People v. Simon

• Court: Michigan Supreme Court
• Writing for the Court: DETHMERS
• Citation: People v. Simon, 324 Mich. 450, 36 N.W.2d 734 (Mich. 1949)
• Decision Date: 11 April 1949
• Docket Number: No. 72.,72.
• Parties: PEOPLE v. SIMON.

324 Mich. 450

36 N.W.2d 734

PEOPLE

v.SIMON.

No. 72.

Supreme Court of Michigan.

April 11, 1949.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Guy A. Miller, judge.

Peter Simon was convicted of murder, and from an order vacating the conviction, quashing the information and discharging the defendant, the prosecution appeals.

Order reversed, sentence vacated, conviction set aside and cause remanded for new trial.

Before the Entire Bench.

Edmund E. Shepherd, Sol. Gen., State of Michigan, of Lansing, and James N. McNally, Pros. Atty. in and for Wayne County, Robert Newton Smiley, Asst. Pros. Atty. and Herbert Burdick, Asst. Pros. Atty., all of Detroit, for appellant and cross-appellee.

Frank P. Darin, of Wyandotte (Frank L. Amprim, of Wyandotte, of counsel), for appellee and cross-appellant.

DETHMERS, Justice.

Does the provision of the Fifth Amendment to the Constitution of the United States that ‘No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,’ apply to criminal prosecutions by states? That the Fifth Amendment did not apply to the states before the adoption of the 14th Amendment is clear. Barron v. Baltimore, 1833, 7 Pet. 243, 32 U.S. 243, 8 L.Ed. 672;Twitchell v. Pennsylvania, 1868, 7 Wall 321, 74 U.S. 321, 19 L.Ed. 223.

Does the 14th Amendment serve to make the quoted provision of the Fifth Amendment applicable to prosecutions by states for capital or infamous crimes? This was expressly answered in the negative by the Supreme Court of the United States in Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 292,28 L.Ed. 232. To date a majority of that court has not specifically answered it to the contrary. We recognize, with the trial court, that the Hurtado case is an old one, dating back to 1883, and are not unaware that a change has since taken place in the complexion of the United States Supreme Court; that four members of that court, as now constituted, have expressed a definite commitment to the proposition that all the provisions of the first eight Amendments are made applicable to the states by the 14th; and that, as would appear from language employed in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, 168 A.L.R. 1392, and McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 648, all the members take that view of the operation of the 14th Amendment as relates to the guaranty of religious freedom contained in the First Amendment. Although it is said in those two cases that the 14th Amendment makes the First Amendment apply to the states, the picture is confusing as relates to the guaranty of freedom of speech and of the press inasmuch as the majority of the court in cases passing on that precise question appear to hold that these are guaranteed by the due process clause of the 14th Amendment against state action only because such rights are fundamental personal rights and liberties inherent in due process, of which the provisions of the First Amendment are but declaratory, rather than because they are provided for in the First Amendment and, for that reason, made applicable to the states by the 14th. See Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138;Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155;Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357;Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093;Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1346. It may well be concluded that the view of the majority as relates to the guaranty of religious freedom is predicated on that same theory. If this conclusion be correct, it may be said that at no time has a majority of the United States Supreme Court subscribed to the theory that the 14th Amendment makes any of the first eight Amendments applicable to the states, although the subject matter of some of them may relate to human rights and liberties so fundamental as to be inherent in due process guaranteed by the 14th Amendment. An examination of the opinions of that court would seem to warrant such statement.

In Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177, it was held that the 14th Amendment does not make applicable to the states the Fourth Amendment's safeguard against unreasonable searches and seizures. In Twining v. New Jersey, 1908, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97, and in Adamson v. California, 1947, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223, it was held that the 14th Amendment does not make the Fifth Amendment's exemption from compulsory self-incrimination applicable to trials in state courts. In Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, it was held that the Fifth Amendment's immunity against double jeopardy was not made by the 14th Amendment to apply to prosecutions by the states. In West v. Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965, it was similarly held concerning the right conferred by the Sixth Amendment upon an accused in all criminal prosecutions to be confronted with the witnesses against him. In Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 and Bute v. Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986, the majority held that the 14th Amendment does not make the Sixth Amendment's provision for the right of an accused to have the assistance of counsel for his defense applicable to criminal proceedings in state courts (four Justices dissenting) although assistance of counsel in state courts may, nevertheless, under certain circumstances, be so vital to and essentially a part of the fundamental personal rights and liberties inherent in due process that a denial of or failure to provide counsel may, in such instances, constitute a violation of the due process clause of the 14th Amendment. See DeMeerleer v. Michigan, 329 U.S. 663, 67 S.Ct. 596, 91 L.Ed. 584, and cases therein cited. In Walker v. Sauvinet, 92 U.S. 90, 23 L.Ed. 678, it was held that the 14th Amendment does not make the guaranty of a trial by jury in suits at common law, provided for in the Seventh Amendment, applicable to trials in state courts. In Carter v. Illinois, 1946, 329 U.S. 173, 67 S.Ct. 216, 218, 91 L.Ed. 172, a majority of the court said: ‘But the Due Process Clause has never been perverted so as to force upon the forty-eight States a uniform code of criminal procedure. Except for the limited scope of the federal criminal code, the prosecution of crime is a matter for the individual States. The Constitution commands the States to assure fair judgment. Procedural details for securing fairness it leaves to the States. It is for them, therefore, to choose the methods and practices by which crime is brought to book, so long as they observe those ultimate dignities of man which the United States Constitution assures.’

As recently as 1948 a majority of the United States Supreme Court said: ‘After exhaustive consideration of the subject, this Court has decided that the Fourteenth Amendment does not, through its due process clause or otherwise, have the effect of requiring the several states to conform the procedure of their state criminal trials to the precise procedure of the federal courts, even to the extent that the procedure of the federal courts is prescribed by the Federal Constitution or Bill of Rights. There is nothing in the Fourteenth Amendment specifically stating that the long recognized and then existing power of the states over the procedure of their own courts in criminal cases was to be prohibited or even limited. Unlike the Bill of Rights, the Fourteenth Amendment made no mention of any requirement of grand jury presentments or indictments as a preliminary step in certain criminal prosecutions; * * *.’ Bute v. Illinois, supra [333 U.S. 640, 68 S.Ct. 772].

In the case of In re Palm, 255 Mich. 632, 238 N.W. 732, we held that the Constitution of the State of Michigan left the subject free to legislative control, that the legislature rightly could and did provide for criminal prosecutions by information, Comp.Laws 1929, § 17215, Stat.Ann. 28.941, and that such procedure constitutes due process of law. Application to the United States Supreme Court for certiorari was denied March 21, 1932. People of State of Michigan ex rel. Palm v. Jackson, 285 U.S. 547, 52 S.Ct. 409, 76...