People v. Ingersoll

• Decision Date: 07 January 1929
• Docket Number: No. 131.,131.
• Parties: PEOPLE v. INGERSOLL.
• Court: Michigan Supreme Court

245 Mich. 530

222 N.W. 765

PEOPLE

v.INGERSOLL.

No. 131.

Supreme Court of Michigan.

Jan. 7, 1929.

Error to Circuit Court, Gratiot County; Royal A. Hawley, Judge.

Charles Ingersoll was convicted of negligent homicide, and he brings error. Affirmed.

Argued before the Entire Bench, except POTTER, J.

Mathews & Greene, of Ithaca, for appellant.

Wilber M. Brucker, Atty. Gen., and Kenneth B. Montigel, Pros. Atty., of Ithaca, for the People.

WIEST, J.

An information, filed in the Gratiot circuit, charged Charles Ingersoll and Mildred Snellenberger with the crime of negligent homicide. Mildred was tried and acquitted. When defendant Ingersoll, herein styled defendant, was brought to trial, he moved to quash the information, on the grounds that he had had no separate examination before a magistrate and the information was bad because it charged two persons with the commission of the crime, and, under the statute defining negligent homicide, only one person can commit the offense. The court denied the motion, and a severance was had. The Criminal Code Act No. 175, Public Acts 1927, c. 7, § 75, sustains the ruling upon the pleading. The other point will be taken up later.

Defendant waived a jury, and, upon trial before the court, was convicted, and prosecutes review by writ of error. At the trial defendant requested findings of fact, and findings were made, amendments thereto proposed and denied, and exceptions taken. No such practice prevails in criminal cases.

We are asked to extend the provisions of circuit court rule No. 45 to the trial of criminal cases before the court without a jury, it being contended that unless this be done a defendant so tried will be deprived of adequate method of review. The Constitution, art. 2, § 19, accords to every accused the right of trial by jury and the Criminal Code recognizes such right, but leaves it to an accused to have such trial or waive the right and be tried before the court. Section 3, c. 3, Act No. 175, Public Acts 1927, permits an accused to elect to be tried before the court without a jury, and requires the election to be in writing, signed by the defendant and filed and made a part of the record of his trial. In the writing the accused must state: ‘I fully understand that under the laws of this state I have a constitutional right to a trial by jury.’ The record shows that defendant waived the right of trial by jury in accordance with the quoted provision of the Code. It may be that waiver of trial by jury bars review as broad as upon trial by jury, but this affords no reason for supplementing the Code procedure by rules of civil procedure.

The information did not refer to the statute of negligent homicide by its title, and defendant contends that section 57, c. 7, Act No. 175, Public Acts 1927, known as the Criminal Code, makes reference mandatory. That act provides:

‘In pleading a statute or a right derived therefrom it is sufficient to refer to the statute by its title, or in any other manner which identifies the statute and the court must thereupon take judicial notice thereof.’

It was not necessary to refer to any statute in the information in order to have the court take judicial notice of the law of the state. If the information charged an offense denounced by statute the court, of course, would take judicial notice of applicable law. Whatever the purpose of the quoted section of the Criminal Code, it does not require statutes to be specially pleaded in informations, except, possibly, in a negative sense. The information charged a single crime, and evidence that Mildred had no driver's license did not render the charge bad for duplicity. It is elementary that an offense may be set forth in a single count of an information, even though it includes a lesser offense committed in the perpetration of the one charged.

Five miles south of the village of Ithaca in Gratiot county, the north and south public highway, known as trunk line U. S. 27, crosses a creek, over a planked bridge 27 feet long and 16 feet wide in the clear. There are hills north and south from the bridge. Sunday morning, July 31st, a minister, on his way to camp meeting, with members of his family and friends, in a Ford touring car, came down the hill to the north of the bridge. At the same time defendant and Mildred Snellenberger, with two friends in a Ford sedan, driven by Mildred, came down the hill to the south of the bridge. As the minister approached the bridge he slowed his car and turned to the west edge of the road. As Mildred approached the bridge she shut off the supply of gas, applied the foot brake to her car, evidently thinking she could not make the bridge ahead of the other car. Defendant was seated by her side, with his left arm over the back of the driver's seat, and stated that they could get across, reached over and applied the gas; the car shot forward; Mildred was frightened by the sluing of the car in loose gravel, lost control thereof, defendant took hold of the steering wheel, prevented the car from striking the west rail of the bridge by turning it quickly, but grazed the east rail and then went diagonally across the roadway to a point about 50 feet from the...