People v. Wolfson, 124.

• Decision Date: 02 October 1933
• Docket Number: No. 124.,124.
• Citation: 264 Mich. 409,250 N.W. 260
• Parties: PEOPLE v. WOLFSON.
• Court: Michigan Supreme Court

264 Mich. 409

250 N.W. 260

PEOPLE

v.WOLFSON.

No. 124.

Supreme Court of Michigan.

Oct. 2, 1933.

Appeal from Circuit Court, Macomb County; Herman Dehnke, Judge.

Alvin Wolfson was adjudged guilty of perjury, and he appeals.

Order and sentence appealed from affirmed.

Argued before the Entire Bench.Henry C. Bogle, of Detroit (Edward G. Kemp, of Detroit, and Christian F. Matthews, of Mt. Clemens, of counsel), for appellant.

Patrick H. O'Brien, Atty. Gen., and Roy M. McKinstry, Pros. Atty., of Mt. Clemens, for the People.

SHARPE, Justice.

On March 26, 1931, the prosecuting attorney of the county of Macomb filed a petition in the circuit court, verified by him, praying for an investigation whether or not an offense not cognizable by a justice of the peace had been committed. The investigation was conducted by Judge Dehnke of the Twenty-Third circuit, sitting as a one-man grand jury, pursuant to the provisions of section 17217 et seq., Comp. Laws 1929. In the course of the proceeding, the defendant, Wolfson, who had given testimony as a witness, was adjudged to be guilty of perjury. From the order so entered and the sentence imposed he has taken this appeal.

The questions involved are stated by his counsel as follows:

‘1. Has a circuit judge sitting as a one-man grand jury power to punish a witness for contempt on the ground that he has given false, evasive or untrue answers?

‘2. Were the proceedings for the calling of said one-man grand jury sufficient to give the circuit judge jurisdiction?

‘3. Were the answers of the witness to the various questions false, evasive or untrue and did they constitute contempt?

‘4. Was certain proof offered by defendant in the contempt proceedings material?

1. This question has quite recently been decided by this court adversely to the claim of the defendant. In Mundy v. McDonald, 216 Mich. 444, 185 N. W. 877, 20 A. L. R. 398, the defendant, a circuit judge, had conducted a one-man grand jury investigation in the county of Bay. At the conclusion thereof, he filed a report in which the plaintiff, at that time mayor of the city of Bay City, was charged with willful neglect of duty. An action of libel based thereon was brought against him. It was dismissed on motion in the circuit court and an appeal taken to this court, where it was held that the defendant was acting as a judge of a court of record and was exempted from civil liability reason thereof.

The authorities are there reviewed at length. Attention was called to the holding in Johnson v. Morton, 94 Mich. 1, 53 N. W. 816, wherein it was urged that a circuit judge at chambers is not invested with the powers of the circuit court, and the court said (page 6 of 94 Mich.,53 N. W. 816, 818): ‘When an application is made to a judge to hold to bail, it is his duty to hear and investigate; and if the affidavit sets up facts and circumstances tending to show fraud or breach of trust, thus bringing the case within the exceptions of the constitution, authority to act depends upon the facts, and the determination of the judge must be held to have all the qualities of a judicial decision, and as such protects the judge, the officer, and the party.’ Ward v. Cozzens, 3 Mich. 252, and Thomas v. Rosecrantz, 193 Mich. 357, 159 N. W. 514, were also referred to at some length. The conclusion reached was thus stated by Mr. Justice Stone (pages 458, 459 of 216 Mich., 185 N. W. 877, 882): ‘Under the foregoing authorities, it must be held that the composing of and filing in the clerk's office of the findings complained of as libelous were judicial acts requiring a decision on the part of the judge as to the proper course to be pursued. To hold that the acts were in excess of jurisdiction, and therefore for that reason subject the judge to private liability, is to say that courts and judges must decide questions of jurisdiction at their peril. Such a doctrine would, in a large measure, destroy the independence of the judiciary and take away the immunity and privilege considered so essential and necessary to the proper and just administration of law.’

In the later case of People v. Doe, 226 Mich. 5, 196 N. W. 757, 758, a witness in a one-man grand jury proceeding, conducted by a circuit judge, was held to be properly...