People v. Lynch

• Decision Date: 05 May 1874
• Court: Michigan Supreme Court
• Parties: The People v. Timothy Lynch

29 Mich. 274

The People v. Timothy Lynch

Supreme Court of Michigan

May 5, 1874

Submitted on Briefs April 22, 1874

Exceptions from Bay Circuit.

Information for assault with intent to commit rape. Conviction affirmed.

Judgment given upon the verdict.

^[*] T. F Shepard prosecuting attorney of Bay county for the People.

Hatch & Cooley, for respondent.

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

OPINION

Christiancy, J.

The defendant was tried in the circuit court for Bay county upon an information charging him with having, on the 7th May, 1873, at Bay City, in said county, with force and arms, "in and upon one Mary Carney, a female child of the age of ten years and upwards, to wit: of the age of fourteen years," feloniously made an assault, "with intent, her, the said Mary Carney, by force, and against her will, feloniously to ravish and carnally know, contrary to the statute," etc.

Upon being called upon to plead to the information the defendant first put in a plea in abatement, setting forth, substantially, that the complaint on which he was arrested and examined before the justice of the peace, for the offense charged, was sworn to only by Michael Carney, the father of the girl, who had no personal knowledge of the facts, but swore to the matters stated in the complaint only upon the information he had received from his daughter, upon whom the offense was charged to have been committed, and that no other evidence had been taken by, or submitted to the justice; that consequently the justice had acquired no jurisdiction to issue the warrant upon which defendant was arrested and brought before the justice for examination; that on the examination complainant testified that when he made the complaint before the justice he had no personal knowledge of the facts, but that he had made it from the information received from said daughter; that, therefore, the justice not having acquired jurisdiction, the examination before him was all void and of no effect, and therefore the defendant had never had the examination to which, by the statute, he was entitled before the information could be filed against him. The plea further states that, upon being brought before the justice upon the warrant, he offered to plead not guilty to the offense charged in the complaint, and demanded a trial by jury, which was refused by the justice. And further, that the evidence on the examination before the justice, when defendant was brought in upon the warrant, did not tend to prove an offense not cognizable by a justice of the peace [by which he must mean that it did not tend to prove the intent charged].

To this plea the prosecuting attorney demurred, and upon argument the demurrer was sustained; and thereupon, by the permission of the court, the defendant moved to quash the information, upon substantially the same grounds as those set up in the plea, viz: that the complainant, when he swore to the complaint, had no personal knowledge of the facts, etc., that therefore the justice acquired no jurisdiction to issue the warrant, or to hold the examination which had been had before him upon the complaint, and consequently that the defendant never had had the examination for the offense to which he was entitled before he could be called upon to answer to an information; and, further, that the offense charged in the information was one cognizable before a justice.

This motion was based upon an affidavit of the defendant, an affidavit of the justice before whom the complaint was made and the examination had, and upon a copy of the complaint. The only material matter in the affidavit of the defendant is, that complainant, when he made the complaint, had no personal knowledge of the facts, and that no other evidence was given before the justice, prior to the issuing of the warrant.

The justice in his affidavit says, "that the warrant was issued upon the complaint of said Michael Carney in writing, and that no witnesses were examined by this deponent, before issuing said warrant, the same having been issued upon the written complaint alone, and oral examination of said Michael Carney on oath; from which oral examination it appears that said Michael Carney derived his knowledge and information from Mary Carney, his daughter." He further says that defendant, when brought before him for examination, put in a plea of not guilty, to the offense charged, and demanded a jury trial, which was refused, etc.

This motion to quash was denied by the circuit court, and the defendant was tried and convicted, as already stated, and the case is brought to this court upon exceptions before judgment, without a writ of error, as provided by the statute.

The same objections are now insisted upon in this court, as were raised by the plea in abatement and the motion to quash at the circuit. And it is further insisted that the arrest (as well as the examination) was void under section 26, Article VI., of our State constitution, which provides "that no warrant to search any place or to seize any person or thing shall issue without describing them; nor without probable cause, supported by oath or affirmation;" as well as under section 32, Article VI., providing that "no person shall be deprived of life, liberty or property, without due process of law;" and if these objections were good in the circuit court, the defendant is equally entitled to any benefit to be derived from them in this court upon his exceptions.

The complaint upon which the warrant was issued and the defendant was examined, is in these words:

"State of Michigan: County of Bay, ss: The complaint of Michael Carney, taken and made before me, a justice of the peace of the city of Bay City, in said county, upon the seventeenth of May, A. D. 1873, who being duly sworn says that heretofore to wit: On the second day of May, A. D. 1873, at the city of Bay City, and in the county aforesaid, one Timothy Lynch, late of Bay City, in the county of Bay, with force and arms, in and upon one Mary Carney, a female child of the age of ten years or more, to wit, of the age of fourteen years, in the peace of the people of the State of Michigan then and there being, feloniously did make an assault with intent her, the said Mary Carney, by force, and against her will, then and there, feloniously to ravish and carnally know, and other wrongs to her, the said Mary Carney, then and there did, against the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan. Whereof the said Michael Carney prays that the said Timothy Lynch may be apprehended and held to answer this complaint, and further dealt with in relation to the same as law and justice may require.

(Signed.) "Michael Carney.

"Taken, subscribed and sworn before me the day and year first above written.

(Signed.) "John Hargadon,

"Justice of the Peace."

It will be seen that this complaint is as positive in form as it could have been made by an eye witness of the facts, and appears by the jurat to be sworn to without qualification; and the language in which the offense is described is as full and formal as it is required to be in an indictment or information. There is nothing upon its face to indicate that complainant did not personally know the facts, nor any thing in the nature of the facts stated to make this improbable or to excite a suspicion that he testified from information and belief only, except perhaps as to the intent charged, which is generally but an inference to be drawn by a court, magistrate or jury from facts in evidence.

The statute (Comp. L. § 7844) requires the justice to examine the complainant on oath (and any witnesses who may be produced by him), though it does not require that examination to be taken down in writing, nor the evidence to be inserted in the complaint, as in the case of an affidavit for an attachment, or a warrant in civil cases. We must, therefore (without the justice's affidavit, which states the same thing), presume that the justice examined the complainant orally, not embodying the language or particular evidence given by him, in the complaint, drawing the complaint to place in proper form the charge of the offense which he thought the facts elicited on the oral examination tended to prove. The object of this examination is to enable the justice to determine from it whether there is sufficient ground for issuing a warrant to bring the accused before him for examination; and the object of that examination is, not to determine the guilt or innocence of the accused as upon a trial, but whether there is probable cause for believing him guilty; and if the justice thinks from the evidence on the examination that there is such probable cause, he is to cause him to be committed or enter into recognizance so as to secure his presence at the circuit court for trial, as was done in this case; and it would be preposterous to suppose that any stronger evidence could be required for issuing the warrant to enable the justice to examine the accused, than is required on the examination itself.

The complaint, upon its face, being sworn to in the usual and regular manner, is amply sufficient to give the justice jurisdiction to issue the warrant and to examine the prisoner. And if it be competent in this or any other case where the jurisdiction thus appears upon the face of the papers, to go behind them, for the purpose sought by the defendant here,--which we do not mean to affirm,--we think the showing here, which was only that the warrant was issued upon the written complaint and oral examination of complainant alone, and that complainant testified only from the knowledge and information derived from his...