People v. Laslo, Docket No. 29578

• Decision Date: 08 September 1977
• Docket Number: Docket No. 29578
• Citation: 259 N.W.2d 448,78 Mich.App. 257
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Peter LASLO, III, Defendant-Appellant. 78 Mich.App. 257, 259 N.W.2d 448
• Court: Court of Appeal of Michigan — District of US

Page 448

259 N.W.2d 448

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Peter LASLO, III, Defendant-Appellant.

Docket No. 29578.

78 Mich.App. 257, 259 N.W.2d 448

Court of Appeals of Michigan.

Sept. 8, 1977.

Released for Publication Nov. 16, 1977.

[78 MICHAPP 258] Ronald C. Zellar, Hillsdale, for defendant-appellant.

(Atty. Zellar is now the current Prosecuting Attorney for Hillsdale County.)

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lawrence L. Hayes, Jr., Pros. Atty., by Donald L. Sanderson,[78 MICHAPP 259] Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and T. M. BURNS and KEYES, ^* JJ.

PER CURIAM.

Defendant was convicted by a jury of receiving or concealing stolen property over the value of $100. M.C.L.A. § 750.535; M.S.A. § 28.803. He appeals by right.

The examining magistrate twice dismissed charges against defendant, on November 25, 1975, and on December 18, 1975. The November 25 dismissal of a receiving or concealing charge was the result of the prosecution's inability to proceed because prosecution witnesses were unavailable, apparently because the prosecution had not prepared for the examination in the belief that a plea bargain had been reached. Defendant was rearrested and charged with breaking and entering an occupied dwelling, M.C.L.A. § 750.110; M.S.A. § 28.305, but the charge was again dismissed by the examining magistrate, on December 18, 1975, when the people were unable to establish lack of consent to entry because the owner of the premises allegedly broken and entered failed to appear to testify. Finally, defendant was rearrested and, after preliminary examination on both charges held on December 30, 1975, bound over to circuit court on both counts. A motion to sever the counts and try them separately was granted, and defendant went to trial first on the receiving or concealing charge. The prosecutor entered a nolle prosequi on the breaking and entering charge after defendant was convicted of receiving or concealing stolen goods, [78 MICHAPP 260] and he thereafter filed a supplemental habitual offender information. Defendant was convicted on his plea of guilty, as a second felony offender and received an enhanced sentence of from five to seven and one half years imprisonment.

Defendant contends that the preliminary examination procedure in this case resulted in harassment and a denial of due process. Although he does not expressly request that we do so, he apparently seeks to have this Court discharge him of his conviction on the ground that he was subjected to fundamentally unfair procedures. In response to defendant's argument, we note that this case, unlike Jones v. Oklahoma, 481 P.2d 169, 171 (Okl.1971), does not involve "shopping" among magistrates, ¹ nor did the prosecutor fail to adduce additional evidence at the preliminary examination at which defendant was ultimately ordered bound over to circuit court. Although we do not approve the procedure followed by the prosecutor in this case, we view it as a product of ineptness rather than as an attempt to harass defendant. ² Therefore we see no reason in this case to depart from the well-established Michigan rule:

"The discharge by an examining magistrate upon examination of a person accused of a crime is not a bar to his subsequent arrest, examination, and trial for the same offense because he has not been placed in jeopardy." People v. Miklovich, 375 Mich. 536, 539, 134 N.W.2d 720, 722 (1965).

Accord, People v. Riley, 72 Mich.App. 299, 301-302, 249 N.W.2d 397 (1976).

[78 MICHAPP 261] Defendant next contends that it was error to permit the prosecutor to file a supplemental habitual offender information after defendant was convicted of receiving or concealing stolen goods over $100 because the people were aware of defendant's first felony conviction from the outset of these proceedings. This precise contention has been rejected previously by this Court for reasons which we hereby adopt. People v. Hendrick, 52 Mich.App. 201, 209-210, 217 N.W.2d 112 (1974). People v. Marshall, 41 Mich.App. 66, 72-73, 199 N.W.2d 521 (1972).

Defendant's objections to the form of the information are equally meritless. They were first raised only after the people had rested, and therefore are deemed waived. People v. Owens, 37 Mich.App. 633, 637-638, 195 N.W.2d 36 (1972); People v. Reed, 17 Mich.App. 696, 697-699, 170 N.W.2d 303 (1969); see M.C.L.A. § 767.76; M.S.A. § 28.1016. Although the location shown in the information referred to the house from which the goods were stolen, whereas the location of the receiving and concealing offense was the BlackbridgeRoad address where defendant was arrested, defendant cannot claim prejudice owing to this deficiency. The preliminary examination testimony clearly established that defendant's residence was the location for purposes of Count II. Similarly, the date of the offense shown on the information, "on or about" November 5, 1975, was sufficient. That the crime was discovered on November 5 but not reported until November 6 is of no real significance, since time was not of the essence of the offense, and therefore the videlicet does not bind the prosecutor to the date shown on the information, at least in the absence of any showing of prejudice to the defense. People v. Fitzsimmons, 320 Mich. 116, 125, [78 MICHAPP 262] 30 N.W.2d 801 (1948); M.C.L.A. § 767.45; M.S.A. § 28.985; M.C.L.A. § 767.51; M.S.A. § 28.991. Finally, it is not essential that the prosecution produce in court every item of stolen property listed in the information; the exhibits produced and identified by the owner as having been stolen from his house were sufficient to sustain the conviction. For the foregoing reasons, we conclude that no manifest injustice resulted from the alleged defects in the information, and therefore we deem them waived. People v. Owens, supra; People v. Reed, supra.

Defendant's contention that insufficient evidence was presented by the prosecution to establish the element of guilty knowledge that the property he received or concealed had been stolen is...