People v. De Vine, 111.
| Decision Date | 17 May 1935 |
| Docket Number | No. 111.,111. |
| Citation | 261 N.W. 101,271 Mich. 635 |
| Parties | PEOPLE v. DE VINE. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Clarence De Vine was convicted of being a disorderly person, and he appeals.
Affirmed.
Appeal from Recorder's Court of Detroit; John V. Brennan, judge.
Argued before the Entire Bench.
George B. Murphy, of Detroit, for appellant.
Harry S. Toy, Atty. Gen., and Edmund E. Shepherd, Asst. Atty. Gen., for the People.
Upon trial without jury in the recorder's court of the city of Detroit, Clarence De Vine was convicted of being a disorderly person. He has appealed; permission first having been granted. The complaint, in part, reads as follows: ‘Clarence DeVine, * * * heretofore, to wit, on or about the 30th day of September, A. D. 1934, at the City of Detroit, in the County and State aforesaid, was then and there a disorderly person, contrary to the provisions of Sec. 167, of the Michigan Penal Code for the year 1931, in this, to wit, that he, the said Clarence DeVine was engaged in indecent and obscene conduct within the City of Detroit, to wit, at 16199 Wark Avenue.’
The first assignment of error is that before passing sentence the trial court lost jurisdiction; and in consequence thereof defendant should have been released from custody on the habeas corpus hearing subsequently had in the recorder's court. Appellant relies upon section 17433, Comp. 1929, from which we quote: ‘On the return of the warrant with the accused, if he shall plead not guilty or refuse to plead to the charge in the warrant, the said justice shall proceed to hear, try and determine the cause within ten (10) days after the return of the same. * * *’
The statute contains certain exceptions which are not material in the instant case. Defendant was brought into court on the warrant November 2, 1934. He pleaded not guilty. Trial was had, and defendant found guilty by the court November 8, 1934. Thereupon the court of its own motion deferred passing sentence until November 15, 1934, at which time defendant was sentenced to serve 90 days in the Detroit house of correction. The adjournment from the 8th to the 15th was for the purpose of referring the case to the psychopathic department and the probation officer of the recorder's court, each of which filed a report on or before the date defendant was sentenced.Defendant made no objection to this adjournment. He was released on his own recognizance during the adjournment period.
Appellant's contention is that the court, having deferred passing sentence for more than 10 days after he pleaded not guilty, lost jurisdiction. This contention cannot be sustained. Appellant was tried and convicted within the 10-day statutory period. The provision in the statute that the court shall ‘hear, try and determine the cause within ten (10) days' applies only to the hearing and trying of the cause and the determination of the built or innocence of the accused. We know of no provision of law which forbids the trial court deferring passing of sentence for a reasonable time, such as may be fairly necessary to enable the court to determine what penalty, if any, should be imposed. Similar provisions have been embodied in the statutes of this state for many years; and on numerous occasions such provisions have been passed upon by this court. They have not been given the strict construction for which appellant now contends. People v. Shufelt, 61 Mich. 237, 28 N. W. 79;People v. Hux, 68 Mich. 477, 36 N. W. 229;People v. Parsons, 163 Mich. 329, 128 N. W. 225. Dismissal of the habeas corpus proceedings was proper.
On defendant's motion for a new trial, he urged that he had been deprived of a jury trial and his constitutional right of due process of law thereby violated. In this connection it is pointed out in appellant's brief that the former statutory provision (3 Comp. Laws 1915, § 15774) was that, in case ‘no jury be demanded by him [the accused], the said court shall proceed to try such issue’; but in its present amended form the statute (Comp. Laws 1929, § 17431) reads: ‘If the plea of the accused be not guilty, and he waive trial by jury the said court shall proceed to try such issue.’
Because of the change in the wording of the statute, appellant contends there must be an express waiver of trial by jury, ‘made in writing,...
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