People v. Pickett

• Decision Date: 05 April 1954
• Docket Number: No. 62,62
• Citation: 45 A.L.R.2d 1341,63 N.W.2d 681,339 Mich. 294
• Parties: , 45 A.L.R.2d 1341 PEOPLE v. PICKETT et al.
• Court: Michigan Supreme Court

Page 681

63 N.W.2d 681

339 Mich. 294, 45 A.L.R.2d 1341

PEOPLE v. PICKETT et al.

No. 62.

Supreme Court of Michigan.

April 5, 1954.

Frank Millard, Atty. Gen., Edmund Shepherd, Sol. Gen., Lansing, Chester R. Schwesinger, Pros. Atty., and Albert H. Callahan, Asst. Pros. Atty., Flint, for plaintiff and appellee.

Cline & George, Flint, for defendants and appellants Henry R. Pickett, Richard L. Kirby, and Edward Reinke.

Frank C. Smith, Flint, for defendant Harold Wirsing.

Before the Entire Bench.

BUSHNELL, Justice.

Upon the complaint of the prosecuting attorney for a judicial investigation concerning certain criminal offenses, the Honorable Karl K. Leibrand, circuit judge of Bay county, as acting judge of the circuit court for the county of Genesee, conducted an inquiry under the provisions of C.L.1948, § 767.3 et seq., Stat.Ann. § 28.943 et seq. As a result of that inquiry a warrant was issued for the arrest of defendants Henry R. Pickett, Richard L. Kirby, Harold Wirsing and Edward R. Reinke (the latter now deceased) and 23 other persons, on the charge that they:

'did feloniously and unlawfully conspire, confederate, combine and agree together, with each other, and with divers other persons unknown, to violate sections 301, 302, 303, 304 and 305 of Act 328 of the Public Acts of Michigan for the year 1931, as amended, the same being provisions of the Michigan Criminal Code prohibiting gambling, betting, taking of bets, the possession of gambling equipment, and the using or permitting the use of premises for gambling purposes by, among other things, taking, receiving and accepting bets upon the outcome of horse races, and keeping or maintaining places where bets upon the outcome of horse races were accepted.'

Those charged were admitted to bail and at an examination held before the Honorable Shirley Stewart, circuit judge of St. Clair county, acting in Genesee county, the defendants were represented by counsel and the people's witnesses were cross-examined. Motions to dismiss on the grounds of insufficiency of the prosecutor's petition and the claimed unlawful delegation of authority from Honorable Paul V. Gadola, circuit judge of Genesee county, to Judge Leibrand was granted by Honorable H. Russell Holland, circuit judge of Oakland county, acting in Genesee county, on the ground of unlawful delegation of authority.

On appeal this Court held against the defendants and reversed Judge Holland. See People v. Birch, 329 Mich. 38, 44 N.W.2d 859. Following the disposal of other interlocutory matters in which the Honorable John J. Simpson, circuit judge of Jackson county, and other circuit judges participated, trial was commenced on information before Honorable Herman J. Dehnke, circuit judge of Alcona, Iosco and Oscoda counties, sitting as a judge of the circuit court of Genesee county. Upon leave granted, Pickett and three other defendants have appealed from their conviction and sentence.

The 22 questions presented in this appeal have been considered. Some are the usual propositions raised in criminal appeals, but others are of unusual nature and merit extended discussion.

The first of these has to do with the claimed invalidity of the method of preparing the jury list in the city of Flint and the contention that this method is contrary to law. Several days before the trial commenced, a challenge to the array was filed, supported by the affidavit of William J. Kane, attorney for some of the defendants. This motion was denied.

The general statutory enactment respecting the preparation of jury lists is C.L.1948, § 602.120, Stat.Ann. § 27.245, which reads in part 'The supervisor and township clerk of each township, and the supervisor or assessor, as the case may be, and alderman of each ward or assessment district in any city, shall, at the time appointed by law for the review of the assessment roll for each year, make a list of persons to serve as petit jurors, and a list of persons to serve as grand jurors for the ensuing year'.

It is argues that the provisions of the charter and the ordinance of the city of Flint, under which the city assessor is required to compile and return a jury list, is in contravention of the statute and, therefore, should be held invalid.

The present method of providing a jury list for the city of Flint has been in use since 1935. The duties of the city assessor are specified in section 29 of the city charter which states:

'He shall perform such other duties as may be required by this charter or by ordinance.'

This provision is enlarged by ordinance No. 44, § 6.300, which reads:

'In addition to those duties heretofore specified, either by charter of the city of Flint or by ordinance thereof, the city assessor is hereby required from time to time to make lists of persons to serve as either grand or petition jurors from the city of Flint for the circuit court of the county of Genesee, Michigan, and to return the same as directed by law.'

Flint is a Home Rule city organized pursuant to Act No. 279, P.A. 1909, as amended. C.L.1948, § 117.1 et seq., Stat.Ann.1949 Rev. § 5.2071 et seq.

It must be noted at the outset that the method used in Flint is not expressly provided for by the statute governing the preparation of jury lists. Flint has a commission form of government, although not a true form with respect to the jury law which contemplates a one-ward city. See C.L.1948, § 602.125, Stat.Ann.1953 Supp. § 27.250. The charter of the city of Flint provides for only one assessor, who is a duly constituted city officer. Its municipal area is divided into 9 wards, and it has no aldermen. However, a commissioner is elected from each ward, but none of them have assessing powers. We can see no valid reason why the single assessing officer, in compiling jury lists where only one such officer is provided by the charter, acts in contravention with the general jury statute which mentions 'aldermen of each ward or assessment district.' On the contrary, the method in force is in substantial conformity with the statute as far as possible under the existing governmental structure.

In Hewitt v. Saginaw Circuit Judge, 1888, 71 Mich. 287, 39 N.W. 56, 58, some years before the home rule act came into existence, Chief Justice Sherwood made an observation which seems applicable to the situation here. In speaking for the court he said:

'It may be well contended that the statute invoked by respondent was never intended to apply to a city whose chartered provisions are like those contained in the East Saginaw charter. By that charter the assessor is a city officer, and assesses all the property of the city, and comes more or less in contact with all persons therein having the qualifications of jurors; while in cities incorporated under the general law the person assessing is but a ward officer, not acting beyond the limits of his ward'.

Numerous cases are cited involving the priority of State statutes over local ordinances when a conflict exists. Among these is Noey v. City of Saginaw, 271 Mich. 595, 261 N.W. 88, 89, in which it was held that cities organized under the home rule act are subject to legislative control. That case involved a conflict between the statute and ordinance in regard to hours of closing places for the sale of alcoholic liquor. The court there said:

"It is the rule that, in the absence of specific statutory or charter power in the municipality, the provisions of an ordinance which contravene a state law are void. People v. McGraw, 184 Mich. 233, 150 N.W. 836, 43 C.J. p. 215."

The situation in the instant case is somewhat different. It is not so much whether there are conflicting provisions, but rather whether there is a compliance within the purport and meaning of the statute. The charter, in empowering the assessor to 'perform such other duties as may be required by this charter or by ordinance,' also imposes upon him the duty of compiling and returning the jury list as required by law. The record before us discloses that substantial compliance has been attained as far as is practically possible. We are therefore constrained to hold that, even though it may be argued that better practice would dictate that the assistance of the several commissioners should be obtained in the preparation of a jury list, the compilation of that list by the city assessor, unaided by the commissioners, is valid.

The second serious question in this appeal is the claim that the admission of the prior testimony of the State's witness, Wilber Arney, was in violation of appellants' right of confrontation and of due process as guaranteed by the 6th and 14th Amendments to the United States Constitution and by article 2, section 19, of the Michigan Constitution (1908), as well as contrary to the provisions of C.L.1948, § 763.1, Stat.Ann. § 28.854, and C.L.1948, § 617.59, Stat.Ann. § 27.908.

The Michigan constitutional provision on the right of confrontation reads in part:

'Sec. 19. In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury, * * * to be confronted with the witnesses against him; * * *.'

C.L.1948, § 617.59, provides:

'Any competent witness in a cause shall not be excused from answering a question relevant to the matter in issue, on the ground merely that the answer to such question may establish, or tend to establish, that such witness owes a debt, or is otherwise subject to a civil suit; but this provision shall not be construed to require a witness to give any answer which will have a tendency to accuse himself of any crime or misdemeanor, or to expose him to any penalty or forfeiture, nor in any respect to vary or alter any other rule respecting the examination of witnesses.'

Section 763.1 reads:

'On the trial of every indictment or other criminal accusation, the party accused shall be allowed to be heard by counsel and may defendant himself, and he shall have a right to produce witnesses and proofs in his favor, and...