People v. Pichitino, 86
| Decision Date | 08 June 1953 |
| Docket Number | No. 86,86 |
| Parties | PEOPLE v. PICHITINO et al. |
| Court | Michigan Supreme Court |
I. A. Capizzi, Detroit, Alfonso A. Magnotta, Albion, Cobb, Wilder & Nielson, Battle Creek, for appellants.
George H. DeMund, Pros. Atty., Albion, E. Stanley Everett, William C. Burke, Asst. Pros. Attys., Battle Creek, for appellee.
Before the Entire Bench.
Defendants appeal from denial of their motion to quash an indictment returned against them by a 23-man grand jury. They contend that P.A.1949, No. 311, abolished the 23-man grand jury. Reliance is placed upon the provision of that act that whenever a complaint shall be filed with or referred to a circuit judge and he shall have probable cause to suspect that a crime shall have been committed he 'shall forthwith call 2 other judges' to act en banc with him and, if they shall determine that there is probable cause to suspect the commission of such crime and that any person may be able to give material evidence with respect thereto, they may, in their discretion, direct an inquiry, by themselves as a three-man grand jury, to be conducted in the manner provided by that act. Defendants say that the quoted words 'shall forthwith' admit of no other construction than that they are mandatory, and that the language of this act preempts the field, thus repealing, by implication, all other, pre-existing laws of inquiry and indictment in criminal cases. They cite a number of cases to the effect that the word 'shall' is mandatory, while plaintiff cites others in which it was held to be permissive only. Defendants also cite cases holding that an act containing no express repealing clause may, nevertheless, repeal, by implication, all previous inconsistent or repugnant acts or those occupying ground wholly covered by the new act. Plaintiff, in turn, cites cases for the proposition that repeals by implication are not favored and are not permitted, if they can be avoided by any reasonable construction of both statutes, unless the intent to repeal very clearly appears or the two acts are so incompatible that both cannot stand. The conclusion to be drawn from them all is set forth in City of Ludington v. Michigan Associated Telephone Co., 333 Mich. 79, 52 N.W.2d 605, 608, as follows:
'* * * in the final analysis legislative intent as expressed in the act must remain the guiding star.'
Did the legislature, in enacting P.A.1949, No. 311, intend to repeal existing statutory provisions for the 23-man grand jury? The act does not say so in express language but, on the contrary, the title and section 1 expressly state that the act is for the purpose of amending sections of the criminal code which relate solely to the so-called one-man grand jury. To read into the act an intent to abolish the 23-man grand jury and to repeal the sections providing therefor is to give it a purpose and effect other and different than expressly stated therein.
Are the statutory provisions for a 23-man grand jury repugnant to and incapable of standing together with those of Act 311? The history of legislation in this field indicates a negative answer. The 23-man (not less than 16 nor more than 23--see People v. Lauder, 82 Mich. 109, 46 N.W. 956, and statutes therein cited) grand jury existed under Revised Statutes of 1846, c. 164. P.A.1859, No. 138, provided for the first time for criminal prosecutions based upon informations, to be conducted in the same manner as in cases of like prosecutions upon indictments, but section 7 thereof provided for continued drawing of grand juries when directed by the court. Thus the two methods of initiating criminal prosecutions stood side by side within the framework of Michigan law, equally available and with no apparent incompatibility. In 1917 the two were joined by a third, the so-called one-man grand jury, provided by P.A.1917, No. 196. No repugnancy was evidence between them. That this was the legislative view is manifest from the fact that in the adoption of the code of criminal procedure, P.A.1927, No. 75, C.L.1948, § 760.1 et seq.; Stat.Ann. § 28.841 et seq. the three methods were retained (see Chapter 7, sections 1 and 2, relating to informations, sections 3 to 6, to one-man grand juries, and sections 7 to 23, to 23-man grand juries). Clearly, the legislature discerned no inability of the three methods to stand together. Defendants stress the many claimed advantages of the one-man grand jury over the old 23-man method in increased efficiency and effectiveness as being persuasive of a legislative intent to abolish the old method. The answer is that, after providing for the one-man grand jury in 1917, the legislature, nevertheless, in adopting the criminal code of 1927, preserved both.
In support of their claim that Act 311 was intended by the legislature to occupy the field exclusively defendants stress the fact that it contained numerous provisions designed to correct abuses which had sprung up in grand jury operations. They say that such abuses could be indulged in connection with the 23-man as well as with the one-man grand jury. Act 311, expressly amending provisions relating to the one-man grand jury but making no mention of the 23-man grand jury, discloses a different view. Courts need not be blind to the fact that certain practices in the operation of one-man grand juries had incurred legislative displeasure and prompted the enactment of Act 311. As defendants point out, the 23-man grand jury had been employed but seldom. Nowhere does it appear that it had incurred any legislative disfavor. We can only conclude that the legislature, in adopting the act, intended precisely what is indicated by its language limiting its scope to amendment of provisions relating to one-man grand juries. There was no repeal by implication.
The indictment charged that defendants conspired with one Edrington to violate C.L.1948, § 487.79, Stat.Ann. § 23.829, by agreeing that defendant Pichitino, as president of a state bank, should receive a consideration from Edrington in return for which the latter was to procure a loan from the bank. Defendants say...
To continue reading
Request your trial
-
Moe, Matter of
...Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979); Piracci v. State, 207 Md. 499, 115 A.2d 262 (1955); People v. Pichitino, 337 Mich. 90, 59 N.W.2d 100 (1953), cert. denied, 347 U.S. 913, 74 S.Ct. 477, 98 L.Ed. 1069 (1954); State ex rel. Clagett v. James, 327 S.W.2d 278 (Mo.1959......
-
People v. Pickett
...Mich. 266, 20 N.W.2d 185; People v. DeLano, 318 Mich. 557, 28 N.W.2d 909; People v. Simms, 322 Mich. 362, 34 N.W.2d 1; People v. Pichitino, 337 Mich. 90, 59 N.W.2d 100, certiorari denied, Pichitino v. State of Michigan, 347 U.S. 913, 74 S.Ct. 477, 98 L.Ed.----. What was said in these cases ......
-
People v. Wimberly
...provision of the 'one man grand jury' statute' in any way justifies the abandonment of our decisions of the past, People v. Pichitino (1953), 337 Mich 90, 59 N.W.2d 100; and in that regard call attention to the following from defendant Calvin Wimberly's 'Appellee is not unmindful of People ......
-
People v. O'Neal
...185; People v. DeLano (1947), 318 Mich. 557, 28 N.W.2d 909; People v. Simms (1948), 322 Mich. 362, 34 N.W.2d 1; People v. Pichitino (1953), 337 Mich. 90, 59 N.W.2d 100, certiorari denied (1954), 347 U.S. 913, 74 S.Ct. 477, 98 L.Ed. (1069). What was said in these cases is applicable here and......