People v. Paugh, 71.
| Decision Date | 28 February 1949 |
| Docket Number | No. 71.,71. |
| Parties | PEOPLE v. PAUGH. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE Appeal from Circuit Court, Cass County; Glenn E. Warner, judge.
Joseph Paugh was convicted of breaking and entering in the nighttime with intent to commit larceny, and he appeals.
Affirmed.
Before the Entire Bench.
Joseph Paugh, in pro. per.
Stephen J. Roth, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, Daniel J. O'Hara, Asst. Atty. Gen., and Robert R. Waterson, Pros. Atty. for Cass County, of Dowagiac, for the People.
The defendant, Joseph Paugh, a man with a criminal record, was arrested on a charge of breaking and entering in the nighttime with intent to commit larceny. The original complaint and warrant set the date of the offense as on or about January 20, 1947. However at the preliminary hearing testimony revealed the error in stating the date of the offense, which should have been fixed as June 1, 1947. Defendant was bound over to the circuit court. The information thereafter filed set the date of the offense as June 1, 1947. On being arraigned and in the presence of and on the advice of counsel, defendant waived the reading of the information and pleaded not guilty to the charge. The jury trial was held September 16 and 17, 1947.
At the trial the State called as witnesses, Charles Basham and Paul Shidler, who were confined in an Indiana jail charged with burglary. The substance of their testimony was that they had been parties to the crime with which defendant was charged, that he had engineered it and that he had received his cut or share of the proceeds. They testified that they had met him three or four weeks prior to the day of the commission of the crime, that they saw him again on the evening of the burglary, and that he had told them where they could get the tires. They further testified that they, through Charles Basham, rented a truck from a U-Drive-it lot and drove in it to Cassopolis where shidler entered the building of the American Coach Company and handed tires out to Charles Basham, Red Paugh and John Petrosac; that they drove back to South Bend, dropped the defendant at Niles on the way back, then sold the tires and split the proceeds, Paugh getting his share later in the morning. All of this was denied by the defendant in his testimony.
The jury heard all of the testimony and after the charge by the court, to which there were no exceptions taken, returned a verdict of guilty. Appellant was sentenced to a term of from five to 15 years in state prision of southern Michigan.
Motion for a new trial was duly noticed and heard October 13, 1947. The motion was premised on three grounds: Taht the verdict was contrary to law; that the verdict was against the great weight of the evidence; and that ‘since the trial newly discovered evidence, not then available or known to the Respondent or his attorney, of a material and probably controlling nature was secured by Respondent's attorney.’ The trial judge denied the motion for a new trial, and the defendant brings this appeal in which he raises the same issues.
Appellant's claim that the verdict was contrary to law, is based upon the following. As above noted, in the complaint as originally made the date of the offense was stated as January 20, 1947, instead of ‘on the 1st day of June, 1947.’ But prior to defendant's arraignment the error in the date was discovered and in the information filed the date of the offense was charged as June 1, 1947. The record indicates that appellant and his counsel were aware of this discrepancy in the date at the time of the preliminary hearing; and it clearly appears that they knew of it before entering upon the trial of the case, but urged no objection on that ground. At his arraignment in circuit court defendant, represented by his counsel, waived the reading of the information and entered a plea of not guilty. By having so pleaded to the information in which the alleged date of the offense was that relied upon by the prosecution, any irregularity in the prior proceedings in this case was waived, and it could not thereafter be asserted in support of a motion for a new trial. In People v. Tate, 315 Mcih. 76, 23 N.W.2d 211, 213, we said: ‘The law has long been settled in this State that after proper arraignment in the Circuit Court and a plea of guilty or a plea of not guilty by defendant the prior proceedings had before an examining magistrate cannot be questioned; nor can defendant complain even though there has been no examination.’ On the record before us defendant's contention that the verdict of the jury, for the reason claimed, was contrary to the law is not sustainable.
as to defendant's contention that the verdict of the jury was ‘contrary to the great weight of the evidence’. a reading of the record discloses that, if the testimony of the people's...
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People v. Russell
...reasonable diligence have discovered and produced it at trial. People v. Pizzino (1945), 313 Mich. 97, 20 N.W.2d 824; People v. Paugh (1949), 324 Mich. 108, 36 N.W.2d 230; People v. Bauman (1952), 332 Mich. 198, 50 N.W.2d 757. In the instant case, defendant could have pursued the defense of......
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People v. Wilde, Docket No. 12127
...the province of the jury and reach a contrary conclusion. People v. Moshier, 306 Mich. 714, 11 N.W.2d 300 (1943); People v. Paugh, 324 Mich. 108, 36 N.W.2d 230 (1949). Defendant's second allegation of error is that AAA's knowledge that the pretense was false negated the reliance necessary t......
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