People v. Uyl

• Decision Date: 05 April 1948
• Docket Number: Motion No. 433.
• Citation: 31 N.W.2d 699,320 Mich. 477
• Parties: PEOPLE v. DEN UYL et al.
• Court: Michigan Supreme Court

320 Mich. 477

31 N.W.2d 699

PEOPLE

v.DEN UYL et al.

Motion No. 433.

Supreme Court of Michigan.

April 5, 1948.

Appeal from Circuit Court, Ingham County; Chester P. O'Hara, judge.

Simon D. Den Uyl and others were examined by an examining magistrate on charge of obstructing legislation and wilfully and corruptly influencing the legislature's action by offering and receiving bribes. From an order granting the People of the State of Michigan an additional continuance, Simon D. Den Uyl and others appeal in the nature of mandamus, seeking a vacation of the order granting the continuance.

Mandamus issued directing examining magistrate to proceed with and conclude examination within 60 days or otherwise to dismiss the charges and discharge defendants.

Before the Entire Bench, except CARR, J.

Eugene L. Garey, of New York City, and Wm. Henry Gallagher, of Detroit (Milton I. Hauser, of New York City, of counsel), for defendants Bohn, Stoddard, Den Uyl and Slattery.

Clayton F. Jennings and Hubbard, McCullough & Fox, both of Lansing, for defendant Byron L. Ballard.

Frank Blackman, of Jackson, for defendant Carl F. Delano.

Benjamin F. Watson, of Lansing, for defendant Gilbert H. Isbister.

Roscoe Goembel, of Kalamazoo, for defendant James B. Stanley.

George S. Fitzgerald and Edward Martin Welch, both of Detroit, for defendants Ernest G. Nagel, Earl C. Gallagher, Adam W. Sumeracki, Edward J. Walsh and Joseph J. Kowalski.

William G. Fitzpatrick, of Detroit, for defendant James A. Burns.

Roy A. Loomis and Charles W. Jones, both of Detroit, for defendant Charles C. Diggs.

Allen H. Blondy, of Detroit, for defendant Charles S. Blondy.

Joseph Joseph, of Flint, for defendants Robert M. McLaughlin and Earl M. McEwen, Sr.

Joseph M. Donnelly, of Houghton, for defendant William Stenson.

Edmund E. Shepherd, Sol. Gen., and Richard B. Foster, Sp. Asst. Pros. Atty., both of Lansing, for appellee.

BOYLES, Justice.

This is an appeal in the nature of mandamus from an order continuing the preliminary examination in the above case made by Honorable Chester P. O'Hara, one of the circuit judges for Wayne county sitting as the examining magistrate in Ingham county. Appellants claim that the denial of their repeated demands to conclude their preliminary examination on the charges against them and the repeated granting of continuances for more than 18 months over their objections, is a violation of their constitutional and statutory right to a speedy examination and trial. The delay has been caused by the refusal of one Charles F. Hemans, claimed by the prosecution to be the main witness against appellants, to testify at such examination. The question here for decision is whether the refusal of Hemans to testify and the inability of the prosecution thus far to obtain his testimony constitutes good cause for a further adjournment after seven previous adjournments and for more than 18 months.

On July 20, 1946, Honorable Louis B. Coash, one of the circuit judges for Ingham county, acting as a co-called one-man grand jury under 3 Comp.Laws 1929, § 17217, Stat.Ann. § 28.943, issued a warrant for the arrest of the appellants herein, charging them with conspiracy to obstruct legislation and wilfully and corruptly to influence the action of the legislature, by offering and receiving bribes. The defendants appeared in court and were admitted to bail. Examination before Judge O'Hara as said examining magistrate was commenced September 10, 1946, and witnesses were examined on various dates from September 10 through September 25, 1946. On the latter date the prosecution moved for a continuance of the examination because of its inability to produce Hemans as a witness, due to his absence from the State. Over objections of the defendants and notwithstanding their demand that the hearing continue, the examination was adjourned to October 9, 1946.

Prior to October 9, 1946, appellants' counsel were advised that the examination would be continued to October 16, 1946. On that date the prosecution produced Mr. Hemans as a witness for the people. He refused to answer certain questions on the ground that the answers might tend to incriminate him in a pending Federal prosecution. On September 16, 1946, he had been indicted by a Federal grand jury for leaving Michigan and traveling in interstate commerce with intent to avoid giving testimony in this matter, in violation of 48 Stat. at L. 782, as amended by 60 Stat. at L. 789, 18 U.S.C.A. § 408e. (He was convicted of this offense on November 8, 1946, sentenced to a Federal penitentiary for a term of four years and appealed to the United States supreme court. See Hemans v. United States, 6 Cir., 163 F.2d 228, certiorari denied October 20, 1947, 332 U.S. 801, 68 S.Ct. 100, 92 L.Ed. 380.) Said conviction and sentence were thus affirmed.

On October 17, 1946, the examining magistrate upheld Hemans' right to refuse to testify. To permit an appeal by the prosecution from said ruling of the magistrate, and over the objection of the defendants, the examination was then further adjourned to January 6, 1947. Thereupon the prosecution, on leave granted, appealed said ruling to this Court.

Because that appeal was still pending, and over the continued objections and opposition of the defendants, the examination was again adjourned to April 28, 1947, and defendants' motion to dismiss was denied on that date. The examination was then adjourned to June 30, 1947, and to October 9, 1947. On July 28, 1947, the United States circuit court of appeals for the sixth circuit affirmed Hemans' conviction of the offense charged in Federal court, whereupon a petition for certiorari was filed in the United States supreme court and denied on October 20, 1947, as hereinbefore stated.

On October 9, 1947, the prosecution moved for a further continuance because its appeal to this Court had not been decided and because Hemans' appeal from his conviction in Federal court had not been finally determined. At that time the prosecution offered an affidavit pursuant to Michigan Court Rule No. 36 (1945), as to the facts expected to be proved by Hemans as a witness and the diligence used to procure his attendance. Over strenuous protests by the defendants and notwithstanding their renewed assertions of their right to a speedy examination and trial, and despite their demands in open court that the examination be brought to a conclusion or the proceedings be dismissed, the magistrate again adjourned the examination to November 13, 1947.

On October 13, 1947, this Court affirmed the ruling of Judge O'Hara and upheld Hemans' privilege against self-incrimination. In re Hemans, 318 Mich. 645, 29 N.W.2d 284. Hemans' application for certiorari from his conviction on the Federal charge having been denied by the United States supreme court on October 20, 1947, 332 U.S. 801, 68 S.Ct. 100, both of the pending appeals had thus come to a final determination. Thereupon the examination before Judge O'Hara was resumed on November 13, 1947. Hemans again refused to answer certain essential questions and was adjudged guilty of contempt. The magistrate directed the prosecution to submit a warrant for his signature, to become effective upon the release of the witness from Federal imprisonment (presumably on November 8, 1950), then committing the witness to the county jail until such time as he would answer the questions or be discharged according to law. Hemans' four-year sentence on which he is still confined in the Federal penitentiary, unless he should be given a good time allowance of which this Court has not been informed, would not expire until November 8, 1950.

The prosecution then moved for a further continuance until such time as Hemans should testify, or be dead, or otherwise incapable of testifying. Over further objections of defendants and their motions to dismiss, the examination was then adjourned until March 24, 1948. The court stated that the witness would be permitted to purge himself at any time. From said order of continuance the defendants have appealed to this Court in the nature of mandamus, seeking a vacation of the order granting said continuance, and asking that the magistrate be directed to proceed forthwith to a conclusion of the preliminary examination. The question now before us for determination is whether, under these circumstances, the constitutional and statutory right of the appellants to a speedy trial has been violated.

It will be seen that the lapse of time from appellants' arrest to the last adjourned date of the examination is approximately 20 months, and from the commencement of the examination over 18 months. The adjourned date is during the sixth term of court after the commencement of the examination. If continuances were allowable until the expiration of Hemans' term in the Federal penitentiary, the lapse of time between the arrest of the appellants and the time of Hemans' release (without good time allowance) would be more than four years.

The Michigan Constitution 1908, art. 2, § 19, provides: ‘In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury.’

The statutory provisions which apply to the question at bar are as follows:

‘The state and accused shall be entitled to a prompt examination and determination by the examining magistrate in all criminal causes and it is herby made the duty of all courts and public officers having duties to perform in connection with such examination, to bring them to a final determination without delay except as it may be necessary to secure to the accused a fair and impartial examination.’ 3 Comp.Laws 1929, § 17193, Stat.Ann. § 28.919.

‘The magistrate before whom any person is brought on a charge of having committed an offense not cognizable by a justice of the peace, shall set a day for examination not exceeding [10] days thereafter, at which time he shall examine the complainant and the witnesses in support of the prosecution, on oath in the...