People v. Hilles, 71

• Decision Date: 28 February 1950
• Docket Number: No. 71,71
• Citation: 41 N.W.2d 343,327 Mich. 124
• Parties: PEOPLE v. HILLES.
• Court: Michigan Supreme Court

Page 343

41 N.W.2d 343

327 Mich. 124

PEOPLE v. HILLES.

No. 71.

Supreme Court of Michigan.

Feb. 28, 1950.

Stephen J. Roth, Attorney General of Michigan, Edmund E. Shepherd, Solicitor General of Michigan, Lansing, Gerald K. O'Brien, Prosecuting Attorney for Wayne County, Michael A. Guest, Assistant Prosecuting Attorney, Detroit, for the People.

Saul C. Downes, Detroit, Harry H. Anbender, Detroit, for appellant.

Before the Entire Bench.

DETHMERS, Justice.

Defendant was charged with murder. Before arraignment on information his attorneys filed on his behalf what purported to be 'a statement in writing setting forth facts tending to show that such person (defendant) is a criminal sexual psychopathic person', as provided in C.L.1948 § 780.503, Stat.Ann.1949, Cum.Supp. § 28.967(3), supported by the affidavits of defendant's mother and attorney. The court considered the petition, as it was termed, and denied it, filing a written opinion setting forth reasons for declining to appoint two psychiatrists to examine defendant and report to the court the results of their examination and conclusions therefrom in the manner provided in the succeeding section of the statute. While the court's opinion fairly reflects the view that the petition and supporting affidavits failed to set forth facts tending to show that defendant is a criminal sexual psychopathic person, the opinion contains language stressed by defendant's attorneys as persuasive that the petition was denied solely on the ground that it and the supporting affidavits failed to show that defendant's mental disorder had existed for a period of not less than one year, a prerequisite under the statute.

Defendant's attorneys thereupon filed a second petition, similar to the first, supported by (1) a letter from a physician to defendant's attorney expressing an opinion based on his reading of affidavits by defendant's attorney, father and mother and defendant's confession, (2) affidavit of defendant's father which, at most, shows the commission of one isolated offense, (3) affidavit of defendant's mother which sets forth no facts showing a mental disorder for a period of over one year, but merely conclusions to that effect, and finally (4) defendant's onw statement, designed to remedy what defendant's attorneys conceive to be the only deficiency in their first petition, namely, failure to show the duration of defendant's mental disorder for a period of not less than one year. From denial of the second petition defendant appeals.

C.L.1948, § 780.503, Stat.Ann.1949, Cum.Supp. § 28.967(3), permits the filing of the 'statement in writing' by the prosecuting attorney, attorney general, or some one in behalf of the person charged. C.L.1948, § 780.504, Stat.Ann.1949, Cum.Supp. § 28.967(4), provides that when such statement is filed by the prosecuting attorney or attorney general the court shall, or if filed on behalf of the accused the court may, appoint the two psychiatrists to examine the accused. From the use of the word 'shall' in the first instance and 'may' in the second, it is evident, as parties agree, that the legislature intended to leave the question of whether the two psychiatrists should be appointed to the discretion of the trial judge when...