People v. Hernandez, 3627

• Decision Date: 23 December 1968
• Docket Number: No. 3627,No. 3,3627,3
• Citation: 15 Mich.App. 141,170 N.W.2d 851
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank HERNANDEZ, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 851

170 N.W.2d 851

15 Mich.App. 141

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

No. 3627.

Court of Appeals of Michigan, Division No. 3.

Dec. 23, 1968.

Released for Publication April 9, 1969. Republished as Revised.

Walter Martin, Martin & Martin, Saginaw, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, R. B. Currie, Pros. Atty., Saginaw County, Saginaw, for appellee.

Before McGREGOR, P.J., and HOLBROOK, and KAUFMAN, ^* JJ.

KAUFMAN, Judge.

This is an appeal by Frank Hernandez from his conviction of having sold a narcotic drug, not being a licensee. ¹

The facts adduced at the trial in circuit court indicated that the complainant in this case was an undercover federal narcotics agent posing as one Steve Lorenz, a narcotic user. This agent arranged by telephone from Detroit to meet one Alma Silva, a known narcotics peddler, at her apartment in Saginaw. The two of them, after Alma Silva made arrangements by telephone, set out to meet the defendant at the Avenue bar in the city of Saginaw. After entering the bar where other customers were present they sat at a table and ordered beer. Alma Silva left the agent to talk to defendant who was also in the bar. After some conversation with Frank Hernandez, she returned to the agent, obtained approximately $250.00 in marked bills, and thereupon went to a table where the defendant was seated and gave the defendant the marked money in exchange for a crumpled cigarette package in which a small packet of heroin was later found. These events transpired at approximately 3:15 p.m. on September 21, 1964. Nothing of any significance occurred until October 30, 1964, some 39 days later, when a warrant was issued charging defendant with the said illegal sale on September 21, 1964. On November 2, 1964, at 5:00 a.m., some 42 days after the alleged affair, defendant's home was broken into, searched, and defendant was arrested at gunpoint, although no effort to resist was made. The defendant, who neither reads nor writes the English language, has denied all knowledge of this transaction.

Also on November 2, Alma Silva was arrested and charged with the same violation. She was called as a witness at defendant's preliminary examination where she refused to testify, invoking her rights under the Fifth Amendment to the United States Constitution. She did, however, testify at defendant's trial to the general factual situation as aforementioned.

The information alleged that the defendant sold the heroin to the agent. It does not set forth the facts of the sale to Alma Silva either as the purchaser or as acting for the purchaser. The case of People v. Brown (1941), 299 Mich. 1, 299 N.W. 784, holds that due process of law requires the charge must fairly apprise the defendant of the particular transaction complained of and to fix the scope of the prosecution. The two criteria for sufficiency of the charge in Brown are: specification to permit preparation for trial, and sufficient specification to prevent double jeopardy. The complaint and information charge a sale to the agent. The facts do not indicate in any respect that this defendant ever was cognizant of the agent. It therefore cannot be said that the charge satisfied the aforementioned criteria. This issue is not of prime importance in this case, although it would require at least a remand for a new complaint and information.

Defendant claims that he has been denied due process by the failure of the magistrate to afford him an examination into the whole matter. The relevant portion of the statute ² provides that:

'If it shall appear to the magistrate upon examination of the whole matter, that an offense * * *.'

In the light of this provision defendant contends that the testimony of Alma Silva was necessary at the preliminary examination so that the magistrate could view 'the whole matter.' Historically, the purpose of a preliminary examination was to determine probable cause only, and just enough evidence as would prove probable cause was required. This Court, in People v. Likely (1966), 2 Mich.App. 458, 460, 140 N.W.2d 529, 530, said that:

'All of the testimony or evidence need not be supplied at the preliminary examination * * *.'

It would therefore appear that the transaction in its entirety need not be gone into at the preliminary examination.

The important issue presented to this Court, and one which must determine this appeal, may be stated as follows: Was the defendant, under the facts present in this case, denied due process by the 42-day delay between the act complained of and the issuance of a warrant and arrest?

It appears from the evidence that the complainant made a careful and skillful preparation of the people's case. He took care that he be present when the sale was consummated, marked money was used, adequate chemical tests were made to establish the presence of heroin and the defendant was under surveillance both before and after the episode which led up to the complaint.

After all of this, the defendant was arrested some 42 days after the event complained of. No narcotics or marked money were found on the defendant. At this point he is required to defend the charge. Frank Hernandez and all defendants are entitled to any available defense and logic dictates that timely notice of the charge may be, under some circumstances, ...