People v. Rich

Citation237 Mich. 481,212 N.W. 105
Decision Date04 February 1927
Docket NumberNo. 122.,122.
PartiesPEOPLE v. RICH.
CourtSupreme Court of Michigan

OPINION TEXT STARTS HERE

Error to Circuit Court, Ingham County; Charles B. Collingwood, Judge.

Arthur Rich was convicted of common-law rape, and he brings error. Affirmed by divided court.

Argued before the Entire Bench.W. J. Barnard, of Paw Paw, and Bernard J. Onen, of Battle Creek, for appellant.

Andrew Dougherty, Atty. Gen., O. L. Smith, Former Asst. Atty. Gen., of Detroit, Clyde C. Cortright, Pros. Atty., of Marshall, and Andrew W. Lockton, Former Asst. Pros. Atty., of Battle Creek, for the People.

FELLOWS, J.

Defendant was informed against in the Calhoun circuit court, charged with common-law rape. The facts briefly stated are these: Defendant, a young man 21 years old, and the prosecutrix, Louise King, a young lady student at the Battle Creek College, aged about 19 years, in company with another young couple, Mr. Baker and Miss Reasoner, on the evening of May 25, 1925, drove out to the grounds of the Country Club at Goguac Lake near Battle Creek in defendant's car. When they reached a point in the drive, spoken of in the record as the ‘turn around,’ defendant and prosecutrix got out of the car. The prosecutrix claims defendant said he wanted to show her where he had made a remarkable shot in golf. Mr. Baker and Miss Reasoner remained in the car. The distance defendant and prosecutrix went from the car is in dispute, defendant fixing it at a short distance and prosecutrix fixing it at from 350 to 500 feet. It is the claim of prosecutrix that defendant attacked her, beat her into insensibility, and accomplished his purpose by force and against her will. Defendant admits the act of intercourse, but insists that it was with the consent of the prosecutrix. It will not be necessary to detail subsequent events that evening, and it will suffice to state that the party returned to Battle Creek, defendant stated to friends of prosecutrix where she was living that she was intoxicated, and some of them accompanied the party in a drive taken for the purpose of resuscitating prosecutrix; she was returned to Battle Creek, and during the night medical aid was summoned. The testimony established beyond doubt that from some source prosecutrix had received a most serious injury; her jaw was fractured, and she was semiconscious for many hours.

Defendant made a motion for change of venue from Calhoun county, and filed affidavits in support thereof. This motion was opposed by the prosecuting attorney, and counter affidavits were filed. These affidavits do not appear in the record, although the argument in this court proceeded on the theory that they were of similar purport to those filed in the Ingham circuit on a similar motion, and which later affidavits are before us. The motion for a change of venue was denied, and a trial was had in Calhoun county resulting in a disagreement of the jury. The prosecuting attorney then made a motion for a change of venue which was granted and the case transferred to Ingham county over objection of defendant. Defendant sought a change of venue from Ingham county, after the case had reached that county, but this request was refused, and a trial was there had resulting in a verdict of guilty, followed by a life sentence. The case is before us on writ of error, with a record of 1,199 pages and upon 198 assignments of error.

Much of defendant's brief is devoted to the question of change of venue, and it is insisted that section 10 of Act No. 157, Laws of 1851, as amended (section 14563, C. L. 1915), in so far as it permits a change of venue in criminal cases on application of the people, offends both the state and federal Constitutions, and it is urged that, taking into consideration all of the opinions in the case of Glinnan v. Judge of Recorder's Court, 173 Mich. 674, 140 N. W. 87, it was so held in that case. While it is doubtless true that the Glinnan Case does modify the case of Lyle v. Cass Circuit Judge, 157 Mich. 33, 121 N. W. 306, it does not in any way modify the holding in People v. Peterson, 93 Mich. 27, 52 N. W. 1039, and People v. Fuhrmann, 103 Mich. 593, 61 N. W. 865. So far as the state Constitution is concerned, it must be held that the Peterson, Fuhrmann, and Glinnan Cases settle the constitutionality of this legislation, and long ago, in Gut v. State, 9 Wall. 35, 19 L. Ed. 573, it was settled by the Supreme Court of the United States that such legislation by a state presented no federal question. It was there said by Mr. Justice Field, speaking for the court:

‘Undoubtedly the provision securing to the accused a public trial within the county or district in which the offense is committed is of the highest importance. It prevents the possibility of sending him for trial to a remote district, at a distance from friends, among strangers, and perhaps parties animated by prejudices of a personal or partisan character; but its enforcement in cases arising under state laws is not a matter within the jurisdiction of the federal courts.’

It must be held that this legislation offends neither the state nor the federal Constitutions. We do not overlook State v. Gossett, 117 S. C. 76, 108 S. E. 290, 16 A. L. R. 1299, upon which much reliance is placed by defendant's counsel. The opinion in that case is both forceful and able. But entirely different legislation was there before the court than is here involved. Under the act there before the court, the solicitor of the circuit was empowered, without any showing, to apply to the Governor to call a special term of court; the Governor was required to call such special term; and the Chief Justice was required to designate a disengaged circuit judge to hold the term. Under the act, the Governor and Chief Justice were but automatons in the hands of the solicitor. It was held that the legislation was invalid, and it was pointed out wherein it differed from former legislation, which permitted the courts to function in the discharge of judicial duties in their proper sphere. Here, while the motion is made by the prosecuting attorney, the court in the discharge of its judicial functions determines as a judicial question whether the motion shall be granted or denied, and the change is made by, and only by, an order of the court. The cases are clearly distinguishable.

But it is insisted the section is no longer in force. When the Judicature Act was passed, the provision stood as section 309, C. L. 1897, being section 10 of chapter 25 of that compilation, although it had been amended. By the Judicature Act (section 14465, C. L. 1915), chapter 25, ‘with the exception of section 309,’ was repealed. It is the contention of defendant's counsel that, if the Legislature desired to save this section, it should have re-enacted it under the provisions of section 21, art. 5, of the Constitution, which reads:

‘No law shall be revised, altered or amended by reference to its title only; but the act revised and the section or sections of the act altered or amended shall be re-enacted and published at length.’

But this section was neither revised, altered, or amended. It was left to stand as it then was. Manifestly this section of the Constitution does not require the Legislature to re-enact laws it determines shall be left as they are.

It is next urged that the showing for a change of venue was insufficient, and that the order made was an abuse of discretion. The affidavit of the prosecuting attorney, which accompanied the petition for change of venue, standing alone, was not sufficient to authorize the order; the ground alleged being that a fair and impartial trial could not be had in Calhoun county ‘without great expense to the people of Calhoun county.’ The criminal laws must be enforced, and defendants charged with crime are entitled to a trial by a fair and impartial jury, notwithstanding great expense to the taxpayers is caused. But the trial judge had before him, not only this affidavit, but also the numerous affidavits filed by defendant himself on his motion for a change of venue. These affidavits, as I have already stated, are not before us. The trial judge had acquired judicial knowledge from the first trial whether difficulties were encountered in obtaining the jury on that trial and what occurred on that trial. People v. Swift, 172 Mich. 473, 138 N. W. 662. I do not think it can be said upon this record that he abused his discretion. But it is urged that the transfer should not have been made to Ingham county, that that county had a January term, and that there was undue haste in bringing on the second trial. But defendant was arrested May 29, one continuance had been granted by the Calhoun court, and there had been one trial. The order was made December 23, nearly seven months after his arrest. Defendant's claim that he was ‘railroaded’ is not under these facts sustained. After the transfer to Ingham county, defendant there moved for a change of venue, supported by over 200 affidavits. The people filed over 400 affidavits in opposition. These affidavits are before us in substance. They present, as does another motion based on some newspaper articles, questions to be determined in the sound judgment of the trial judge of Ingham county. We are not persuaded that there was an abuse of discretion in denying these motions.

An Assistant Attorney General appeared with the prosecuting attorney to participate in the trial on behalf of the people. Such appearance and participation were objected to, and error is assigned on the overruling of such objection. The objection was not well taken. In speaking of the power of the Attorney General, it is said in 2 R. C. L. 927:

‘In the conduct of criminal proceedings he possesses all the powers of a prosecuting attorney, including those of appearing before the grand jury, signing indictments, and of either pursuing cases to a final determination or of entering a nolle prosequi therein, in which latter respect his power is frequently...

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  • 1998 -NMCA- 18, State v. House
    • United States
    • Court of Appeals of New Mexico
    • 20 Noviembre 1997
    ...Taos County community, he took note of his prior experiences presiding over trials and hearings in Taos County. Cf. People v. Rich, 237 Mich. 481, 212 N.W. 105, 106 (1927) (trial judge may rely on judicial knowledge acquired from first trial in determining to grant state's motion for change......
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    ...2799896, p. 17.6 More nebulous precedents include Lyle v. Cass Circuit Judge , 157 Mich. 33, 121 N.W. 306 (1909), and People v. Rich , 237 Mich. 481, 212 N.W. 105 (1927). In Lyle , the trial court denied a motion for a change of venue and the relator filed a mandamus action in this Court to......
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    ...these helpful precepts of the nineteen-twenties as the year 1961 plunges into time. As said by Mr. Justice Fellows in People v. Rich, 237 Mich. 481, 497, 212 N.W. 105, 110: 'We are not only deciding this case, but we are also laying down rules for the guidance of the judiciary and the profe......
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    ...While the Opinion in the Green case cited no authority for the Court's position, such authority does exist. In People v. Rich, 237 Mich. 481, 212 N.W. 105, 107, the Michigan Supreme Court 'After the defendant had exhausted his peremptory challenges, the prosecution was permitted to exercise......
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