People v. Norman, Docket No. 2521

• Decision Date: 21 March 1968
• Docket Number: Docket No. 2521,No. 1,1
• Citation: 9 Mich.App. 647,158 N.W.2d 38
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald George NORMAN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 38

158 N.W.2d 38

9 Mich.App. 647

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald George NORMAN, Defendant-Appellant.

Docket No. 2521.

Court of Appeals of Michigan, Division No. 1.

March 21, 1968.

Released for Publication April 26, 1968.

Leave to Appeal Denied Sept. 4, 1968.

Max E. Klayman, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty, Samuel J. Torina, Chief Appellate Lawyer, Thomas P. Smith, Asst. Pros. Atty., Wayne County, Detroit, for appellee.

Before T. G. KAVANAGH, P.J., and LEVIN and VANDER WAL ^*, JJ.

LEVIN, Judge.

The information originally filed charged the defendant with breaking or attempting to break, burn, blow-up, or otherwise injure or destroy a safe, vault, or depository of money or other valuables in a building or place on October 13, 1965, with intent to commit larceny in violation of C.L.1948, § 750.531 (Stat.Ann.1954 Rev. § 28.799).

The defendant moved to quash that information. The trial judge concluded that the statute violated the United States Constitution, Am. 14, in not forewarning with definiteness precisely what conduct is criminal, ¹ but he stated his opinion was tentative, was not based upon adequate opportunity to research and consider the matter, and he would therefore 'make this opinion and decision only provisional. It shall be treated as opinion Nisi.' ² The court then said the prosecuting attorney would have 30 days within which to submit a brief, after which defense counsel could submit a reply brief.

A formal order was not entered on the basis of that provisional opinion. However, the judge's journal of February 11, 1966, contains the following entry: 'Motion to quash for defendant, Gerald G. Norman, granted.' The journal was signed with the facsimile of the judge's signature on February 14, 1966.

On February 24, 1966, the assistant prosecuting attorney moved to add to the information a count alleging that the defendant broke and entered a building, with intent to commit larceny in violation of C.L.1948, § 750.110, as amended by P.A.1964, No. 133 (Stat.Ann.1968 Cum.Supp. § 28.305). Defense counsel stated he had no objection to the addition of the count, and the court directed its addition. The defendant personally waived preliminary examination on the added count, was convicted on his plea of guilty and sentenced.

On appeal the defendant claims that after the original information was quashed another count could not be added without new proceedings before a magistrate and the filing of a new information, and that the old information could not be amended to charge a distinct and different crime not included in the complaint and warrant.

The defendant suggests that since it is not the practice to enter a formal order where a motion to quash is granted, the journal entry might be treated as an order; and, since courts speak through their orders rather than their opinions, ³ the order so entered quashed the information without reservation of a power to modify. We find no need to rule whether a journal entry may be treated, or function, as an order where it is not the practice to enter a formal order. ⁴ If the journal entry were deemed to be an order, it could, like any other order, be changed to correct a clerical mistake and, thus, reflect the court's clear reservation ('shall be treated as opinion Nisi') of the power to modify the order. GCR 1963, 528.1 ⁵. Compare Kintz v. Galvin (1922), 219 Mich. 48, 188 N.W. 408.

However the matter may be viewed, at the time the new count was added and the guilty plea accepted, the court had before it a viable information--one that either had never been quashed because no order had been entered, or one which was reactivated by virtue of the tentative nature of the earlier action. The defendant's consent to the procedures followed waived nonoccurrence of the condition upon which the judge had made his determination provisional, and his consent makes it unnecessary for us to decide whether a trial judge can properly set aside a decree Nisi without occurrence of the condition specified in the judgment.

Quashing the information did not deprive the court of jurisdiction over the defendant on the original complaint.

'The complaint before the justice, his warrant, commitment, and return were still of the same force and virtue as the basis for an information as if that which had been quashed had never been presented. * * *

'The court had lost no jurisdiction of the prisoner by the void or defective information which had been quashed.' Mentor v. People (1874), 30 Mich. 91, 93. ⁶

The statute does not prescribe the form of a complaint. The primary function of the complaint is to move the magistrate to determine whether a warrant shall issue, and the justification for issuance of the warrant need not appear in the complaint. Turner v. People (1876), 33 Mich. 363. The complaint does not 'fix and control the afterproceedings.' People v. Kahler (1892), 93 Mich. 625, 627, 53 N.W. 826. See, also, People v. Pichette (1897), 111 Mich. 461, 462, 69 N.W. 739. 'The information is not predicated upon the complaint or the examination upon which the warrant issues, but it is presumed to have been framed with reference to the facts disclosed at the examination which succeeds the arrest.' People v. Kahler, supra, 93 Mich. p. 627, 53 N.W. 826.

While an accused cannot be informed against until a judicial determination upon the preliminary examination that a crime has been committed and there is probable cause to believe him guilty; ⁷ and may not be trier for an offense different from the one for which he was examined or waived examination, ⁸ it has been said that where he fails before pleading to object to an information charging an offense distinct from that for which he was examined upon the complaint, he will be deemed to have waived the defect. People v. Jones (1872), 24 Mich. 215, 218.

In People v. Handley (1892), 93 Mich. 46, 52 N.W. 1032, People v. Monick (1938), 283 Mich. 195, 277 N.W. 883, and People v. Donovan (1924), 228 Mich. 149, 151, 152, 199 N.W. 620, the defendants timely objected to amendments charging offenses which had not been the subject of a preliminary examination; and in People v. Dochstader (1936), 274 Mich. 238, 264 N.W. 356, the defendant made timely objection that the information as originally filed charged an additional offense distinct from the one charged in the complaint and warrant, a preminary examination having been held on the complaint charge only. In those cases the defendants prevailed. Timely objection distinguishes those cases from the one here for decision.

We acknowledge that in Mentor the new information's charge was identical with the charge in the quashed information. However, considering the limited function of the complaint and warrant in a felony case, ⁹ we see no reason why a defendant who is within the court's jurisdiction on a pending complaint (here, the safecracking charge), may not waive a new complaint and warrant preceding preliminary examination, just as he may waive preliminary examination itself. ¹⁰ Our Supreme Court has so held. In People v. Jones, supra, the defendant was examined before the magistrate on one offense, but the information charged him with (24 Mich. p. 218) 'a distinct offense from that charged in the complaint, and upon which defendant was examined'. The defendant pleaded not guilty and went to trial. After the State introduced its evidence, the defendant moved for discharge on the grounds there had been no complaint against him for the crime alleged in the information and he had never been examined upon the charge contained in the information. The court ruled (pp. 218, 219):

'Had this motion been made before pleading not guilty to the information, it must have prevailed. But as the statute expressly authorizes a defendant to waive an examination, we think it clear * * * that he may waive it as well when called upon to plead to the information, as when brought before the magistrate for examination; and we think the plea of not guilty must be treated as such waiver.'

We conclude that when the defendant Norman waived preliminary examination on, and pleaded guilty to, the added count, he validly consented to its addition and waived the omitted proceedings which would otherwise have been required. Defendant, having consented and agreed to the procedures followed, may not now be heard to challenge them.

Affirmed.

* Hon. JOHN H. VANDER WAL, Circuit Judge for County of Kent, appointed by Supreme Court for hearing month of April, 1967, pursuant to § 306, P.A.1964, No. 281.

1 The trial judge stated: 'by title or label, it (the statute) suggests that there must be assaultive conduct for the crime, and on the other hand, burys in the multifarious language of the statute in offense which does not require such conduct.' The judge added that the statute might also be objectionable in that it ...