People v. Washburn

• Decision Date: 08 June 1938
• Docket Number: No. 121.,121.
• Citation: 285 Mich. 119,280 N.W. 132
• Parties: PEOPLE v. WASHBURN.
• Court: Michigan Supreme Court

285 Mich. 119

280 N.W. 132

PEOPLE

v.WASHBURN.

No. 121.

Supreme Court of Michigan.

June 8, 1938.

Lester Washburn was convicted of statutory offense of molesting a laborer by intimidation in pursuit of his avocation, and he appeals.

Affirmed.Appeal from Circuit Court, Ingham County; Leland W. Carr, judge.

Argued before the Entire Bench, except POTTER, J.

Seymour H. Person, of Lansing (Davidow & Davidow, of Detroit, of counsel), for appellant.

Raymond W. Starr, Atty. Gen., and Thomas J. Bailey, Pros. Atty., and Claude P. Dowis and Leonard B. Crandall, Asst. Pros. Attys., all of Lansing, for the People.

CHANDLER, Justice.

Respondent was charged and found guilty of having violated Section 352 of Act No. 328, Pub. Acts 1931, Mason's Supp., 1935, Sec. 17115-352 (25 Mich.Stat.Ann. Sec. 28.584), which provides as follows:

‘Any person or persons who shall by threats, intimidations, or otherwise, and without authority of law, interfere with, or in any way molest, or attempt to interfere with, or in any way molest or disturb, without such authority, any mechanic or other laborer, in the quiet and peaceable pursuit of his lawful avocation, shall be guilty of a misdemeanor.’

Respondent was sentenced to pay a fine of $100 and costs of $150, and in default of payment of fine and costs to serve 90 days in the Ingham County jail.

The return of the Justice of the Peace to the Circuit Court of Ingham County shows that pursuant to a warrant issued on June 7, 1937, the respondent was arrested, arraigned and a plea of not guilty entered on June 9th; that a jury was impaneled at the request of defendant and trial had on July 14th, at which time defendant was found guilty; that a judgment was then rendered requiring defendant to pay costs of $100 and in default thereof that he should be imprisoned for 30 days in the county jail.

Defendant contends that the proceeding in the Justice Court was unlawful and contrary to 3 Comp.Laws 1929, Sec. 17433 (25 Mich.Stat.Ann. Sec. 28.1199), and that by reason thereof jurisdiction was lost and the conviction and sentence of defendant was coram non judice. The mentioned statute provides:

‘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, unless the absence of witnesses from the county without the fault or connivance of the party seeking such continuance shall render such continuance necessary, or unless the sickness of witnesses or of the accused shall render a continuance of such cause necessary; in which case it shall and may be competent for the justice to adjourn or continue the same for such time as may be necessary to secure the ends of Justice: Provided, That in case of the absence of witnesses the party seeking to obtain a continuance for that cause shall further show to the satisfaction of the court that he has used due diligence to obtain the testimony of such witness. Such showing shall be the same as is required in civil cases.’

The above enactment first appeared as Section 3 of the Revised Statutes of 1846, Chap. 94, or 2 Comp.Laws 1857, Sec. 3926, which provided that upon the return of the warrant with the accused the Justice was to hear, try and determine the cause within one week. Thereafter, it was amended by Act No. 117, Pub. Acts 1867, so that continuances could be granted by reason of the absence of illness of witnesses or the sickness of the accused not exceeding 30 days in all. The statute remained in this form until the present enactment appeared in 3 Comp.Laws 1929, Sec. 17433, removing the 30 day limitation and extending the period of time in which the Justice was to hear, try and determine the cause to 10 days.

This legislation in its various forms has been before the court on several occasions and at all times it has been interpreted liberally and the indicated causes for adjournment were not at any time considered as all inclusive. Earlier cases are summed up and the rule expressed in People v. Parsons, 163 Mich. 329, 128 N.W. 225, 226:

‘A strict construction of this section would require that the accused be tried within one week unless one of the grounds for continuance specified in the statute were shown, and the case could no more be continued beyond one week without the statutory showing than it could be continued beyond 30 days in all with the statutory showing. Nevertheless, this court held, in People v. Shufelt, 61 Mich. 237, 28 N.W. 79, that the case might be continued beyond the week upon a showing of the sickness of the prosecuting attorney, which is not a statutory ground for continuance. In People v. Hux, 68 Mich. 477, 36 N.W. 229, it was held that an adjournment for more than one week, upon the application of the respondent, and with the consent of the prosecuting attorney, did not oust the justice of jurisdiction. To the same effect, see People v. Weeks, 99 Mich, 86, 57 N.W. 1091. * * *

‘The decisions cited show clearly that this court has not applied a strict construction to this statute, but has construed it to authorize adjournments, against the objection of the accused, where such adjournments, like those specified in the statute, were necessary to promote the interests of justice. This statute was enacted to secure to accused persons that right to a speedy trial which is guaranteed to them by the Constitution, and it would be a harsh construction which should turn this shield for their protection into a sword for their destruction. We are satisfied that a proper construction of this section permits of adjournments beyond 30 days, where such adjournments are granted upon application of the accused upon a sufficient showing, whether with or without the consent of the prosecuting attorney.’

See also People v. DeVine, 271 Mich. 635, 261 N.W. 101.

But where objection was made to adjournment, the court construed the statute strictly and held that an adjournment for a reason other than stated in the statute beyond a week from the return of the warrant justified reversal. Village of Vicksburg v. Briggs, 85 Mich. 502, 48 N.W. 625. In the instant case, however, defendant and his counsel were present at the time trial was set for July 14th and made no objection, but at that date appeared and without questioning the jurisdiction of the court...