People v. Losinger

• Decision Date: 03 December 1951
• Docket Number: No. 87,87
• Parties: , 44 A.L.R.2d 1449 PEOPLE v. LOSINGER.
• Court: Michigan Supreme Court

Page 137

50 N.W.2d 137

331 Mich. 490, 44 A.L.R.2d 1449

PEOPLE v. LOSINGER.

No. 87.

Supreme Court of Michigan.

Dec. 3, 1951.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Solicitor Gen., Lansing, Daniel J. O'Hara, Harry W. Jackson, Assts. Atty. Gen., for plaintiff-appellee.

Glen E. Losinger, William B. Rosczyk, Lansing, for defendant-appellant.

Before the Entire Bench.

BUTZEL, Justice.

On May 10, 1945, in the circuit court for the county of Montcalm, before Judge Paul R. Cash, defendant Glen Earl Losinger pleaded guilty in open court to an information charging that on or about March 20, 1945, he did then and there set fire to and burn a dwelling house located in Reynolds township, Montcalm county, Michigan, the property of one Fred I. Chase. At the time of the arraignment and plea, defendant in reply to direct questions propounded by the judge categorically stated that he was guilty, that his plea was voluntary, that no one had promised him anything, and that he had made a mistake and wanted to pay the penalty. After a recess, the prosecutor moved for sentence. The judge there-upon stated that he had talked with defendant and denied his request to be let off on probation; that he told defendant that he had offered nothing to recommend probation; that defendant had caused the sheriff's department, as well as other sheriff's departments, much trouble; that he had once been put on probation and that did not do any good; that he had served some time in the army jail. He also told him that he was fortunate that a supplemental information had not been filed against him as a second offender, so as to subject him to an additional term of imprisonment. He sentenced him to a minimum term of five years and a maximum of 20 years. The maximum term for arson of a dwelling house was in accordance with section 72 of the Penal Code, C.L.1948, § 750.72, Stat.Ann. § 28.267. The maximum term for arson in the case of real property other than a dwelling house is 10 years. Penal Code, § 73, C.L.1948, § 750.73, Stat.Ann. § 28.268.

This is a brief but complete resume of the entire stenographic record of the circuit court proceedings at the time of the plea and sentence. Other facts developed at the hearings on the various motions will appear in our further discussion of the case. Successive motions for leave to file delayed motions to vacate defendant's plea of guilty and the sentence imposed and granting a new trial and a petition for habeas corpu were all denied. These and the proceedings that followed are incorporated in and made part of a voluminous document that constitutes the record filed in this court.

It might be said at the outset that the defendant has shown considerable ability in acting without counsel. Notwithstanding very serious shortcomings and infractions of the law and very unfortunate behavioristic tendencies, defendant has had a very hard life. He has been very industrious and frugal, had for a time some standing in the community, and enlisted the interest of the solicitor-general to the extent that he made a motion that defendant be given another opportunity to present an additional motion to set aside the pleas of guilty and vacate judgment and sentence and have counsel appointed for him, as the question of whether the building that was set on fire was a dwelling house within the meaning of the statute had never been passed on in this State. Defendant also raised other questions.

Judge Archie D. McDonald, in denying the motion, found that there were really only three reasons and grounds claimed, viz.: whether defendant's plea of guilty was free and voluntary; whether it was a burning within the meaning of the statute; and whether the building burned was a dwelling house. Upon denial of the motion, leave to appeal to this court was granted upon the recommendation of the solicitor-general, who, while willing to afford defendant an opportunity to present his claims of error, contends that they are without merit.

Defendant claims that his plea of guilty should be vacated on the ground that he was arrested without warrant. It is true that the warrant was not issued and read to him until very late the day following his arrest and after he had been in custody 32 hours during which time he had made a complete confession which was taken down stenographically, transcribed and signed by defendant, and witnessed by four parties. It was not sworn to by defendant. The conviction was based on defendant's plea of guilty in open court, not on the confession, which was not introduced in evidence. At the time of the hearing on the first notion that was denied, in a supporting affidavit, defendant claims he was 'without the benefit of counsel' and was otherwise not properly informed of his rights in the premises and had permitted himself to be talked or tricked into a plea of guilty for a crime which he did not commit. Defendant makes the strange statement that he considered it was legitimate for him to 'lie' when not under oath, but that he would not do this when under oath. However on the hearing on a later motion, defendant stated after being sworn that he had made up his mind to plead guilty, that he wanted it to appear he was guilty. With only a $100 tax assessment on the entire property, he felt that it was the best thing to do. He further stated: 'If I beat the rap it would have cost me quite a lot. I don't have money to hire an attorney; I spent a lot of cash for other things and I don't have money for an attorney.' He evidently did not want an attorney appointed for him as he further added, 'a State attorney is worse than none.'

Defendant stresses the fact that he was arrested without warrant or without valid reason therefor, and he was kept an unreasonable length of time before warrant was issued. On the other hand, it was brought out that, when they made the arrest, the officers knew that the fire was incendiary and believed that defendant was the only person who might have a motive and the opportunity to set the building on fire; that there were footprints from defendant's home to the property burned; that the officers thus held reasonable grounds to believe a felony had been committed, and that the defendant had committed it. Code of Criminal Procedure, ch. 4, § 15, C.L.1948, § 764.15, Stat.Ann. § 28.874. People v. Orlando, 305 Mich. 686, 9 N.W.2d 893; People v. Bommarito, 309 Mich. 139, 14 N.W.2d 812. As the arrest was followed by a complaint and warrant and defendant was bound over to the circuit court for trial, at which he pleaded guilty, even if there were merit to defendant's claim that the arrest was irregular, it would not affect the trial. People v. Miller, 235 Mich. 340, 209 N.W. 81; In re Van Dyke, 276 Mich. 32, 267 N.W. 778.

Defendant further claims that he did not have a preliminary examination before a magistrate, as provided for by C.L.1948, § 766.4, Stat.Ann. § 28.922. He waived this examination, as shown by the return of the examining magistrate. C.L.1948, § 767.42, Stat.Ann. § 28.982, provides that no information should be filed until the accused shall have had a preliminary examination as provided by law, but it further states, 'unless such person shall waive his right to such examination'. Defendant makes no showing that there was not a waiver as stated in the return of the examining magistrate. The statute does not provide that such waiver must be in writing. Further, a plea of guilty upon arraignment to an information in the circuit court waives a preliminary examination. People v. Tate, 315 Mich. 76, 23 N.W.2d 211; In re Reno, 321 Mich. 497, 32 N.W.2d 723.

Defendant further claims that he was denied some constitutional or statutory rights because of the speedy arraignment, plea and sentence, denial of counsel, or failure to have explained to him his rights in the premises. Twenty days did elapse between the time defendant was bound over to the circuit court for trial, and the return of the examining magistrate and the information were filed but shortly before the arraignment at which defendant pleaded guilty. Defendant had ample time during the 20 days in which to consult friends or counsel. He evidently did not want any counsel.

Defendant further claims that prior to the sentence being pronounced the trial judge obtained from police officers certain information regarding defendant's record. There was no stenographic record introduced, if there was one, as to what took place during the recess before the sentence. In a typewritten statement of facts signed by defendant in support of a motion previously filed on April 17, 1946, and accompanying it, he stated that he did tell the judge that he had been arrested or paid a fine once each in Ionia, Kent and Mecosta counties. On the hearing of the instant motion, defendant admitted that he had been found guilty of breaking and entering, a felony. He, however, claims that he believed it was only a misdemeanor and that he had gone into a vacant building that was open and he thought he had only been charged with larceny from a vacant building. He states he was fined a small amount but was placed on probation for three years, and subsequently an additional two years. Undoubtedly the judge was familiar with the official records when he stated that defendant could have been charged with a second felony by supplemental information and given an additional sentence. Defendant in 1916, when a soldier in the United States army, was convicted or violating certain articles of war and sentenced to a dishonorable discharge, forfeiture of pay and confinement at hard labor for three years which the reviewing authority directed to be the United States Penitentiary at Leavenworth, Kansas. See In re Losinger, 329 Mich. 47, 44 N.W.2d 864, where defendant raised an entirely different question. The latter case was decided in this court a number of years after the conviction in the instant case, but it was quite evident that...