People v. Phillips, 5

• Decision Date: 13 April 1970
• Docket Number: No. 5,5
• Citation: 383 Mich. 464,175 N.W.2d 740
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis PHILLIPS, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 740

175 N.W.2d 740

383 Mich. 464

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis PHILLIPS, Defendant-Appellant.

No. 5.

Supreme Court of Michigan.

April 13, 1970.

Lawrence R. Backofen, Asst. Pros. Atty., Muskegon, for plaintiff-appellee.

G. Thomas Johnson, Muskegon, for defendant-appellant.

Before the Entire Bench.

T. G. KAVANAGH, Justice.

Defendant Louis Phillips and one Ardis James were charged with breaking and entering ¹ a barber shop on or about March 13, 1967. Following their arraignment on the information, a second count was added to the information which charged Ardis James with receiving and concealing stolen property over one hundred dollars. ² To this added count James entered a plea of guilty.

A second count to the information charging Phillips with the same crime as that to which James pleaded guilty was added on August 8, 1967 and on October 10, 1967 the case came to trial. No arraignment or plea to the added count on Phillips' information was had until after his trial began.

During the course of the trial, after the prosecution had put in its case, the trial judge discovered that there had been no arraignment on the second count. The following excerpts from the transcript of the proceedings indicates what then took place:

THE COURT: * * * It appearing to the satisfaction of The Court that this defendant, Louis Phillips, has never been officially arraigned on the second count charging him with receiving and aiding in the concealment of stolen property. Receiving and aiding in the concealment of stolen property is not an included offense of breaking and entering. It's possible, however, to try a burglary case and a second count of receiving and aiding in the concealment of stolen property. It would appear to me at this time that, certainly, before the conclusion of this trial this Court should face up to and does here face up to the situation. It would appear to me there are two alternatives available to the defendant. This Count, this defendant never having been arraigned on the second Count, and the trial having already progressed on the charge of burglary, that the defendant and his counsel can insist that it not be included in the Court's deliberation as a second Count, and possession is absolutely not an included offense. However, he can waive the formal arraignment, after conferring with is (sic) client, so that when the case proceeds, this Court will have before it not only breaking and entering but Count 2. Does this fairly state the position which resulted from the discussion which we held at the Bench, but out of the hearing of the Reporter; would you say, Mr. Glotta?

MR. GLOTTA: Yes.

'MR. AINSWORTH: Yes, Your Honor.

THE COURT: Do you desire at this time, before proceeding further with your proofs, to counsel with your client? After counseling with your client, we will discuss this again with him before proceeding.

MR GLOTTA: We would like a minute or two.

THE COURT: We will have a short recess.

THE COURT: * * * Now let's get the answer to this question as to whether or not he will waive formal arraignment.

MR. GLOTTA: After counseling with my client, we have decided to waive arraignment on the second Count.

THE COURT: You are agreed that The Court may, at the conclusion of all the proofs, include Count 2 as if this defendant had been arraigned?

MR. GLOTTA: Yes.

THE COURT: Do you understand that, Louis?

MR. PHILLIPS: Well, I don't fully understand it because the first time I was charged I was charged with B & E and I come back in Court and I been charged with another charge.

THE COURT: This is a lesser count of receiving and aiding in the concealment of stolen property; and since you were not formally arraigned on that Count, I am offering your counsel an election. He can, if he wishes after consultation with you, move to strike the second Count. I have now offered him that election. If you are not agreeable with this and wish to confer further with him, we will grant that request. I want it clear in your mind. Do you understand it clearly?

MR. PHILLIPS: No, I don't understand it. He said that it would be better to waive and I have to do it on--

THE COURT: Let's make sure you understand. Let's not proceed one iota further until you do understand. I will explain it further. You are charged with the offense of breaking and entering, B & E. Do you understand that language?

MR. PHILLIPS: Yes.

THE COURT: Now, some offenses, for example, let us take the offense of murder in the first degree is murder in the second degree, manslaughter, and several kinds of assault. Those are what we call included offenses. They are not shown as second counts because they are included offenses of the murder charge. If the Jury or the Judge do find the defendant not guilty of murder in the first degree can find him guilty of murder in the second degree; and if not guilty of murder in the second degree, could find the defendant guilty of manslaughter, or guilty of felonious assault, or assault with a dangerous weapon. Do you understand that?

MR. PHILLIPS: I'm listening to you, Judge.

THE COURT: No--you're listening, but do you understand it?

MR. PHILLIPS: I understand that, what you said about the counts.

THE COURT: Now, in this case the original charge against you was breaking and entering. Aiding in the concealment of stolen property was not and is not an included offense of breaking and entering; but, the Prosecutor can or may charge it as a second Count. Count 1 being breaking and entering and Count 2, aiding in the concealment of stolen property. Now, do you follow me?

MR. PHILLIPS: Yes, I follow you.

THE COURT: But, when he added a second Count, or petitioned The Court to add it, he should have promptly brought you in and arraigned you on that second Count, see?

MR. PHILLIPS: Yes.

THE COURT: He should have brought you in. We have discovered this was not done and that is the reason for covering the matter at this time and informing your attorney that he has a right to make a decision whether he wants to move to strike this second Count or allow it to stay in. It should now be done one way or another. Some action should be taken on it and The Court is so informing you at this time. I have stated to your attorney that--I mean, that he is in the driver's seat in this situation; that he could either move to strike or he could agree to waive the formality of not having arraigned you, and allow it to stay in. The question is whether you want it in or whether you want it out.

MR. PHILLIPS: Well, it's up to him.

THE COURT: Are you willing to let that matter be decided for you by your attorney?

MR. PHILLIPS: Yes.

THE COURT: Do you understand it?

MR. PHILLIPS: I understand part of it.

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