People v. Jones

• Decision Date: 02 May 1977
• Docket Number: Docket No. 24876
• Citation: 254 N.W.2d 863,75 Mich.App. 261
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Emmett JONES, Defendant-Appellant. 75 Mich.App. 261, 254 N.W.2d 863
• Court: Court of Appeal of Michigan — District of US

Page 863

254 N.W.2d 863

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Emmett JONES, Defendant-Appellant.

Docket No. 24876.

75 Mich.App. 261, 254 N.W.2d 863

Court of Appeals of Michigan.

May 2, 1977.

Released for Publication June 28, 1977.

[75 MICHAPP 263] James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., E. Brady Denton, Jr., Prosecutor, Saginaw, for plaintiff-appellee.

[75 MICHAPP 264] Before DANHOF, C. J., and BASHARA and MAHER, JJ.

DANHOF, Chief Judge.

Defendant was convicted by a jury of gross indecency, M.C.L.A. § 750.338b; M.S.A. § 28.570(2), assault with a dangerous weapon, M.C.L.A. § 750.82; M.S.A. § 28.277, assault with intent to commit gross indecency, M.C.L.A. § 750.85; M.S.A. § 28.280, and extortion, M.C.L.A. § 750.213; M.S.A. § 28.410, and sentenced to concurrent terms for each offense of three to five years, two and one-half to four years, six to ten years, and ten to twenty years, respectively. Defendant now appeals by right.

Defendant was originally charged with the crimes of rape, M.C.L.A. § 750.520; M.S.A. § 28.788, gross indecency between a male and female, M.C.L.A. § 750.338b; M.S.A. § 28.570(2), and assault with intent to do great bodily harm less than murder, M.C.L.A. § 750.84; M.S.A. § 28.279. At the close of the preliminary examination held on August 19, 1974, the prosecutor moved to add three more charges, based on the complainant's testimony, including another act of gross indecency between a male and female, assault with intent to commit gross indecency, M.C.L.A. § 750.85; M.S.A. § 28.280, and extortion, M.C.L.A. § 750.213; M.S.A. § 28.410. Defense counsel objected to the addition of these three counts, and the district judge deferred ruling on the prosecutor's motion, requesting briefs from both parties, and binding defendant over on the three charges originally set out in the complaint and warrant on which the preliminary examination was conducted. On October 21, 1974, the district judge granted the motion to add the additional counts to the complaint and warrant in an order authorizing the prosecutor to enter the charges on the information.

Complainant testified that defendant threatened [75 MICHAPP 265] her and forced her into a bedroom in the house of one Howard Johnson, where he aimed a shotgun at her head and threatened to kill her. After repeatedly slapping complainant, defendant forced her to remove her clothes and beat her with a leather belt. Defendant then produced some lighter fluid, which he poured on complainant's pubic area and threatened to ignite with lighted matches. After eating his Thanksgiving dinner in the bedroom, defendant forced complainant to fellate him, performed cunnilingus upon her, and, according to complainant's testimony, forced her to have intercourse.

Afterwards, defendant ordered complainant to dress and get some money for him. Complainant telephoned a female friend, and, under the guise of asking her to bring money, tried to communicate her need for help. Defendant listened, and when he realized complainant was calling for help he beat her severely with his fists, kicked her repeatedly, and finally placed the muzzle of the shotgun against her vagina and threatened to "blow her away". Defendant finally released complainant, apparently at Howard Johnson's instance, but before he did so he threatened to harm members of complainant's family if she revealed what had happened.

Howard Johnson, Sherry Pennington, and Lynette Isom took complainant to the home of her brother-in-law in Johnson's gold Cadillac Brougham. Complainant's brother-in-law notified the police of what had happened, but, fearing for her family's safety, complainant refused to speak to them until some days later, after she was admitted to the hospital.

Sherry Pennington denied having seen any of the events testified to by complainant, nor could [75 MICHAPP 266] she recall having observed any bruises on complainant's body. Lynette Isom at first denied having seen anything and testified that she found complainant walking on the street in a bruised condition and offered her a ride, but after the prosecutor confronted Ms. Isom with her testimony at the preliminary examination she corroborated much of complainant's testimony.

The facts are further stated within as they relate to each of the several issues raised.

Defendant first claims that it was reversible error to permit the prosecutor, over defense objection, to amend the information to include counts not contained in the original complaint and warrant on which the preliminary examination was conducted. Because the trial judge dismissed the added count of gross indecency, defendant now complains only of the addition of the count charging extortion.

Both parties have briefed this question on the assumption that the district judge permitted an amendment of the information, and have cited and argued to this Court cases setting out the law relating to the amendment of informations. These cases are inapplicable to the present situation because an examination of the record reveals that the prosecutor filed only one information, which contained the six counts set out above. The question presented is whether the district judge erred in ordering defendant bound over on the added charge of extortion, based on the testimony at the preliminary examination, when the preliminary examination was conducted only on the basis of the three counts set out in the original complaint and warrant.

Although extortion most commonly involves the extraction of money from the victim by the use of threats, the statute also provides that

[75 MICHAPP 267] "Any person who * * * shall orally or by any written or printed communication maliciously threaten any injury to the person or property or mother, father, husband, wife or child of another * * * with intent to compel the person so threatened to do or refrain from doing any act against his will, shall be guilty of a felony * * *." M.C.L.A. § 750.213; M.S.A. § 28.410.

Complainant testified at the preliminary examination that defendant made such a threat to prevent her from reporting what he had done to her.

A person charged with an offense not cognizable by a justice of the peace is entitled to an examination on the charge, and may not be tried for an offense different from the one for which he was examined or waived examination. People v. Jones, 24 Mich. 215, 218 (1872); People v. Hutchinson, 35 Mich.App. 128, 131, 192 N.W.2d 395 (1971). However, "(t)he information is not predicated upon the complaint or the examination upon which the warrant issues, but it is presumed to have been framed with reference to the facts disclosed at the examination which succeeds the arrest". People v. Norman, 9 Mich.App. 647, 652, 158 N.W.2d 38, 41 (1968), quoting People v. Kahler, 93 Mich. 625, 627, 53 N.W. 826 (1892). ¹

"While an accused cannot be informed against until a judicial determination upon the preliminary examination that a crime has been committed and that there is probable cause to believe him guilty, and while he may not be tried for an offense different from the one for which he was examined or waived examination, it has been said that where he fails before pleading to object to an information charging an offense distinct from that for which he was examined upon the complaint, he will be deemed to have waived the defect. People v. Jones [75 MICHAPP 268] (1872), 24 Mich. 215, 218." People v. Norman, supra, 9 Mich.App. at 652, 158 N.W.2d at 41.

Defendant's attorney objected to the addition of the extortion count at the preliminary examination on the ground that there was no testimony to substantiate the charge, but failed to submit a brief in support of this position as requested by the district judge. Defendant thereafter stood mute to the charges set out in the information, a plea of not guilty was entered for him by the court, and defendant proceeded to trial over six months later without ever challenging the propriety of the extortion charge contained in the information. Defendant did not request further examination on the extortion charge. Accordingly, we regard defendant as having waived any error in the proceedings by his failure to move to quash the information or seek further examination on the extortion charge. People v. Jones, supra, 24 Mich. at 218-219; People v. Curry, 48 Mich.App. 545, 548-549, 210 N.W.2d 791 (1973); People v. Hutchinson, supra, 35 Mich.App. at 133, 192 N.W.2d 395; People v. Norman, supra, 9 Mich.App. at 653, 158 N.W.2d 38. See also Holmes & George, Introduction to Michigan Civil and Criminal Procedure (I.C.L.E., 1974), p. 328.

Defendant next claims that the denial of his motion to compel the prosecutor to furnish a bill of particulars constituted reversible error because defendant was entitled to a bill of particulars as a matter of right under M.C.L.A. § 767.44; M.S.A. § 28.984. ² Defendant's contention that the proviso contained in that statute entitled him to a bill of particulars as a matter of right is without merit. In People v. [75 MICHAPP 269] Tenerowicz, 266 Mich. 276, 288, 253 N.W. 296, 301 (1934), the Court said that "(t)he proviso is confined to the statutory forms outlined in section 17258 (now M.C.L.A. § 767.44; M.S.A. § 28.984) and therefore does not apply to common-law forms of indictment". Accord, People v. O'Hara, 278 Mich. 281, 302, 270 N.W. 298 (1936). Since the information followed the common-law long form, rather than the statutory short-form, a bill of particulars was not mandatory. ³ People v. Tenerowicz, supra.

Although an order for a bill of particulars should never be refused when the court can see any reason to believe such particulars are necessary to inform the defendant of the particular offenses intended to be proved against him, People v. McKinney, 10 Mich. 54, 92 (1862), the denial of a bill of particulars in cases where the long form of...