People v. McDonald, 96.
| Decision Date | 30 June 1943 |
| Docket Number | No. 96.,96. |
| Citation | 306 Mich. 65,10 N.W.2d 309 |
| Parties | PEOPLE v. McDONALD et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Douglas McDonald and Edward Niamtu were convicted of larceny, and they appeal.
Judgment affirmed.
Appeal from Recorder's Court of City of Detroit; Donald Van Zile, judge.
Before the Entire Bench.
Bernard A. Pearl, of Detroit, for appellants.
Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and William E. Dowling, Pros. Atty., and John L. Potter and Henrietta E. Rosenthal, Asst. Pros. Attys., all of Detroit, for the People.
Defendants, Douglas McDonald and Edward Niamtu, were tried before a jury on an information which charged them in two counts with larceny of four tires of the value of $60, and receiving said stolen property. After the people had rested their case, defendants moved to dismiss the larceny count. This motion was denied. After testimony had been submitted in behalf of the defendants and both sides had rested, defendants renewed their motion to dismiss the larceny count. A discussion followed between court and counsel and the prosecutor concluded the discussion with the statement: ‘I will elect in my argument to the jury and tell them not to consider anything but the second count.’
The court charged the jury in part as follows:
The jury was unable to agree and the court declared a mistrial. A second trial was had, a little more than two months later, before the same judge who tried the first case, and another jury. The file and short book merely showed that the jury had disagreed at the previous trial and that the court had declared a mistrial. By reason of the lapse of time between the two trials, everyone had apparently forgotten what occurred at the first trial. The trial judge informed counsel that at the previous trial, the second count, that of receiving stolen property, was withdrawn, and that the defendants could only be tried on the first count, for larceny of property. At the conclusion of the second trial, when defendants' counsel moved to dismiss Count I, the following transpired:
‘Prosecutor Potter: Yes.
‘And then after some discussion on the merits of the case between Court and Counsel for both sides:
‘Mr. Pearl: You are going to...
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People v. Markham
...trial's taking place at all. * * *' The defendants in People v. Powers, 272 Mich. 303, 261 N.W. 543 (1935), and People v. McDonald, 306 Mich. 65, 10 N.W.2d 309 (1943), were properly brought to trial a second time. The people could have been prejudiced by the failure of defendants to assert ......
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People v. Jones
...4 The Supreme Court has held that a double jeopardy claim is waived if not raised before or during trial, People [75 MICHAPP 271] v. McDonald, 306 Mich. 65, 10 N.W.2d 309 (1943); People v. Powers, 272 Mich. 303, 261 N.W. 543 (1935), a view subscribed to by this Court. People v. Johnson, 62 ......
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People v. Cooper
...must be raised before or during trial or it is waived. People v. Powers, 272 Mich. 303, 261 N.W. 543 (1935), and People v. McDonald, 306 Mich. 65, 10 N.W.2d 309 (1943). Defendant has presented a very comprehensive brief on this issue and because of the importance of this question, we procee......
- People v. Strickland