People v. Zwierkowski

• Decision Date: 01 October 1962
• Docket Number: No. 53,53
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Donaid ZWIERKOWSKI, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 179

117 N.W.2d 179

368 Mich. 56

The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Donaid ZWIERKOWSKI, Defendant and Appellant.

No. 53.

Supreme Court of Michigan.

Oct. 1, 1962.

Lester N. Turner of Sinas, Dramis, Brake & Werbelow, Lansing, for respondent and appellant.

Frank J. Kelley, Atty. Gen., Eugene Krasicky, Sol. Gen., Leo A. Farhat, Pros. Atty. for Ingham County, John R. Dethmers, Asst. Pros. Atty. for Ingham County, Lansing, for plaintiff and appellee.

Before the Entire Bench, except CARR, C.J., and DETHMERS and ADAMS, JJ.

KELLY, Justice.

Appellant herein was arrested on a charge of breaking and entering in the nighttime, was found guilty as charged, and on September 9, 1960, was sentenced to not less than 5 years nor more than 15 years imprisonment. He brings this appeal claiming that the trial court erred (1) in holding that the facts presented were sufficient to allow the nighttime element of the corpus delicti to be inferred; (2) in allowing the extrajudicial statements of the defendant to be admitted before all the elements of the corpus delicti had been shown; and (3) in allowing into evidence a confession made by defendant to the police after he had been held for 5 days without being taken before a magistrate.

Sometime between 11:00 a. m. and mid-night on May 29, 1960, a Lansing Michigan, house was broken into and certain items taken therefrom. On June 10, 1960, defendant, a 17-year old boy, and one Gerald Moss, 16 years of age, were taken into custody at Battle Creek, Michigan, by the State Police on information furnished to them by the Lansing police in regard to the crime. It was later learned the boys were escapees from the Boys' Vocational School in Lansing.

Five days after the arrest by the Battle Creek police, the boys were brought to the Lansing police station and after being questioned both in the morning and afternoon by the Lansing police both boys signed a confession to the crime of breaking and entering in the nighttime. That afternoon complaint and warrant were issued and they were arraigned by a magistrate. Defendant demanded examination and bond was set. An attorney was appointed. Jury was waived by defendant, and trial was had on August 25, 1960. Sentence was imposed on September 9, 1960.

Evidence introduced by the People tended to prove that a breaking and entering had taken place at a dwelling which was situated among other dwellings but which had surrounding it a large area of vacant land, the rear portion of which was shielded by bushes. The evidence of the breaking and entering showed an 'L' shaped cut, about 12 by 12 inches in size in the screen door on the back porch and that the door leading from the porch to the kitchen had its latch completely broken off.

In order to establish the exact time the breaking and entering took place, the People offered and the court received into evidence (over the objection of defense counsel), the written confession of defendant, which read in part:

'Q. Could you give me that approximate time that you entered the house on Clark St.?

'A. About 10:00 o'clock at night.'

Defendant contends that such extrajudicial statements cannot be used to show an element of the corpus delicti but may only be used to connect the defendant with the crime once the corpus delicti has been proven by other evidence.

In overruling defendant's objection that defendant's statement could not be used to supply the missing nighttime element of the corpus delicti, the court said:

'I think the prosecutor has shown the corpus delicti, and I think he has shown it because I think it is contrary to good sense to say, having in mind all the circumstances here with relation to the way this house sat relative to other homes in the area, and the way, or, the condition in which the door was found, it seems to me it is contrary to good sense to say that when these people left and locked their house at about noon and then returned the following day and found it...