People v. Harris

• Decision Date: 04 January 1895
• Citation: 103 Mich. 473,61 N.W. 871
• Court: Michigan Supreme Court
• Parties: PEOPLE v. HARRIS.

61 N.W. 871

103 Mich. 473

PEOPLE v. HARRIS.

Supreme Court of Michigan

January 4, 1895

Error to circuit court, St. Joseph county; George L. Yaple, Judge.

Dibbie Harris was convicted of rape, and brings error. Affirmed.

William Sadler, for appellant.

A. A Ellis, Atty. Gen., and D. L. Akey, Pros. Atty., for the People.

MONTGOMERY J.

Respondent was convicted of the offense of having carnal knowledge of a female child under 14 years of age.

It is assigned as error that the respondent had no proper preliminary examination, for the reason that it does not appear that the justice, before issuing the warrant, examined any witnesses who had knowledge of the facts, and that the complaint was made upon information and belief. On being brought before the justice, respondent waived examination and on being arraigned in the circuit court, and called upon to plead to the information, interposed a plea of not guilty. This was a waiver of the objection now interposed. Washburn v. People, 10 Mich. 372; Morrissey v People, 11 Mich. 343; and People v. Williams, 93 Mich. 623, 53 N.W. 779. And we think, under the circumstances of this case, it was a wise exercise of discretion to refuse to permit the respondent to withdraw his plea for the purpose of making a motion to quash, based upon the claim here made.

Error is assigned upon refusal of the court to permit the respondent to show by the complaining witness a statement that the respondent had had intercourse with her on an occasion previous to that fixed as the one upon which the offense was committed. The case is one in which the offense did not depend upon actual force. If the issue had been whether the complaining witness had consented to the intercourse, the testimony would have been clearly competent. But in a case where the consent of the prosecutrix affords no defense we are unable to see how the fact that the parties had had previous intercourse would aid the respondent, or tend to weaken the testimony of the prosecutrix, in any way.

Error is now assigned upon the charge of the court, upon the ground that the court omitted to state that the respondent might be convicted of a lesser offense than rape, as assault, or assault with intent to commit rape. We are cited, as sustaining this contention, to the cases of Hall v People, 47 Mich. 636, 11 N.W. 414, and People v Miller (Mich.) 55 N.W. 675. In the latter case the respondent was convicted of the offense of assault with intent to commit rape, and what was held was that this was within the charge of rape; and, this being so, it is clear that respondent could not complain of a conviction of a lesser offense than the full charge. But it was said, referring to the case of Hall v. People, that "that case determined that the omission to charge the jury that defendant might be found guilty of a lesser offense was held error." We have examined...