People v. Schrader, Docket No. 1998

• Decision Date: 25 March 1968
• Docket Number: No. 1,Docket No. 1998,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William SCHRADER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 147

159 N.W.2d 147

10 Mich.App. 211

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

Docket No. 1998.

Court of Appeals of Michigan, Division No. 1.

March 25, 1968.

Released for Publication June 18, 1968.

Kenneth A. Webb, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Luvenia D. Dockett, Asst. Pros. Atty., Wayne County, Detroit, for plaintiff-appellee.

Before LESINSKI, C.J., and FITZGERALD and McGREGOR, JJ.

FITZGERALD, Judge.

Defendant, convicted by a jury in recorder's court for the city of Detroit of the offenses of robbery armed ¹ and carrying a concealed weapon, ² appeals to this Court on various grounds involving his arrest, incarceration, arraignment and trial. The multitudinous issues will be considered Seriatim.

The facts, as set out by defendant, are as follows:

Testimony on behalf of the people was introduced to the effect that on May 11, 1965, at about 12:15 a.m., 2 men entered a Detroit restaurant, one of them holding a pistol. They demanded that the waitress, Velva Jean Swain, give them money, and she complied. The same demand was made of a customer, Jesse Alford, and he likewise complied.

Defendant and 2 others (the third being the alleged getaway car driver) were arrested shortly after the robbery occurred. At the time of the arrest, a pistol was found under the front seat of the car in which the trio was discovered.

In the early morning hours, a series of lineups were conducted for various persons who were in or near the restaurant at the time of the robbery. The defendant was not represented by an attorney during the lineup and 2 witnesses identified defendant Schrader as being one of the robbers.

The early portion of defendant's brief is devoted to a number of contentions regarding the lineup. Specifically, he states that he had no attorney, was not advised that he had a right not to submit to the lineup, that he was commanded to speak as a basis of identification, and was the only person in the lineup with a black eye.

Each of the issues raised by defendant are answered definitively in United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, where, in a not entirely disparate situation, the defendant was required to put an adhesive tape on his face, speak words allegedly uttered by the robber and perform actions similar to those required of defendant Schrader. In essence, the court held that this did not violate his privilege against self-incrimination. All of defendant's basic complaints about the conduct of the lineup are covered by Wade.

However, defendant's contention that he was disadvantaged by having no attorney at this 'critical stage' was upheld by the Supreme Court in Wade, but as stated by this Court in People v. Wilson (1967), 8 Mich.App. 651, 660, 155 N.W.2d 210, 215:

'Defendant in the present case is not to be given relief in reliance on the Wade decision. On the same day, June 12, 1967, the Supreme Court of the United States also decided in the case of Stovall v. Denno, 1967, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, that the Wade rule would not be given retroactive application.'

It was pointed out in Wilson, supra, that:

'This Court is now bound to consider the Supreme Court holding in Wade as being conclusive of the law on the issue of the presence of counsel at the lineup and the prospective application thereof as held in Stovall, supra.'

Defendant contends further that an unreasonable time elapsed between his arrest and arraignment but cites no applicable law for a situation where no confession is involved. In view of this Court's pronouncement relative to pre-arraignment waiting time in People v. Carlton (1966), 5 Mich.App. 20, 145 N.W.2d 853, which in turn relied heavily on People v. Hamilton (1960), 359 Mich. 410, 102 N.W.2d 738, utilizing appropriate quotations therefrom, we can see no merit in this allegation.

Defendant's contention regarding advice concerning right to counsel is answered by People v. Fordyce (1966), 378 Mich. 208, 144 N.W.2d 340. This conviction was prior to Miranda v. State of Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and advice regarding counsel prior to arraignment had not been yet established.

Defendant's many citations of error yield one meritorious point. He inquires:

'Did the trial court commit reversible error when it permitted the case with respect to carrying a concealed weapon to go to the jury when the record is barren of any evidence that defendant Schrader did not have a license to carry a concealed weapon at the time of the alleged offense?'

The statute (C.L.1948, § 750.227 (Stat.Ann. 1962 Rev. § 28.424)) under which defendant was prosecuted for this count reads as follows:

'Any person who shall carry a dagger, dirk, stiletto or other dangerous weapon except hunting knives adapted and carried as such, concealed on or about his person, or whether concealed or otherwise in any vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him; and any person who shall carry a pistol concealed on or about his person, or, whether concealed or otherwise, in any vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him, without a license to so carry said pistol as provided by law, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by fine of not more than $2,500 dollars.'

It will be noted that an essential element of this statute, as regards a pistol, is 'without a license to so carry said pistol as provided by law,' and this in turn is a matter of proof as to the lack of a license.

The sum total of proof offered by the people relative to this particular aspect of the charge is as follows, quoting from the transcript of the trial:

'ELEANOR BLASKOWSKI, sworn by the court clerk on behalf of the People, was examined and testified as follows:

'DIRECT EXAMINATION

'BY MR. LASTER:

'Q. What is your name?

'A. Eleanor Blaskowski.

'Q. And what is your occupation?

'A. Clerk 3 at the County Clerk's Office.

'Q. Wayne County...