to said complaint, she had no personal knowledge of the charge therein made, and had no knowledge of the facts therein contained, but that she made the same simply upon information derived from third persons; that there was no such examination as the statute requires, and that the justice, ALONZO PLUMMER, acquired no jurisdiction to issue said warrant, or to hold the examination for the said offense; that the said defendant Thomas Hare has never had the examinations to which, under the statute, he is entitled, before any information can be filed against him. Second, that said arrest of the said defendant Thomas Hare was without lawful right, and void, because it deprives the defendant of his liberty without due process of law, and against the law, which requires that no warrant shall issue without probable cause. Third, there has been no determination and finding by the examining magistrate ALONZO PLUMMER, and WILLIAM J. GILBERT, associate examining magistrate, as the statute requires, as to there being probable cause to believe the defendant guilty of the offense charged.

"L.C FYFE,

"SPAFFORD TYRON,

"Attorneys for Defendant Thomas Hare."

It is alleged as error that the court denied this motion, and compelled the defendant to go to trial. The respondent was permitted to withdraw his plea of not guilty for the purpose of enabling him to make this motion.

We think the complaint in this case was sufficient to give the court jurisdiction. The allegations are positive as to the offense committed, and it does not appear there was no examination of witnesses under oath before the warrant issued, and it was not necessary to reduce such examination to writing. Such examination is taken only for the purpose of aiding the court in ascertaining the probability that the offense has been committed. People v. Lynch, 29 Mich. 274.

The objection made upon the first ground comes too late, after the examination has been had and returned, where the commission of the offense is positively sworn to in the complaint. People v. Dowd, 44 Mich. 488. The record shows that an examination was had before the magistrate PLUMMER, and that Justice GILBERT sat with him a portion of the time the case was under investigation; that the justice who issued the warrant determined, before he issued it, that there was probable cause for his so doing; and we do not agree with counsel for the defendant that there has been no legal finding by the justice of probable cause to believe that the defendant committed the offense charged.

It is claimed under the third ground for the motion that Justice PLUMMER associated with him, before entering upon the examination, Justice GILBERT, for the purpose of hearing the case with him, and that upon the close of the examination GILBERT took no part in the subsequent proceedings; and counsel relies upon section 9477, How.St., to sustain him in the claim made in his motion. The section reads as follows: "Any magistrate to whom complaint is made may associate with himself one or more other magistrates of the same county, and they may together execute the powers and duties conferred upon such magistrates; but no fees shall be taxed for such associates." The only evidence that is claimed to show that PLUMMER associated GILBERT with him, or intended to, under the statute, appears in the clause above quoted, and, it will be seen, who requested Justice GILBERT to sit, or for what purpose he sat, does not appear in the statement made upon the record by Justice PLUMMER; neither do counsel for the respective parties appear to be agreed upon that subject. It is claimed by counsel for the defendant it was for the purpose of taking a part in the deliberation of the court under the statute, and two of the attorneys for the people, Mr. Kellogg and Mr. Edwards, that it was only for the purpose of assisting Justice PLUMMER in taking down the testimony given upon the examination. Justice GILBERT could act under the statute only upon the request of the magistrate, and his jurisdiction so to do should appear in some way upon the record, which we do not find. The record, therefore, rather supports the position taken by the attorneys for the people. It can, however, make little difference by whom the request was made, so long as there is no proper evidence of the purpose for which it was made. The motion was correctly denied. It does not appear objection was made to the examination, nor to the manner in which it was conducted. Technical nicety in all these preliminary proceedings should, as much as possible, be avoided and discouraged. It is not in that spirit the law was intended to be administered, either in civil or criminal proceedings. The cause of justice is seldom promoted by it, while great embarrassments in civil, and much delay in the apprehension and conviction in criminal, cases is often promoted. The defendant took a separate trial, and was convicted of manslaughter.

On the trial the prosecution, by Billington, gave evidence tending to show that on the night of the fifth of October, he and defendant Hare left the fair ground where a county fair was being held, and went to the village of Benton Harbor; that they were, during the greater part of the evening, until late, in a place known as Collins' saloon; that during the evening, and at a time when all the business houses were closed, Hare and Billington stepped outside the saloon, and while there McCrone came by, when some words were interchanged between McCrone and Hare; that McCrone continued in a northerly course along the street, and at a point where the street varies from a direct course he kept on into the middle of it, and there Hare, having followed, came up to him, and struck him from behind, when McCrone turned and grappled with Hare, and Hare struck him, when McCrone said, "My God, I am stabbed," and they together sank to the ground and there remained a short time, when Billington pulled Hare away from McCrone, and it was then discovered that McCrone was dead. Hare and Billington together then carried the body to the canal and threw it into the water, where it was found on the thirteenth of the same month; that Hare and Billington then went to Collins' saloon, and from there to the stable where their horse and vehicle, a two-wheeled cart was, and getting it went to St. Joseph, to the house of Hare's mother, (a boarding-house,) and remained during the night, had a late breakfast the morning following, prepared and served by a girl named Jennie Lawton; that during the forenoon Billington got ready the cart, and about 11 o'clock they started and drove to the home of Billington's mother, near Dowagiac, some 27 miles distant, arriving in the evening and remained during the night, and the day following (Sunday) Hare went to the place where he was working, (a Mrs. Sherman's,) some 15 miles distant. The people relied upon the truthfulness of the facts stated by Billington to secure a conviction. The defense claimed that Hare and Billington left Benton Harbor at...