People v. Hernandez

• Decision Date: 27 June 1972
• Docket Number: No. 2,Docket No. 12554,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carmelo HERNANDEZ, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 447

200 N.W.2d 447

41 Mich.App. 594

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carmelo HERNANDEZ, Defendant-Appellant.

Docket No. 12554.

Court of Appeals of Michigan, Division No. 2.

June 27, 1972.

Released for Publication Sept. 26, 1972.

H. Eugene Bennett, Bell, Bennett & Vilella, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Raymond L. Scodeller, Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and LEVIN and TARGONSKI, ^* JJ.

McGREGOR, Presiding Judge.

Defendant was charged, in a two-count information, with the offenses of kidnapping, M.C.L.A. § 750.349; M.S.A. § 28.581, and rape, M.C.L.A. § 750.520; M.S.A. § 28.788. He was convicted after a jury trial of the lesser included offenses of felonious assault, M.C.L.A. § 750.82; M.S.A. § 28.277, and rape, M.C.L.A. § 750.520; M.S.A. § 28.788.

Defendant was arrested pursuant to an arrest warrant based on a complaint signed by a detective with the Michigan state police as complaining witness. ¹ At the trial, prior to the taking of testimony, defendant made a motion to dismiss the complaint and the warrant:

'MR. BENNETT (defense counsel): In the first place, Your Honor, I would move at this time to dismiss the Complaint and Warrant in this matter, as well as have the Information quashed. I would base this motion on this premise, Your Honor:

'The Complaint and Information in this matter states that one Calvin Glassford is the Complaining Witness and the Complainant. There is nothing indicated in the body of the Complaint, if the Court please, to show this is on his information and belief.

'Now, this is an unusual case in that there are two eyewitnesses in addition to the victim, so I'm not positive at this point that Calvin Glassford has no direct knowledge. However, I am assuming he does not, and if he does not, if the Court please, I submit this is a faulty Warrant. There is nothing to show that the Examining Magistrate questioned any other witnesses, as the statute requires, when the information and belief type of Warrant is issued.'

The court denied defendant's motion.

On appeal, the principal issue is whether the complaint, which is purported to be based on actual knowledge but is in reality based on information and belief, should have been dismissed, thereby divesting the court of jurisdiction to try the case.

Defendant concedes that the law of this state upholds the validity of a complaint which, while purporting to be based upon actual knowledge, is in reality based upon information and belief. Defendant contends, however, that if a complaint purports to be based upon personal knowledge and is, in fact, based on information and belief, the allowance of such complaint amounts to condoning perjury and fraud, and thereby constitutes a denial of due process to the defendant.

In People v. Mosley, 338 Mich. 559, 563--564, 61 N.W.2d 785, 788 (1953), the Court stated:

'The complaint upon its face purports to have been made upon the knowledge of Deputy Sheriff Zeiter. The following is stated therein:

"The complaint, on oath and in writing, of Frank Zeiter, taken and made before me * * * who being duly sworn, says that heretofore, to-wit, on or about the 22d day of October, A.D. 1951, at the city of Flint, and in the county aforesaid, James Mosley did feloniously and unlawfully endeavor to incite and procure,' Et cetera.

'This Court, in People v. Lynch, 29 Mich. 274 (1874); Potter v. Barry Circuit Judge, 156 Mich. 183, 120 N.W. 586 (1909); and People v. Czckay, 218 Mich. 660, 188 N.W. 376 (1922), settled the question that a complaint which, upon its face, purports to be made upon the knowledge of the affiant, is a sufficient compliance with the statute, and that it is incompetent for a defendant, upon arraignment, to impeach the complaint by showing a lack of knowledge by the complaining witness. The positive statements made upon the oath of the complainant gives the magistrate jurisdiction to issue the warrant. The fact that 'it does not appear there was no examination of witnesses under oath', or that the complainant did not adhere to the truth, cannot avoid a warrant. People v. Hare, 57 Mich. 505, 24 N.W. 843, 845 (1885), and People v. Schottey, 66 Mich. 708, 33 N.W. 810 (1887). Jurisdiction having attached for the issuance of the warrant, it could not be later impeached. Potter v. Barry Circuit Judge, Supra.'

Defendant cites Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), in support of his contention that the complaint and the arrest warrant should have been dismissed. Defendant's reliance on Whiteley, supra, is misplaced, as that case held that evidence obtained from a search and seizure which was incident to an illegal arrest should not have been admitted into evidence. The Court did not hold, in Whiteley, that an illegal arrest divested the court of jurisdiction over the defendant; in fact, the conclusion was that

'Pursuant to our authority under 28 USC § 2106 to make such disposition of the case 'as may be just under the circumstances', we reverse the judgment of the Tenth Circuit and remand with directions that the writ (of habeas corpus) is to issue unless the State makes appropriate arrangements to retry petitioner.' Whiteley, supra, p. 569, 91 S.Ct. p. 1037.

Once the court obtains jurisdiction over the defendant, proof of an invalid arrest warrant does not divest the court of jurisdiction.

'The universal rule appears to be that the manner in which a defendant is brought before a court is no bar to the court's Jurisdiction to try the case nor may it successfully be set up as a bar to conviction.' (Emphasis added.) State v. Keating, 108 N.H. 402, 236 A.2d 686 (1967). See also People v. Miller, 235 Mich. 340, 209 N.W. 81 (1926); 5 Am.Jur.2d, Arrests, § 116, p. 796.

'Both Federal and Michigan cases uphold the power of a court to try a defendant regardless of the means used to bring him within the court's jurisdiction. Ker v. Illinois (1886), 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421; Lascelles v. Georgia (1893), 148 U.S. 537, 13 S.Ct. 687, 37 L.Ed. 549; Frisbie v. Collins (1952), 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541, reh. den. (1952), 343 U.S. 937, 72 S.Ct. 768, 96 L.Ed. 1344; In Re Little (1902), 129 Mich. 454, 89 N.W. 38; People v. Mahler (1950), 329 Mich. 155, 45 N.W.2d 14, cert. den. (1951), 340 U.S. 949, 71 S.Ct. 529, 95 L.Ed. 684, cert. den. (1953), 345 U.S. 943, 73 S.Ct. 837, 97 L.Ed. 1369.' People v. Martin, 386 Mich. 407, 424, 192 N.W.2d 215 (1971).

It should be noted that the detective who swore out the warrant in the instant case could have arrested the defendant without the benefit of the arrest warrant. M.C.L.A. § 764.15; M.S.A. § 28.874 provides:

'Any peace officer may, without a warrant, arrest a person * * * (c) When a felony in fact has been committed and he has reasonable cause to believe that such person has committed it; (d) When he has reasonable cause to believe that a felony has been...