Weir, In re, 339
| Decision Date | 09 March 1955 |
| Docket Number | No. 339,339 |
| Citation | 69 N.W.2d 206,342 Mich. 96 |
| Parties | In the Matter of Arthur WEIR. |
| Court | Michigan Supreme Court |
Petitioner in pro. per.
Frank G. Millard and Edmund E. Shepherd, Lansing, for the State.
Before the Entire Bench.
Petitioner Arthur Weir (also referred to as Arthur J. Weir and hereinafter referred to as plaintiff) filed a petition for writ of habeas corpus, reciting that he was confined in the State prison of southern Michigan at Jackson, Michigan, by virtue of an illegal conviction, upon a charge of embezzlement.
In this petition said Arthur Weir claimed that he was extradited from the state a California on a warrant charging larceny by conversion; was tried by a jury and the jury could not agree, on which account that case was dismissed. Plaintiff then by complaint on charge of embezzlement was convicted by jury and sentenced, and complains of the sentence as illegal and not in compliance with the statute. Plaintiff further claims that he had been tried for the same offense, namely, as larceny by conversion but in substance that the charge on which the jury disagreed was for the same offense for which he was afterwards convicted. Plaintiff claims the benefit of the constitutional inhibitions concerning former jeopardy as well as claiming that his sentence imposed was not in conformity to the statute concerning indeterminate sentences.
The sentence under which he is now being confined in state prison is as follows:
'State of Michigan
'The Superior Court of Grand Rapids
'At a general term of The Superior Court of Grand Rapids, continued and held at the court room, in the City of Grand Rapids, County of Kent, on the 18th day of May, A.D., 1953.
'Present, Honorable Thaddeus B. Taylor
'Judge of the Superior Court of Grand Rapids.
'The court here opened for business in due form.
'The People of the State of Michigan
vs
'Arthur J. Weir
'In this cause, an information having been duly filed, charging the said respondent with the crime of
'Embezzlement
'and said respondent Arthur J. Weir, being on motion of the Prosecuting Attorney of the County, arraigned at the Bar in open court for sentence, and having there been asked by the court whether he had anything to say why judgment should not be pronounced against him, and answering briefly;
'Therefore It Is Ordered an Adjudged by the court not here that said Arthur J. Weir pay damages of $11,000.00 and costs of $1000.00 and in default of same to be confined at hard labor in the State Prison of Southern Michigan in this State, until the same is paid for the period of not to exceed ten years, from and including this day.
'Thaddeus B. Taylor,
'Judge of the Superior Court of Grand Rapids'
The assistant attorney general concedes that the sentence imposed is erroneous, and quotes in part from the statute as follows:
C.L.1948, § 769.8, Stat.Ann. § 28.1080.
We determine that the sentence imposed was not proper under that statute and did not fix a minimum term. We further determine that plaintiff Arthur Weir should be discharged from custody under the sentence imposed. He is subject,...
To continue reading
Request your trial
-
State v. Courtney
...of a pretrial dismissal following a mistrial and a midtrial dismissal that may occur during the second trial); In re Weir , 342 Mich. 96, 99, 69 N.W.2d 206, 208 (1955) ("The dismissal of the former prosecution ... following disagreement of the jury is not to be considered as an acquittal ei......
-
People v. Hall
...in double jeopardy where the jury cannot agree on a verdict. People v. Duncan (1964), 373 Mich. 650, 130 N.W.2d 385; In re Weir (1955), 342 Mich. 96, 69 N.W.2d 206. With regard to the defendant's contentions as concerns the line-ups, we must first say that since the line-ups in question her......
-
Le Mire, In re
...nunc pro tunc, and that defendant is not entitled to discharge from confinement thereunder is abundantly clear from In re Weir, 342 Mich. 96, 69 N.W.2d 206; In re Allison, 322 Mich. 491, 33 N.W.2d 917; In re Vitali, 153 Mich. 514, 116 N.W. 1066; In re Richards, 150 Mich. 421, 114 N.W. 348; ......
-
Elliott v. Michigan Dept. of Corrections, 247
...The life sentence was legal and there was no occasion to 'correct' it, as in Re Allison, 322 Mich. 491, 33 N.W.2d 917, and In re Weir, 342 Mich. 96, 69 N.W.2d 206. The action taken by the court December 3, 1952, was a nullity. People v. Fox, 312 Mich. 577, 20 N.W.2d 732, 168 A.L.R. 703. The......