People v. McFadden, 68

• Decision Date: 28 December 1956
• Docket Number: A,No. 68,68
• Citation: 79 N.W.2d 869,347 Mich. 357
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Alfonso McFADDEN, a/k/a Alfred McFadden, Defendant and Appellant. pril Term.
• Court: Michigan Supreme Court

Page 869

79 N.W.2d 869

347 Mich. 357

The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Alfonso McFADDEN, a/k/a Alfred McFadden, Defendant and Appellant.

No. 68, April Term.

Supreme Court of Michigan.

Dec. 28, 1956.

Paul C. Younger, William G. Jenkins, Lansing, for defendant and appellant.

F. Jack Neller, Calhoun County Prosecuting Atty., Battle Creek, for plaintiff and appellee.

Before the Entire Bench.

CARR, Justice.

The defendant in this proceeding was charged with being the father of twin children born on July 29, 1954, in the City of Battle Creek, to an unmarried woman, 20 or 21 years of age. Complaint was made to the judge of the municipal court of said city by the mother of the children, pursuant to the provisions of the statute ¹ relating to the maintenance of children born out of wedlock. The proceeding contemplated by said statute was followed. A warrant was issued and defendant was arrested. Subsequently an examination was held and the defendant was required to enter into a recognizance for his appearance in the circuit court at the next term.

On the trial of the cause counsel for defendant offered certain testimony for the purpose of showing that defendant was, at the time the alleged act of intercourse took place, in his own home and not where the complaining witness testified said act was committed. In other words, defendant sought to interpose the defense commonly referred to as an alibi. On objection the testimony was excluded by the trial judge on the ground that notice of such defense had not been given in accordance with the provisions of C.L.1948, § 768.20, Stat.Ann.1954 Rev. § 28.1043. Said section is found in the code of criminal procedure, and reads as follows:

'Whenever a defendant in a criminal case not cognizable by a justice of the peace shall propose to offer in his defense testimony to establish an alibion behalf of the defendant, or of the insanity of such defendant either at the time of the alleged offense or at the time of trial, such defendant shall at the time of arraignment or within 10 days thereafter but not less than 4 days before the trial of such cause file and serve upon the prosecuting attorney in such cause a notice in writing of his intention to claim such defense and the names of witnesses to be called in behalf of such defendant to establish such defense known to him at that time. Names of other witnesses may be filed and served before or during the trial by leave of the court and upon such conditions as the court shall determine. In cases of a claimed alibi such notice shall include specific information as to the place at which the accused lcaims to have been at the time of the alleged offense.'

Defendant was convicted by the jury and an order in accordance with the statute was entered by the trial judge. Defendant has appealed, contending that the statute above quoted is not applicable in a proceeding of this nature, and that, in consequence, the trial court was in error in excluding testimony tending, as it is claimed, to establish the defense of an alibi.

On behalf of appellant it is urged that a proceeding under the statute here involved is not a criminal case in the proper acceptance of the term, that it is basically civil in nature, and that procedural requirements prescribed by law with reference to the conducting of criminal cases generally do not apply. On behalf of the people it is insisted that the procedure outlined by the statute under which the complaint was filed and subsequent proceedings had is analogous to that in criminal cases generally, and that the trial judge was right in holding that testimony of a claimed alibi was not admissible, no notice of such claim having been given pursuant to the section of the code of criminal procedure above quoted.

In the case at bar defendant was arrested, was given a preliminary examination before the magistrate issuing the warrant, and was required to enter into recognizance for his appearance in circuit court. It may be noted that the testimony of the complaining witness as to the time and place of the alleged act of intercourse between the parties as given on the preliminary examination was essentially identical with her statements as a witness on the trial. It thus appears that defendant, following the examination, was aware of the claims of the people with reference to such matter. He was thus in position, had he deemed it necessary, to give the statutory notice indicating that on the trial he would offer proof of an alibi. No claim is made that he could not have complied with such requirement if applicable to him. The issue is, in consequence, whether he was bound to give the notice as a condition precedent to the introduction of the tendered proof.

In prior decisions of this Court reference has been made to proceedings under the statute to determine liability for the support of a child, or children, born out of wedlock. In People ex rel. Pangborn v. Smith, 65 Mich. 1, 4, 31 N.W. 599, 600, it was said:

'The proceedings in cases of this kind are neither strictly criminal nor civil in their nature, but partake of the character of both. So far as they aim to protect the public, they are quasi criminal.'

We think it apparent that the requirement of the code of criminal procedure with reference to giving notice of the defense of an alibi in certain cases was enacted for the benefit and protection of the public. No claim is made in the instant case that its application to a procedure of this nature would deprive defendant of any vested constitutional right. Rather, the issue is whether the legislature intended such application.

This Court has taken the position in prior decisions that the defendant in a case of this nature is entitled to the benefit of certain procedural safeguards applicable to criminal cases. In People v. Martin, 256 Mich. 33, 239 N.W. 341, the defendant sought to waive a jury trial in accordance with the provisions of a section of the code of criminal procedure granting such right to defendants in criminal cases. Said section, C.L.1948, § 763.3, Stat.Ann.1954 Rev. § 28.856, reads as follows:

'In all criminal cases arising in the courts of this state whether cognizable by justices of the peace or otherwise, the defendant shall have the right to waive a determination of the facts by a jury and may, if he so elects, be tried before the court without a jury. Except in cases cognizable by a justice of the peace, such waiver and election by a defendant shall be in writing signed by the defendant...