People v. Mosley, 81

• Decision Date: 29 December 1953
• Docket Number: No. 81,81
• Parties: PEOPLE v. MOSLEY.
• Court: Michigan Supreme Court

Page 785

61 N.W.2d 785

338 Mich. 559

PEOPLE v. MOSLEY.

No. 81.

Supreme Court of Michigan.

Dec. 29, 1953.

E. B. Reese, Saginaw, for appellant.

Frank Millard, Atty. Gen., Edmund Shepherd, Sol. Gen., Lansing, Chester R. Schwesinger, Pros. Atty., Flint, Albert H. Callahan, Asst. Pros. Atty., Flint, for appellee.

Before the Entire Bench.

BUSHNELL, Justice.

Defendant John Mosley was convicted and sentenced for the crime of endeavoring to incite and procure one to commit perjury. See C.L.1948, sec. 750.425 Stat.Ann. sec. 28.667.

At the September 1949 term of the circuit court for Genesee county, an information was filed charging Richard Schaffer, Raymond Schaffer and John Tierney with the crime of rape of one Iris Romer. Approximately a week before October 23, 1951, that being the date fixed for their trial, Ramona Romer, a sister of Iris, was subpoenaed as a witness for the people in that case. It is claimed that Mosley, on October 22, 1951, endeavored to incite and procure Ramona to commit the crime of perjury by falsely testifying at the Schaffer trial that the crime of rape perpetrated upon her sister, Iris, occurred in Shiawassee county and not in Genesee county. It is alleged that Mosley promised to pay Ramona $500 and give her a trip to Florida for such testimony.

On October 31, 1951, Frank C. Zeiter, a deputy sheriff of Genesee county, swore to a complaint before Hon. Raymond C. French, a municipal judge of the city of Flint, in which the foregoing facts were recited. The complaint being regular in form, the municipal judge issued a warrant. Mosley was brought before Judge French on November 5, 1951, and upon demand for an examination, one was had resulting in the determination that there was probable cause that the charged offense had been committed and that Mosley was guilty thereof.

Upon arraignment in the circuit court on November 13, 1951, defendant stood mute and a plea of not guilty was entered. Zeiter was called as a witness by the respondent and he testified that he signed the complaint in the case and that no one gave any testimony before the court on the complaint other than himself. Zeiter further testified:

'Q. You weren't present at any of this conversation that was alleged to have occurred in which the defendant was involved in this subornation of perjury? A. No, sir.

'Q. You got this information from someone else? A. That is correct.

'Q. And you have no knowledge from any other source? A. That is correct.'

A motion to dismiss on behalf of Mosley was then made and denied. A subsequent motion to quash the information was also denied. A 20-day stay of proceedings was granted by the trial court and an application for leave to appeal from the denial of the motion was made to this court, and while that application was pending here the cause came on for trial in the circuit court on May 21, 1952. Mosley's application for leave to appeal was denied here on June 11, 1952. After conviction and sentence a motion was made in the circuit court to set aside the verdict and judgment and grant a new trial on various grounds, which were denied. Upon leave granted, Mosley has appealed.

The 17 questions raised on appeal have been examined. The first of these is: 'Did the municipal judge have jurisdiction to issue the warrant for the arrest of the respondent?'

The statutory provisions regarding the making of a complaint read in part as follows 'Sec. 2. Whenever complaint shall be made to any magistrate named in section 1, chapter 4, of this act, that a criminal offense not cognizable by a justice of the peace has been committed, he shall examine on oath the complainant and any witnesses who may be produced by him.

'Sec. 3. If it shall appear from such examination that any criminal offense not cognizable by a justice of the peace has been committed, the magistrate shall issue a warrant directed to the sheriff, chief of police, constable or any peace officer of the county, reciting the substance of the accusation and commanding him forthwith to take the person accused of having committed such offense and to being him before such magistrate to be dealt with according to law, and in the same warrant may require such officer to summon such witnesses as shall be named therein.' C.L.1948, secs. 766.2, 766.3, Stat.Ann. secs. 28.920, 28.921.

The complaint upon its face purports to have been made upon the knowledge of Deputy Sheriff Zeiter. The following is stated therein:

'The complaint, on oath and in writing, of Frank Zeiter, taken and made before me * * * who being duly sworn, says that heretofore, to-wit, on or about the 22nd day of October, A. D. 1951, at the city of Flint, and in the county aforesaid, James Mosley did feloniously and unlawfully endeavor to incite and procure,' etc.

This court, in People v. Lynch, 29 Mich. 274; Potter v. Barry Circuit Judge, 156 Mich. 183, 120 N.W. 586; and People v. Czckay, 218 Mich. 660, 188 N.W. 376, settled the question that a complaint which, upon its face, purports to be made upon the knowledge of the affiant, is a sufficient compliance with the statute, and that it is incompetent for a defendant upon arraignment to impeach the complaint by showing a lack of knowledge by the complaining witness. The positive statements made upon the oath of the complainant gives the magistrate jurisdiction to issue the warrant. The fact that 'it does not appear there was no examination of witnesses under oath', or that the complainant did not adhere to the truth, cannot avoid a warrant. People v. Hare, 57 Mich. 505, 24 N.W. 843, 845, and People v. Schottey, 66 Mich. 708, 33 N.W. 810. Jurisdiction having attached for the issuance of the warrant, it could not be later impeached. Potter v. Barry Circuit Judge, supra.

Mosley insists that the circuit court was without jurisdiction to try his case while an application for leave to appeal was pending in the Supreme Court from the order denying his motion to quash the information. After denial, in the trial court, of this motion on December 3, 1951, a stay of 20 days was granted. The calendar entries do not show any extension of this stay. On May 21, 1952, when the jury was impaneled and the trial begun, this stay had expired. Although defendant's application for leave to appeal was not denied here until June 11, 1952, the circuit court had not lost jurisdiction to proceed with the trial on May 21st.

At the trial the people, over the objection of the defendant, were permitted to read to the jury the names of the witnesses endorsed on the information in the case of the People v. Raymond Schaffer, Richard Schaffer and John Tierney. This is assigned as error. It was necessary that the prosecution show that the Schaffer-Tierney rape case was pending and that Ramona Romer was a material witness in that case.

Iris Romer, the complainant in the rape case, was called as a witness in the instant...