People v. Spalding, Docket No. 4888

• Decision Date: 22 April 1969
• Docket Number: Docket No. 4888,No. 2,2
• Citation: People v. Spalding, 17 Mich.App. 73, 169 N.W.2d 163 (Mich. App. 1969)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence SPALDING, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 163

169 N.W.2d 163

17 Mich.App. 73

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence SPALDING, Defendant-Appellant.

Docket No. 4888.

Court of Appeals of Michigan, Division No. 2.

April 22, 1969.

Released for Publication July 24, 1969.

Jerome A. Susskind, Badgley, Domke, McVicker & Marcoux, Jackson, for defendant-appellant.

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

Before LESINSKI, C.J., and T. M. BURNS and J. J. KELLEY, ^* JJ.

PER CURIAM.

Defendant appeals his convictions of escape from prison (C.L.S.1961, § 750.193 (Stat.Ann.1962 Rev. § 28.390)), and of being a second offender (C.L.S.1961, § 769.10 (Stat.Ann.1954 Rev. § 28.1082)).

Preliminary examination was set for January 18, 1966, but on that date the judge delayed the examination at the request of the prosecution because a material witness was ill. The examination was held on October 10, 1966.

Defendant was duly convicted by the jury of escape from prison. Immediately after rendition of that verdict, defendant moved for a new jury on the ground that the jury which had convicted him of escape would be unduly prejudiced against him. After the court denied defendant's motion, the prosecution read to the jury the supplemental information charging that defendant was a second felony offender. The jury found defendant to be a second offender.

Defendant urges three grounds for reversal: (1) That the denial of a separate jury on the second offender charge deprived him of trial by an impartial jury, (2) that the delay in examination deprived him of a speedy trial, and (3) that the trial court failed to instruct on intent and on the effect of duress.

The recent opinion by this Court on rehearing in People v. Stratton (1968), 13 Mich.App. 350, 164 N.W.2d 555, exactly parallels the facts of this case as to handling of the second offender charge, and controls on that issue. This Court therein approved the procedure used in this case, noting that other states follow basically the same procedure, which does not violate due process as required of the states through the Fourteenth Amendment. Burgett v. Texas (1967), 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319; Spencer v. Texas (1967), 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606. We there held that a separate jury should be granted only when, in the discretion of the trial judge, it appears that some special prejudice against the defendant probably will be created in the minds of the jury by the peculiar facts of the substantive charge they have just heard. Here defendant alleges no such prejudice and none appears in the record. The trial judge properly exercised his discretion in denying a separate jury.

The right to a speedy trial is a constitutional right, but it has no absolute standard. The requirement is that the trial commence within a reasonable time given all the circumstances. Hicks v. Judge of Recorder's Court of Detroit (1926), 236 Mich. 689, 211 N.W. 35. Since circumstances can vary widely from case to case, the statute, C.L.1948, § 766.7 (Stat.Ann.1954 Rev. § 28.925), vests discretion in the trial judge to decide when justice requires that a trial be delayed. In this case, the record...