People v. Vulge

• Decision Date: 19 July 1923
• Docket Number: No. 105,June Term.,105
• Parties: PEOPLE v. VULGE.
• Court: Michigan Supreme Court

223 Mich. 656

194 N.W. 582

PEOPLE

v.VULGE.

No. 105, June Term.

Supreme Court of Michigan.

July 19, 1923.

Error to Circuit Court, Calhoun County; Walter H. North, Judge.

Mike Vulge was convicted of unlawful possession of intoxicating liquor, and brings error on exceptions before sentence. Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, and MOORE, JJ.

Bird and Fellows, JJ., dissenting in part.

D. G. F. Warner, of Lansing, for appellant.

Clyde C. Cortright, Pros. Atty., of Marshall, and A. W. Lockton, Asst. Pros. Atty., of Battle Creek, for the People.

STEERE, J.

Defendant was convicted by the verdict of a jury in the circuit court of Calhoun county of unlawfully having in his possession a quantity of intoxicating liquor. He brings the case here for review on exceptions before sentence. The question raised on this record is essentially one of procedure.

On complaint regularly made and warrant issued defendant was arrested and taken before the proper magistrate, where he waived examination and was bound over for trial to the circuit court. The committing magistrate made customary return of the proceedings to the circuit court, certifying that examination before him was waived. Under such return an information was filed at the ensuing term of the circuit court, which then had jurisdiction to try the case. People v. Wright, 89 Mich. 70, 50 N. W. 792.

Defendant was represented by counsel, and when arraigned stood mute to the charges contained in the information. A plea of not guilty was thereupon entered in his behalf by order of the court. The case was assigned for trial as the last criminal case of the term. When reached and called for trial a few days later with defendant and counsel for the respective sides present the clerk, by direction of the court, proceeded to impanel a jury when defendant's counsel interposed with a motion which he then filed, supported by an affidavit of defendant, asking that all evidence in the case obtained under a search warrant which had been previously issued by the magistrate be suppressed. To this the prosecution objected on the ground the motion came too late, the question was not raised in the lower court, defendant had waived examination, no search warrant was in the files of the case or before the court, no intimation to the court or previous notice to counsel had been given of such motion, and the court should not turn aside to inquire into a collateral issue as to the source of evidence when first presented after the case was called and trial begun. Treating the motion as tentatively submitted with defendant's rights preserved under a temporary adverse ruling, the court, with consent of defendant's counsel, held the question open for argument later, and proceeded with the trial. Of this the court said in later dismissing the motion:

‘The final determination of this motion was deferred for the purpose of enabling the prosecuting attorney to make a counter showing and enabling the attorneys for the respective parties to file briefs. This has been done and after having given the matter full consideration I am of the opinion that the motion should be denied for the following reasons: First. It now appears by the record in this cause that there was no unlawful use or abuse of a search warrant, but on the contrary the same was properly issued after a sufficient showing before the magistrate and, second, because the question now before the court was never raised by or in behalf of the defendant until after the trial of said cause had been called and the impaneling of the jury started. It is therefore ordered and adjudged that defendant's motion that the verdict be set aside and he be discharged from custody be, and the same is hereby, denied.’

It is undisputed that no search warrant or proceeding in relation to it appeared in the files of the case, nor did defendant at any time apply to the court for an order for further return. Defendant's counsel contends that under his motion to suppress and objection to introduction of any evidence to which it related it was incumbent on the prosecution to show the search warrant was supported by a proper affidavit and to that end, if he desired, make an application for a further return showing an affidavit, citing People v. Knopka, 220 Mich. 540, 190 N. W. 731. This court there construed the provisions of Act No. 53, Public Acts 1919, relative to search and seizure, as inferentially requiring that, where arrest of the accused follows execution of a search warrant, ‘and there is a return to the circuit court upon an examination,’ the search warrant, affidavits, etc., shall be made a part of...