People v. Riley, Docket No. 22610

• Decision Date: 22 November 1976
• Docket Number: Docket No. 22610
• Citation: 72 Mich.App. 299,249 N.W.2d 397
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter L. (X) RILEY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 397

249 N.W.2d 397

72 Mich.App. 299

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter L. (X) RILEY, Defendant-Appellant.

Docket No. 22610.

Court of Appeals of Michigan.

Nov. 22, 1976.

Released for Publication Jan. 27, 1977.

Birch & Dean by Phillip C. Dean, East Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce A. Barton, Pros. Atty., for plaintiff-appellee.

Before ALLEN, P.J., and D. E. HOLBROOK, Jr. and PAPP, ^* JJ.

D. E. HOLBROOK, Jr., Judge.

Defendant appeals as of right from his conviction for unauthorized possession of a weapon while in prison. M.C.L.A. § 800.283; M.S.A. § 28.1623. Two questions are presented for our consideration: (1) Whether a criminal complaint, that is dismissed for failure to comply with the provisions of M.C.L.A. § 766.4; M.S.A. § 28.922, may be reinstituted by the filing of a second complaint charging the same offense, and (2) Whether the defendant was denied a fair trial because he was seen by certain members of the jury being brought into the courtroom while in physical restraint.

M.C.L.A. § 766.4; M.S.A. § 28.922 provides as follows:

'The magistrate before whom any person is brought on a charge of having committed an offense not cognizable by the court before which he is brought shall set a day for examination not exceeding 12 days thereafter, at which time the court shall examine the complainant and the witnesses in support of the prosecution, on oath in the presence of the prisoner, in regard to the offense charged and in regard to any other matters connected with such charge which the court considers pertinent.'

The pertinent facts as they relate to defendant's first issue are that defendant was initially arraigned on March 5, 1974, upon the charge for which he was subsequently found guilty, with preliminary examination being set for March 14, 1974. The examination date was then adjourned by someone in the clerk's office upon the request of the prosecutor with no notice to the defendant, without stipulation or the filing of a formal motion. As a result the examining magistrate granted defense counsel's motion to dismiss the complaint and warrant on March 21, 1974, which was the adjourned preliminary examination date. At that time, the examining magistrate indicated that the granting of said motion was without prejudice. Subsequent thereto the prosecutor reissued a complaint and warrant relating to the same charge. Defendant was arraigned on this complaint on April 2, 1974, before a different judge and preliminary examination was set for April 11, 1974. At the request of defendant said examination was adjourned to April 17, 1974. Defendant's motion to quash the reissuance of the warrant and complaint was denied by the examining magistrate and defendant was bound over for trial which commenced on September 9, 1974, in the Jackson County Circuit Court. Defendant's motion was again raised and denied.

Defendant argues that the examining magistrate's dismissal of the original warrant and complaint was res judicata and that the prosecutor had no authority to reinstate the original charges by issuing a subsequent warrant and complaint. We disagree.

In People v. Panknin, 4 Mich.App. 19, 143 N.W.2d 806 (1966), this Court held that a discharge of the defendant by an examining magistrate on preliminary examination was not a bar to further prosecution for the same offense, because the preliminary examination did not place the defendant in jeopardy. Panknin, in our opinion, is still good law. Nor is defendant's assertion that the...