People v. Stanley, 90

• Decision Date: 01 March 1956
• Docket Number: No. 90,90
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Daniel William STANLEY, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 39

75 N.W.2d 39

344 Mich. 530

The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Daniel William STANLEY, Defendant and Appellant.

No. 90.

Supreme Court of Michigan.

March 1, 1956.

John D. O'Connell, Detroit, for defendant and appellant.

Thomas M. Kavanagh, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Lansing, Gerald K. O'Brien, Pros. Atty., Wayne County, Samuel Brezner, Chief Appellate Lawyer, Angelo A. Pentolino, Samuel J. Torina, Asst. Pros. Attys., Detroit, for the People.

Before the Entire Bench.

BOYLES, Justice.

The first question in this case, which, however, could control the result, is whether an appeal to this Court in a criminal case, merely by filing a claim of appeal, will confer jurisdiction here to review a criminal case, where the appellant has not first obtained leave to appeal.

In 1953 the defendant-appellant Daniel William Stanley was tried by jury, convicted and sentenced in the recorder's court for Detroit for taking possession of and driving away a motor vehicle belonging to another without authority, under section 413 of the Penal Code. ¹ On July 29, 1954, appellant's motion for a new trial was denied by the trial court and on January 21, 1955, he filed a claim of appeal under Court Rule No. 56, § 1, and Court Rule No. 57, § 1 (1945), without first obtaining leave to appeal. On June 10th the attorney general and the prosecuting attorney for Wayne county joined in filing in this Court a motion to dismiss the appeal on the ground that the defendant-appellant had proceeded to appeal as of right, without attempting to obtain leave to appeal as prescribed in C.L. 1948, § 770.3 Stat.Ann.1954 Rev. § 28.1100, ² and Court Rule No. 60, § 2(a), par. 3 (1945). Hearing on this motion was deferred for later consideration when the record and briefs on appeal had been filed.

On April 5, 1955, the trial judge settled a bill of exceptions in the cause upon a stipulation signed by the prosecuting attorney and counsel for the defendant that the bill of exceptions might be settled without prejudice to the right of the people to move in this Court for a dismissal of the appeal because the defendant had not applied for or obtained leave to appeal. The certificate of the trial judge in certifying to the bill of exceptions stated:

'that defendant has proceeded to appeal as of right, claiming under authority of Act No. 53, P.A.1954, without having obtained prior leave from the Supreme Court, and that by stipulation of counsel, settlement of the bill of exceptions herein is without prejudice to the people's right to move in the Supreme Court for a dismissal of the appeal by reason of defendant's failure to apply for and obtain leave to appeal.'

The motion as well as the case has now been submitted here on briefs. Preliminary to a decision on the case itself, it is necessary to consider and decide the motion to dismiss. If the appeal is dismissed, the Court will not reach a consideration of any other question raised in the briefs in the case.

At the outset, in our consideration of the motion to dismiss, it must be made plain that the Court is not passing upon the defendant's right to appeal, and to have in this Court a review of his conviction and sentence. The question here relates to procedure. It involves the questions whether this Court has constitutional (as well as statutory) authority to promulgate and enforce rules governing the procedure whereby we obtain jurisdiction to review a conviction and the sentence in a criminal case; whether we have made such rules; and whether their procedure has been followed in the instant case.

There can be no question but that the legislature has authorized this Court to make rules regulating appellate procedure. In 1929, subsequent to the enactment of the Judicature Act 1915 and the Code of Criminal Procedure 1927, hereinafter discussed, the legislature passed Act 27, P.A.1929, ³ titled:

'An Act to authorize the supreme court to make rules regulating appellate procedure',

which states:

'The supreme court may, by general rules, provide simplified forms, methods, and procedure by which such court and other courts of record shall exercise the appellate jurisdiction conferred upon them by law, and such rules, while in force, shall be controlling, any statutory provision to the contrary notwithstanding: Provided, That no right to a review conferred or preserved by the constitution of this state shall thereby be denied or diminished.' (Italics supplied.)

See, also, Act 377, P.A.1927, with required the governor to appoint, before June 1, 1927, a commission of 5 attorneys to confer with the Supreme Court, suggest revised rules of practice and procedure in the Supreme Court and all other courts of record and a simplified method of appellate procedure, and report the same to this Court. These acts later led to the adoption of the present Court Rules governing appeals, by filing a claim of appeal, or by obtaining leave to appeal. Rule No. 60.

Aside from the aforesaid statutory authority, this Court, on many occasions, has recognized and relied upon its inherent constitutional authority to exercise rulemaking powers, including those pertaining to its own practice and procedure. The power to regulate its procedure inherently rests in the Supreme Court. Brown v. Buck, Kalamazoo Circuit Judge, 75 Mich. 274, 42 N.W. 827, 5 L.R.A. 226; Behr v. Baker, 257 Mich. 487, 241 N.W. 229; Pear v. Graham, 258 Mich. 161, 241 N.W. 865; Attorney General v. Lane, 259 Mich. 283, 243 N.W. 6; People v. Hurwich, 259 Mich. 361, 372, 243 N.W. 230; In re Widening Woodward Avenue, 265 Mich. 87, 90-91, 251 N.W. 379; Jones v. Eastern Michigan Motorbuses, 287 Mich. 619, 283 N.W. 710; St. John v. Nichols, 331 Mich. 148, 159, 49 N.W.2d 113; Tomlinson v. Tomlinson, 338 Mich. 274, 276-278, 61 N.W.2d 102; In re Koss' Estate, 340 Mich. 185, 189, 65 N.W.2d 316. Also, as to the nature, right of review and method of review by appeal in criminal cases, see 2 Gillespie, Michigan Criminal Law & Procedure (2d ed.), §§ 786, 787, and cases cited.

'The supreme court shall by general rules establish, modify and amend the practice in such court and in all other courts of record, and simplify the same.' Mich.Const.1908, art. 7, § 5.

This Court has the authority to make and enforce rules governing the procedure to be followed in invoking the appellate jurisdiction of this Court for the review of convictions and sentences in criminal cases. Such rules have been adopted and are in force. ⁴ In the instant case appellant admits that he has not complied with the rules, not having sought or obtained leave to appeal.

This takes us to the question whether the statutory procedure for issuing 'writs of error,' the nomenclature used in the legislative enactments hereinafter referred to, with particular reference to the Judicature Act and the amendment thereto by Act 53, P.A.1954, on which appellant relies, controls the manner of, and the procedure for, taking appeals to this Court in criminal cases. ⁵ In that connection, the Court will take judicial notice of its records and files, which show since these rules were adopted in 1933 and again in 1945 they have controlled, as to the method of invoking the appellate jurisdiction of the Court, and that the method of review by issuing a writ of error has not been used during that time. Apparently, in practice, that method has been superseded by the rules.

The Michigan Constitution provides:

'The supreme court shall have a general superintending control over all inferior courts; and shall have power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo and other original and remedial writs, and to hear and determine the same. In all other cases it shall have appellate jurisdiction only.' Article 7, § 4, Mich. Const.1908.

The legislature has implemented the constitutional provision as applied to writs of error, as follows:

'Sec. 9. The supreme court shall have a general superintending control over all inferior courts, to prevent and correct errors and abuses therein, where no other remedy is expressly provided by law, and shall have also jurisdiction of suits, actions and matters brought before it by writ of certiorari or writ of error, when the same shall be allowed by law to any inferior court, to magistrates and other officers, as well in cases of prosecution for any offense, misdemeanor or penalty, in the name of the people of this state, as in other cases.' Section 9, chapter 1, Act 314, P.A.1915, The Judicature Act of 1915, C.L.1948, § 601.9, Stat.Ann. § 27.29.

The legislature has further implemented the constitutional provision by referring directly to writs of error, as follows:

'Sec. 1. Writs of error upon any final judgment or determination, where the judgment exceeds in amount $500.00, or where judgment has been rendered upon a directed verdict for defendant in cases involving a claim of more than $500.00, and in final judgment in all criminal cases involving the personal liberty of a party thereto when the judgment is against such party, may issue, of course, out of the supreme court, in vacation as well as in term, and shall be returnable to the same court; and in all other cases such writ may issue in the discretion of the supreme court or any justice thereof upon proper application: Provided, however, That if said case involves a construction of the constitution or of any statute of this state, or any matters of great public importance or involves the contest of a will, such application need only show such fact and, when filed, the writ of error shall issue of course.' (Italics supplied.) Section 1, chapter 50, Judicature Act, supra, C.L.1948, § 650.1, Stat.Ann.1943 Rev. § 27.2591, as amended by P.A.1953, No. 4, and P.A.1954, No. 53.

The concluding italicized words, as above indicated, were added to this section by P.A.1953, No. 4. This section was again amended by P.A.1954, No. 53, in which amendment the above...