People v. Price

• Decision Date: 22 May 1970
• Docket Number: Docket No. 4942,No. 1,1
• Citation: 179 N.W.2d 177,23 Mich.App. 663
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. William PRICE, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 177

179 N.W.2d 177

23 Mich.App. 663

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. William PRICE, Defendant-Appellee.

Docket No. 4942.

Court of Appeals of Michigan, Division No. 1.

May 22, 1970.

Released for Publication Sept. 11, 1970.

James T. Lafferty, Detroit, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Angelo A. Pentolino, Asst. Atty. Gen., for defendant-appellee.

Before FITZGERALD, P.J., and McGREGOR and V. J. BRENNAN, JJ.

V. J. BRENNAN, Judge.

This is an appeal by leave and at the instance of the people from a habeas corpus release. Combined in the alternative with the appeal is an application for an order of superintending control. The defendant and petitioner below, William Price, is on personal bond pending the outcome.

The events preceding the release are summarized as follows:

In July, 1961, the defendant, then 16-years-old, was charged with larceny from the person. ¹ Jurisdiction was waived by the juvenile court and trial in the recorder's court of the city of Detroit in September, 1961, resulted in a verdict of guilty as charged. The defendant was sentenced to a term of 1 to 10 years in Jackson prison, a term later enhanced by an escape conviction.

In the fall of 1967, while still an inmate of Jackson prison, the defendant filed a motion for new trial in the recorder's court, claiming among other things that his larceny conviction was void for the want of representation by counsel at the juvenile waiver hearing. In re Gault (1967), 387 U.S. 1, 87 S.Ct. 1428; 18 L.Ed.2d 527, decided in May, 1967, was said to require counsel's presence at such a hearing, even though Gault was limited on its facts to a delinquency proceeding. A hearing on the motion was held before recorder's court judge George W. Crockett, Jr. on December 15, 1967. Agreeing that Gault was applicable to waiver hearings, the court ruled that Gault was retroactive, that the waiver of the juvenile court was invalid, and that the recorder's court consequently never acquired jurisdiction over the defendant to try him for larceny. Treating defendant's motion as a petition for writ of habeas corpus, Judge Crockett ordered the defendant's release.

The defendant's principal contention in opposition to this appeal is that review of a habeas corpus release is simply not open to the people. Before turning to this question, we note that under the present case law of this case, Judge Crockett was in error on the merits of the release. In People v. Terpening (1969), 16 Mich.App. 104, 167 N.W.2d 899, decided some 14 months after the defendant's release, this Court held that even if Gault is applicable to a juvenile waiver hearing, it is not retroactive as applied to such hearings, and therefore a waiver hearing conducted before Gault does not require the presence of counsel.

The defendant's principal contention is founded on both statute and case law. M.C.L.A. § 770.12 (Stat.Ann. 1954 Rev. § 28.1109), enacted in derogation of the common law rule barring any and all appeals by the people in criminal cases, permits review at the instance of the people by a writ of error (modernly, an appeal), but only under certain narrow circumstances. None of the circumstances enumerated in the statute are present here. People v. Conant (1886), 59 Mich. 565, 26 N.W. 768, and People v. Fairman (1886), 59 Mich. 568, 26 N.W. 769, also cited by defendant, are even more conclusively in his favor. They flatly hold that a writ of error from a habeas corpus release is not available to the people.

The people acknowledge these limitations on appellate review but contend that review is open under our broad power of superintending control, a power granted this Court to afford a remedy where one is otherwise unavailable. We feel, as various authorities have stated, that this is a broad power and can be used whenever this Court or the Supreme Court sees fit to properly use it; especially where it becomes necessary to 'insure the harmonious working of our judicial system,' quoting from Chief Justice Dethmers' opinion in In re Huff (1958), 352 Mich. 402, 417, 418, 91 N.W.2d 613, 620. Continuing, the Court went on to say,

'The power of superintending control is an extraordinary power. It is hampered by no specific rules or means for its exercise. It is so general and comprehensive that its complete and full extent and use have practically hitherto not been fully and completely known and exemplified. It is unlimited, being bounded only by the exigencies which call for its exercise. As new instances of these occur, it will be found able to cope with them. Moreover, if required, the tribunals having authority to exercise it will, by virtue of it, possess the power to invent, frame, and formulate new and additional means, writs, and processes whereby it may be exerted. This power is not limited by forms or procedure or by the writ used for its exercise. Furthermore, it is directed primarily to inferior tribunals, and its relation to litigants is only incidental.'

Also, see, generally, Committee Comment, GCR 1963, 711.1, 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), p. 41.

We therefore inquire into the jurisdiction of the recorder's court to entertain a question on habeas corpus in the first place; that is, whether habeas corpus was a proper and available method for review of the error claimed by defendant. Our authority to entertain this question, along with our authority to exercise superintending control and order the vacation of the release order if habeas corpus is found to be an improper method, of review, stems not only from In re Huff, Supra, but also from Hamilton's Case (1883) 51 Mich. 174, 16 N.W. 327. In Hamilton, a defendant convicted and imprisoned by a justice of the peace for the failure to pay a liquor tax was released on habeas corpus by the Ionia circuit court. The record of conviction failed to show the commission of any offense, apparently because of technical errors. The Supreme Court granted a writ of certiorari, concluded that a habeas corpus was improper irrespective of whether error was committed by the justice of the peace, and vacated the order releasing the defendant. It was said in part (per Cooley, J., at 175, 176, 16 N.W. at 327):

'The discharge necessarily assumed that the record of conviction failed to show the commission of any offense. This conclusion was reached apparently upon a somewhat critical and technical examination of the commitment, and we are not satisfied that the criticism was not overnice. But the point is not very material, as it is plain that technical defects are now reviewable on this process.

'If the warrant showed a conviction without jurisdiction, habeas corpus would be the proper remedy; but when the defects are mere irregularities the party must seek redress in some of the modes provided by statute for review by some appellate tribunal. The circuit judge of the Ionia circuit is not an appellate tribunal in respect to proceedings which take place before justices of the peace of the county of Schoolcraft, and in exercising authority by the writ of habeas corpus he is commissioner merely, and what he may do, the circuit court commissioner of the county may claim the right to do also. Nor would the authority be limited to convictions by justices of the peace, but the circuit court commissioner might in the same way assume to review the judgments and sentences of the circuit courts, and we might witness the spectacle of these inferior officers sitting as judges of review upon the action and judgments of courts of general jurisdiction. A sense of propriety might restrain such action, But we cannot fail to perceive what possibilities are involved in sustaining this discharge. An appellate court may no doubt make use of the writ as one means of exercising its supervisory power, but it is not to be employed as a writ of error by tribunals not possessing the appellate authority.' (Emphasis added) See, also, Ellis v. Daboll, (1892), 90 Mich. 272, 51 N.W. 280 and In re Brock (1906), 144 Mich. 42, 43, 107 N.W. 446.

We now turn to the question whether habeas corpus was a proper method of review in the instant case.

Section 4310(3) of the habeas corpus statute ² prohibits a habeas action by or on the behalf of 'persons convicted, or in...