People v. Tillard
| Citation | 318 Mich. 619,29 N.W.2d 111 |
| Decision Date | 13 October 1947 |
| Docket Number | June Term, 1947.,No. 69,69 |
| Parties | PEOPLE v. TILLARD. |
| Court | Supreme Court of Michigan |
OPINION TEXT STARTS HERE Appeal from Recorder's Court of Detroit; W. McKay Skillman, judge.
Proceeding by People of the State of Michigan against Leo Tillard on charge of armed robbery. From order denying motion to quash proceedings, the defendant appeals.
Affirmed, and case remanded.
Before the Entire Bench.
Eugene F. Black, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and James N. McNally, Pros. Atty., and Robert Newton Smiley, and Herbert Burdick, Asst. Pros. Attys., all of Detroit, for the People.
Shapero & Shapero, Sidney L. Cohn, and Morton Fisher, all of Detroit, for defendant and appellant.
The defendant was 16 years of age at the time he is alleged to have committed a felony. He was past 17 at the time when the present criminal proceeding was started against him in the recorder's court of Detroit. The only question for decision is whether the recorder's court has jurisdiction without a waiver from the juvenile division of the probate court. A motion to quash was made in recorder's court, denied, and on leave granted the defendant appeals from the order of denial.
On September 7, 1946, the defendant was arrested on a charge of robbery armed on that date, in the city of Detroit. He was then 16 years of age, and on September 8th was removed to the juvenile detention home. On September 11th a complaint was filed and a warrant issued. On September 23d the defendant became 17 years of age. On October 28th the defendant was arraigned in the recorder's court of Detroit on an information charging said felony, and his counsel moved to quash all proceedings against him on the ground that the recorder's court had no jurisdiction to try him without a waiver of jurisdiction from the juvenile court. On November 25th said motion to quash was granted. The defendant had not moved to have the proceeding transferred to the juvenile division and this was in legal effect a dismissal of the charge pending against him at that time. On the same date, November 25th, another complaint was filed in recorder's court charging that the defendant, on September 7, 1946, while armed with a dangerous weapon, assaulted one Edwin Sikorski and feloniously took $86 from his person. On this complaint a warrant was then issued. On December 9th an information was filed in recorder's court by the prosecuting attorney charging the defendant with the above offense, the defendant was then arraigned, stood mute, and a plea of not guilty was entered. On December 16th defendant's counsel filed a motion to quash this proceeding on the grounds (1) that the defendant had already been in jeopardy; (2) that he was under the age of 17 years when the offense was committed and no waiver had been obtained from the juvenile court; (3) that proceedings were commenced September 11th while the defendant was 16 years of age and that the recorder's court obtained no jurisdiction at that time or any time thereafter, the necessary waiver not having been procured. On January 9, 1947, the motion to quash was denied and on leave granted, this appeal is taken from the order of denial.
The first proceeding came to an end when the court, on November 25, 1946, granted the motion to quash all that proceeding. The defendant had not yet been placed in jeopardy and there was no bar to the subsequent proceeding.
‘The respondents were not in jeopardy until a jury of 12 men should be selected and sworn.’ People v. Barker, 60 Mich. 277, 290, 27 N.W.539, 543,1 Am.St.Rep. 501.
‘No proceeding in a criminal case can operate as a bar to further prosecution until the accused has been put in jeopardy, and this cannot occur until he has been placed upon trial.’ Gaffney v. Circuit Judge, Missaukee County, 85 Mich. 138, 139, 48 N.W. 478.
‘A person is in jeopardy when he is put upon trial in a court of justice charged with a violation of law.’ People v. Powers, 272 Mich. 303, 307, 261 N.W. 543, 544.
The jurisdiction and powers of the juvenile division of the probate court are governed by Act No. 54, Pub.Acts 1944, 1st Ex.Sess., as amended by Act No. 22, Pub.Acts 1946, 1st Ex.Sess., Stat.Ann.1946 Cum.Supp. §§ 27.3178(598.1)-27.3178(598.28), which act repealed chapter 12 of Act No. 288, Pub.Acts 1939 (the probate code), governing the jurisdiction and powers of said juvenile division, and in lieu thereof added chapter 12a to said probate code for the same purpose. The provisions of said Act No. 54, as amended, Stat.Ann.1946 Cum.Supp. §§ 27.3178(598.2), 27.3178(598.3), 27.3178(598.4), which are pertinent to the present case are as follows:
‘(a) Exclusive original jurisdiction in proceedings concerning any child under 17 years of age found within the county
‘(1) Who has violated any municipal ordinance or law of the state or of the United States; * * *.'
* * *'
The last above quoted section 4 must be read together with the first above quoted part of section 2. Under ...
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Mathers, In re
...jurisdiction and powers of the juvenile division of the probate court are governed by chapter XIIa of the Probate Code, People v. Tillard, 318 Mich. 619, 29 N.W.2d 111, which provides that it shall be liberally construed to the end that the child will receive the care, guidance and control ......
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People v. Gardner, Docket No. 9716
... ... This strong policy has led both the U.S. Supreme Court and Michigan courts to declare that a defendant is placed in jeopardy once the jury is impaneled and sworn. Jorn, supra, 400 U.S. at 479, [37 Mich.App. 526] 91 S.Ct. at 554, 27 L.Ed.2d at 553; People v. Tillard, 318 Mich. 619, 29 N.W.2d 111 (1947); People v. Henley, 26 Mich.App. 15, 182 N.W.2d 19 (1970). Once a defendant has been placed in jeopardy, he has a right to have his guilt weighed finally by that tribunal. If the jury is discharged without legal justification or defendant's consent before his ... ...
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People v. Thompson
... ... People v. Schepps, 231 Mich. 260, 203 N.W. 882 (1925); People v. Tillard, 318 Mich. 619; 29 N.W.2d 111 (1947). Thus, the judicial interpretation of Const. 1908, art. 2, Sec. 14, while consistent with federal double jeopardy law, offered far broader protections for defendants than the plain language of the clause would seem to reflect ... The ... ...
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People v. Pribble
... ... More recent authority has also indicated that jeopardy attaches when the jury is impaneled and sworn. People v. Gardner, 37 Mich.App. 520, 195 N.W.2d 62 (1972), People v. Henley, 26 Mich.App. 15, 182 N.W.2d 19 (1970), People v. Schepps, 231 Mich. 260, 203 N.W. 882 (1925), People v. Tillard, 318 Mich. 619, 29 N.W.2d 111 (1947), People v. Anglin, 6 Mich.App. 666, 150 N.W.2d 532 (1967). See, also, United States v. Jorn, supra. In the instant case, the precise reason that the trial court directed (sua sponte) a mistrial is because the jury was not sworn. Its subsequent acts would ... ...