People v. Powers, 108.

• Decision Date: 19 June 1935
• Docket Number: No. 108.,108.
• Citation: 261 N.W. 543,272 Mich. 303
• Parties: PEOPLE v. POWERS.
• Court: Michigan Supreme Court

272 Mich. 303

261 N.W. 543

PEOPLE

v.POWERS.

No. 108.

Supreme Court of Michigan.

June 19, 1935.

Clare Powers was convicted of receiving stolen property, and he appeals.

Affirmed.

Appeal from Circuit Court, Eaton County; Russell R. McPeek, judge.

Argued before the Entire Bench.

George W. Watson, of Charlotte, for appellant.

John L. Wright, Pros. Atty., of Charlotte, for the People.

NELSON SHARPE, Justice.

On complaint made before a justice of the peace of the city of Charlotte, the defendant was charged in the first count with receiving stolen property, to wit, a pony of the value of less than $50, and in the second count with the larceny of the pony. On trial before a jury on February 15, 1934, a general verdict of guilty was rendered, and he was sentenced thereon. An appeal was taken therefrom to the circuit court, after which the defendant filed a motion therein, asking that the records and files be remanded to the justice with instructions to dismiss the cause and discharge the defendant, for the reason that the verdict rendered was void, conviction having been had on both counts. This motion was denied.

A trial was thereupon had in the circuit court, and the defendant convicted by the jury of larceny. A motion for a new trial was granted, and on a retrial, the jury, on June 29, 1934, convicted the defendant of receiving stolen property.

On July 6, 1934, the defendant moved to quash the count charging him with receiving stolen property for the reason that his conviction of larceny was an acquittal of that charge, and that he could not be afterwards tried and convicted of that offense. This motion was denied, and defendant sentenced. Application for leave to appeal to this court was granted and defendant admitted to bail pending the hearing thereof.

1. It is claimed that the verdict of the jury in justice's court was void, and that the court erred in denying the motion for remand to that court with instructions to discharge the defendant. This motion was made after a general appeal had been taken.

The justice of the peace acquired jurisdiction over the offenses set forth in the complaint by force of the statutes relating thereto, and of the person of the defendant by reason of his arrest. Larceny and receiving stolen property are separate and distinct offenses. The justice should not have accepted the general verdict of guilty rendered by the jury. The sentence imposed thereon was void and unenforceable. The defendant, however, had a right to appeal therefrom to relieve himself from the ignominy incident to the verdict, and, when he did so, he conferred jurisdiction upon the circuit court to try the case anew and render judgment thereon as provided for in the statute. See People v. Underwood, 209 Mich. 348, 176 N. W. 568, and quotation therein from Tiffany's Criminal Law; State v. Olsen, 180 Iowa, 97, 162 N. W. 781; 16 C. J. p. 370.

2. Under the decisions of this court, where a defendant is charged with distinct offenses in separate counts, a conviction on one of the counts works an acquittal on the others. People v. Gessinger, 238 Mich. 625, 214 N. W. 184. The conviction of the defendant on the first trial in the circuit court of larceny must be treated as an acquittal of the charge of receiving stolen property. The trial court so found, but was of the opinion that by his failure to raise the question either by plea or motion, or by calling the court's attention to it in any way before conviction, he had waived his right to claim the benefit of it.

The record contains the proceedings had upon the second trial. Testimony tending to prove the defendant guilty of receiving the pony, knowing it to have been stolen, was admitted without objection. No requests to charge were submitted by defendant's counsel. While the record does not contain the instructions of the court to the jury, it can but be assumed that both counts were submitted to them with direction to state the count on which he was convicted if the jury found him guilty.

Our Constitution provides (article 2, § 14): ‘No person, after acquittal upon the merits, shall be tried for the same offense. * * *’

The Federal Constitution provides (Amendment 5): ‘* * * nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb. * * *’

In Re Ascher, 130 Mich. 540, 545, 90 N. W. 418, 420,57 L. R. A. 806, after quoting the provision in our State Constitution, it was said: ‘While this language differs from that used in the United States constitution, the law of jeopardy is doubtless the same under both provisions.’

A person is in jeopardy when he is put upon trial in a court of justice charged with a violation of law.

The language in the Constitutions of most of the states is similar to that in the Federal Constitution. In Massachusetts, the protection is provided for in its General Laws. The provision is similar in effect to that in our State Constitution.

In an annotation in L. R. A. 1917A, 1233, the ‘manner and time of raising defense of former jeopardy’ is dealt with at some length.

‘The general rule is that the issue of former conviction, acquittal, or other jeopardy must be raised by special plea.’

Cases from a number of state courts are cited in support thereof.

As to the time when the issue must be raised, the annotator says: ‘As a general rule, the issue of former acquittal, conviction,or other jeopardy should be raised before going to trial on the general issue, assuming that it cannot be tried under the general issue, and practically all courts hold that it must be raised at that stage of the trial, unless there are circumstances that make it inappropriate at that time and appropriate at another time,’ and...