People v. Paille, 15

• Decision Date: 11 July 1970
• Docket Number: J,No. 15,15
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert PAILLE, Defendant-Appellant. an. Term.
• Court: Michigan Supreme Court

Page 469

178 N.W.2d 469

383 Mich. 605

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert PAILLE, Defendant-Appellant.

No. 15, Jan. Term.

Supreme Court of Michigan.

July 11, 1970.

William L. Cahalan, Pros. Atty., Thomas P. Smith, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Boesky & Lippitt, P.C., by Norman L. Lippitt, Robert J. Sandler, Detroit, for defendant-appellant.

Before the Entire Bench.

BRENNAN, Chief Justice.

I cannot agree that the amendment of the recorder's court act by P.A.1919, No. 369 (M.C.L.A. § 725.1 et seq. (Stat.Ann.1962 Rev. and 1970 Cum.Supp. § 27.3941 et seq.)) gave rise to a new function in recorder's court to which the pre-existing restriction on review by another judge (L.A.1883, No. 326, Ch. XII, § 2, as amended by L.A.1893, No. 408 (C.L.1948, § 726.2 (Stat.Ann.1962 Rev. § 27.3552)) could not have application.

It gave rise to a new function all right but there is no reason to suppose that the legislature did not fully intend to vest that new function in a court whose judges were statutorily prohibited from reviewing each others decisions.

Whatever intra-court battles occasioned the adoption of the restriction upon intra-court review, the wisdom of preventing judges of equal station from overruling each other abides. And, the rationale applies especially to the split-level jurisdiction of recorder's court.

I would vote to reverse, and in the light of the delay already experienced in this criminal prosecution, I would, under our superintending authority, remand this cause to the circuit court for Wayne county to hear and rule upon the prosecutor's motion to remand to the magistrate.

KELLY, T. M. KAVANAGH, ADAMS and T. G. KAVANAGH, JJ., concurred with BRENNAN, C.J.

DETHMERS, Justice.

Defendant was charged in the recorder's court of the city of Detroit with first-degree murder. One of the judges of that court sat as examining magistrate and at the conclusion of the preliminary examination dismissed the charges for lack of evidence. During the examination he had excluded certain evidence offered by the people which they contend would have warranted binding defendant over for trial.

The people filed a motion for a writ of superintending control to reinstate the preliminary examination and remand to the examining magistrate with directions to receive and hear the excluded evidence and then reconsider his former ruling dismissing charges. This motion was heard and granted by the presiding judge of the recorder's court. Defendant's application for leave to appeal therefrom was denied by the Court of Appeals on the ground that jurisdiction in this case to review the decision of the examining magistrate on application of the people properly lies in the presiding judge of the recorder's court. Defendant contends that the people's appeal from the dismissal of charges by the recorder's court judge as examining magistrate may be taken only to the Court of Appeals.

Is it competent for the presiding a judge of the recorder's court to review the dismissal of charges in a criminal case by another recorder's court judge sitting as examining magistrate and reinstate the examination, remand it to the examining magistrate and direct him to receive certain testimony theretofore excluded by him and then reconsider his previous order dismissing charges?

Defendant says that the answer to the above question must be 'no' for the reason that L.A.1883, No. 326, Ch. XII, § 2, as amended by L.A.1893, No. 408 (C.L.1948, § 726.2 (Stat.Ann.1962 Rev. § 27.3552)), provides:

'* * * no judge of said court shall review or revise any order, judgment, sentence or act of any other judge of said court, involving the personal discretion, judgment or opinion of such other judge.'

That prohibition of review by one recorder's court judge of an order of another such judge appeared in the 1893 amendment and was directed toward the situation in which one judge of that court had tried and decided a case which decision it was not then intended should be reviewable by another judge of that court. Twenty-six years later, however, the legislature amended the recorder's court act by P.A.1919, No. 369 (M.C.L.A. § 725.1 et seq. (Stat.Ann.1962 Rev. and 1970 Cum.Supp. § 27.3941 et seq.)), for the first time authorizing recorder's court judges to sit as examining magistrates. See People v. Miller, 217 Mich. 635, 187 N.W. 366. That gave rise, then, to a new function, formerly that of a lower court, now to be performed by a recorder's court judge, to which the pre-existing restriction on review by another judge of that court could not have application.

C.L.1948, § 726.11 (Stat.Ann.1962 Rev. § 27.3561), being part of the recorder's court act, provides, as to jurisdiction of that court, that it has power:

'* * * to do all...