People v. Jones

• Decision Date: 04 January 1872
• Court: Michigan Supreme Court
• Parties: The People v. John W. Jones

24 Mich. 215

The People v. John W. Jones

Supreme Court of Michigan

January 4, 1872

Heard October 20, 1871; October 21, 1871.

Exceptions certified from Lapeer circuit.

The thirteenth, fourteenth and twentieth requests to charge referred to in the opinion, were as follows, viz.:

13. That although the jury come to the conclusion that the two keys described by the witnesses were the keys belonging to said store, and by which the lock on the front door of said store was locked and unlocked, still the jury ought not to infer that there are no other keys that will lock or unlock said store, or work the lock on said front door.

14. That although the jury come to the conclusion that the front and back doors of said store were fastened, and also the door leading up stairs, they ought not to infer that there are no other doors or places of ingress and egress to said store.

20. That if the jury find that the respondent had taken a policy from said company, which policy was not to take effect until a subsequent day, and the time had not arrived when said policy was to take effect, the defendant should be acquitted.

Dwight May, Attorney-General, for the people.

Gasill & Geer and G. V. N. Lothrop, for the defendant.

Christiancy Ch. J. Cooley, J., Campbell, J. concurred. Graves, J., did not sit in this case.

OPINION

Christiancy, Ch. J.:

The defendant was examined before the justice upon a complaint charging him with setting on fire, with the intent to burn, a store of one Robert King, in the city of Lapeer. This was an offense defined, and its punishment provided for, by §§ 5749, 5750 Compiled Laws.

The information filed by the prosecuting attorney charged the defendant with having unlawfully and will fully attempted to set fire to, and burn, a quantity of goods, wares and merchandise, clothing, hats and caps, and such other goods as are usually kept in a clothing store, of the value of two hundred dollars, of the goods and chattels of him, the said Jones, then and there being situate in a certain store occupied by him, which said store belonged to, and was the property of, one Robert King; and that, in said attempt, he, the defendant, did then and there set fire to certain combustible materials in said store; said goods, wares and merchandise, at the time of making the attempt aforesaid, being insured against loss or damage by fire, by the Putnam Fire Insurance Company of Hartford, Connecticut, with intent there and then and thereby to injure the said Putnam Fire Insurance Company; that he failed in the perpetration of the offense etc., contrary to the statute, etc.

This is a distinct offense from that charged in the complaint, and upon which defendant was examined, and not included in it. It is provided for by § 5753 Comp. Laws (which provides for the actual burning), and § 5947 (which provides for the attempt).

The defendant having pleaded not guilty to the information, went to trial; and the people, having introduced their evidence in chief and rested, the defendant, by his counsel, moved that the information and the proceedings be quashed, and that defendant be discharged, for the reason that there has been no complaint against the defendant for the crime alleged in the information, and defendant has never been examined upon the charge contained in it.

Had this motion been made before pleading not guilty to the information, it must have prevailed. But as the statute expressly authorizes a defendant to waive an examination, we think it clear, as held by the majority of the court in Washburn v. The People, 10 Mich. 372, that he may waive it as well when called upon to plead to the information, as when brought before the magistrate for examination; and we think the plea of not guilty must be treated as such waiver.

An objection, in the nature of a challenge to the array, is taken to the mode in which the jury was obtained.

At a general term of the court on the 31st of March, 1871, a previous trial of the defendant seems to have been concluded by a disagreement of the jury; and at the same general term "continued and held on the 11th day of April," the following order was entered: "It satisfactorily appearing to this court that a sufficient number of petit jurors have not appeared at the present term of this court, and it appearing to the court that the appearance of such jurors is necessary, the sheriff of this county of Lapeer is therefore ordered and directed forthwith to summon eighteen good and lawful men of this county, to be and appear in said court, at the court-house in the city of Lapeer, in said county, on the fourth day of May next, at ten o'clock in the forenoon of said day."

The court seems then to have been adjourned, as is to be inferred from the record, to said fourth day of May. The sheriff on the fourth day of May made a return that he had "summoned the following named persons" (naming eighteen). This return was made upon an order which seems to have been either drawn up by the sheriff or by the clerk and given to him, and probably intended to be a copy of the order above recited, but reciting as the ground of the order: "no petit jury having been drawn for the present term," etc.; and the return purports that the jurors had been summoned "in obedience to the order," as given by the sheriff. Upon a motion being made for a new trial, on the 23d of May, this return was amended by stating the mode of service, which was by giving verbal notice to each, and stating to them the substance of the order of the court.

We think the mis-recital of the ground of the order in the copy upon which the return was made, is of no consequence whatever; as it had no possible bearing upon the duty, either of the sheriff or the jurors summoned, and no influence upon the selection of the names. The case must stand, therefore, the same as if the return had been made upon a correct copy. It was the order actually made by the court which gave him all the authority he had to summon the jurors, and this only which imposed upon him the duty to summon them, and upon them the duty to attend. But defendant's counsel insists: First, that the court had no authority under the statute to make such an order for the appearance of the jurors upon a future day (the fourth of May), but only for their appearance forthwith; and second, that if the court had such authority, the sheriff did not return the manner in which any of the jurors were summoned or notified, and that it was too late to make the amendment after a motion for a new trial, based in part upon this defect.

The statute (Comp. L., § 4374) provides that "whenever, for any cause, grand or petit jurors shall not have been drawn and summoned to attend any circuit court, or a sufficient number of qualified jurors shall fail to appear, such court may, in its discretion, order a sufficient number of grand or petit jurors, or both, to be forthwith drawn and summoned to attend such court; or such court may, by an order to be entered in the minutes of such court, direct the sheriff of the county forthwith to summon so many good and lawful men of his county to serve as such jurors, as the case may require."

By section 4375, the sheriff is required, as soon as practicable, to summon such jurors forthwith to attend such court, "and shall in like manner return the names of those summoned by him to the court, specifying in such return the manner in which each person was notified." Section 4376 provides for talesmen. Section 4377 provides that every person so served "shall attend forthwith, and serve as a juror, unless excused by the court;" and for any neglect or refusal so to attend, shall be subject to fine, in the same manner as jurors regularly drawn.

These provisions do not contemplate a jury merely for a particular cause, but for the term, or any remaining portion of a term and, of course, for any number of causes for which a jury may be needed. And the order in the present case is, in this respect, in accordance with the statute, and not for this or any other particular case. The statute leaves it entirely optional with the court whether to order the names of the jurors to be drawn from the jury box, or whether the sheriff shall be ordered to select them; and the provisions in regard to summoning them, and their duty to attend, are the same in both cases; if in one case they are to be summoned forthwith and to appear forthwith, so they are equally in the other. The opportunities, therefore, for tampering with the jurors, so strongly urged against this order, because the jurors might be selected and summoned before the day at which they were to appear under this order--are no greater than they would have been had their names been drawn from the box, and no greater in either case than when a jury is regularly drawn prior to the term in the usual way, who are drawn and may be summoned fourteen days before the first day of the term, and must be summoned at least six days before. (See Comp. Laws, §§ 4358 to 4365 inclusive). Now, as to the power to make the order to summon the jury for the fourth of May, to which the court seems to have adjourned, it is not denied that the court had a right to adjourn over to that day, and this power cannot be doubted. Had the court, before so adjourning, made the order for summoning the jury to appear forthwith, and they had so appeared, the court might still have adjourned over to the fourth of May, and required them to appear at that time, and still the order would have come literally within the statute, and would have been a full compliance with it. In what substantial respect is the case altered, when the court, having determined to adjourn over to the fourth of May, the order is made to summon them to appear on that day? The only...