People v. Torns

• Decision Date: 24 April 1970
• Docket Number: No. 2,Docket No. 6187,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel TORNS and Ernest Brazle, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 502

178 N.W.2d 502

23 Mich.App. 238

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel TORNS and Ernest Brazle, Defendants-Appellants.

Docket No. 6187.

Court of Appeals of Michigan, Division No. 2.

April 24, 1970.

Released for Publication July 23, 1970.

James R. Buckley, Flint, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and FITZGERALD and VAN DOMELEN, ^* JJ.

FITZGERALD, Judge.

On July 24, 1967, defendants Samuel Torns and Ernest Brazle were arrested and charged with murder in the first degree contrary to M.C.L.A. § 750.316 (Stat.Ann.1954 Rev. § 28.548). The facts which led to their arrest and subsequent conviction are as follows:

On July 23, 1967, defendants were involved in an altercation with Edward Lewis and Ernest McCombs at a house party in the city of Flint. Defendants had been with a group of people across the street and a general melee seems to have developed between the two groups. Lewis and McCombs left the party together to go to the home of McCombs' sister, Mrs. Lois Willingham, and defendants followed. Along the route, Torns and Brazle obtained two rifles as well as ammunition. When they arrived at their destination, a shot was fired from the Willingham home. At this point, defendants fired into the home killing Mrs. Lois Willingham.

Following a preliminary examination, defendants were bound over for trial on the charge of murder in the first degree. On September 5, 1967, they were arraigned on the charge, the information was read and defendants were informed of their rights regarding their pleas. They stood mute and pleas of not guilty were entered in their behalf.

On October 18, 1967, defendants moved to quash the information charging that the magistrate abused his discretion at the preliminary examination in binding them over for trial. On October 31, 1967, the motion was denied, the trial court ruling that there was sufficient evidence to support the charge.

Defendants, being represented by counsel, waived their rights to a jury trial and on May 14, 1968, trial commenced. On the second day of trial, defendants moved to withdraw their not guilty pleas and to enter pleas of guilty to an amended information charging them with murder in the second degree. M.C.L.A. § 750.317 (Stat.Ann.1954 Rev. § 28.549). The new pleas were accepted and on June 25, 1968, they were both sentenced to 15 years to 35 years in prison.

The Court addresses itself to a consideration of whether defendants, who entered pleas of guilty to an amended information charging second degree murder, are entitled to attack the magistrate's finding of first degree murder in binding them over to circuit court for trial. Defendants contend that there was not sufficient evidence of premeditation or malice to justify binding them over for trial on a charge of murder in the first degree. The people argue that the guilty plea on the amended charge of murder in the second degree displaces the original plea and constitutes a waiver of defects in preliminary proceedings. They further contend that there is ample evidence to support binding defendants over for trial.

An examination of the proceedings reveals that both defendants stood mute at their arraignment on the charge of murder in the first degree. It is undisputed that such a plea preserved irregularities in the proceedings up to that point. A motion to quash the information was also made and subsequently denied prior to pleading on the amended information. On the basis of the foregoing, defendants contend that the question of the sufficiency of the information is preserved for attack on appeal. Defendants aver that there was not a 'scintilla' of evidence to support the action of the examining magistrate in binding them over for trial. It is claimed that in the absence of evidence of premeditation, malice, and other statutory elements of murder in the first degree, the court should have ruled favorably on the motion to quash the information.

In view of the facts, we find it difficult to concur with defendants' reasoning as to the preservation of their right to attack prior proceedings before the magistrate. In pleading guilty to the amended information, which seemingly cured the defects to which they object, the logical conclusion would be that defendants eliminated the original plea and waived prior error. In effect, the charge of second degree murder was what they had sought through prior motions and it is on this basis that we conclude that they were not prejudiced by any error at the preliminary examination. In pleading guilty to the amended information, defendants came under the purview of People v. Tate (1946), 315 Mich. 76, 23...