*1 307 V. GRIPPES. PiiOl'LJi LU68] Opinion the Court. of to the trial case remanded and the vacated ordered with this consistent proceedings for further opinion. concurred. J., H. J. J.,P. Gillis,
Fitzgerald, NO. 1. BURD PEOPLE of Court. Charges of —Constitu- and Information —Notice Indictment
.1. tional Law. under State Constitu- prosecution in is entitled criminal Accused proceeded against under an information which with tion to be charge particular degree certainty spеcifies a fair (Const scope prosecution against him and fixes 1963, 1, 20). art § 2. Same —Amendment. day trial, in- people, to amend Granting on of motion felony breaking entering to describe the formation property malieious destruction of in intent to commit with original complaint alleged $100 was error where exeess lareeny breaking intent to commit magistrate probable defend- found cause tо believe return of guilty further reference without ant to intent. [2] [3] [4] [1] [5] [6] [7J [8] [9] [10] 41 Am Jur 41 Am Jur 41 Am Jur 41 Am Jur 41 Am Jur 21 Am Jur 13 Am Jur 5 Am Jur Am Am Jur Jur References 2d, 2d, 2d, 2d, 2d, 2d, 2d, 2d, Burglary 2d, 2d, Criminal Law Indictments and Indictments and Indictments Indictments and Indictments Criminal Law Indictments and Indictments for Points 24 et and Informations and Informations Informations and Informations §442 §§ Informations Informations Informations seq. in Headnotes et 779. seq. § § §§ §§ §§ § 69. 179. 177. 302. 171, 19, 20. 196. 174. Apr 13 Knowledge of Defendant. 3. Same —Defect—Actual allowing an amendment to judge erred Trial grounds day on that he believed of trial that defendant knowledge gained of the true nature of the only preliminary proceedings, because *2 charg- information degree eertainty ing a fair of the crime with satisfies consti- requirement apprised accused charges tutional bo of 1, (Const 1963, 20). against him art § Charges. Amendment—Change 4. Same — in permitting to criminal Statute Amendment information does not permit changing authоrize the court offense charges by way making new of (CL 1948, or amendment 767.76). Defect—Objection—Jurisdiction—Waiver. 5. Same — Objection by defense to amendment of information at trial vras challenge defect sufficient information and lack of request continuance or rearraignment reexamination and a waiver of jurisdiction, cannot constitute court’s lack of whieh is limited to the crimes included within the return of examining magistrate. Information—Preliminary 6. Same — Examination. against any person any No information be filed offense person preliminary until such shall have had a examination provided by law, on that offense as or shall have waived examination.
Dissenting Opinion.
Quinn, J. Preliminary Magis- Law — Examination —Return Criminal 7. Jurisdiction—Charges. trate — magistrate, jurisdiction while it Return on circuit confers against court, does not contrоl since filed prosecuting attorney may any charge an on file information long by preliminary disclosed examination as as it is based preliminary on the same transaction which the examination on held. Entering. Breaking 8. Same — statutory brealcing entering is the same offense of brealcing commit intent whether the is with 1948, felony specified) (CL (to or some other 138). §750.110, 1984, as PA No amended No 1. Burd, Amendment—Prejudice. Indiсtment Information — 9. correspond to criminal to make Amendments preliminary examination be allowed disclosed should facts prejudice is no to a who was reason- where there proceedings ably apprised the nature of charge. Appeal Law — and Error —Harmless Error. 10. Criminal appellate An error should reverse conviction unless miscarriage justice (CL was such would work a shown 769.26; 1968, 529.1). GGB Appeal (Stuart), from Sub- Kent, Hoffius J. Rapids. mitted March at Division Grand (Docket September 3,655.) No. Decided breaking and
Keith E. Burd was convicted of occupied dwelling with the intent property over to commit the malicious destruction appeals. Defendant Reversed. value $100. *3 Kelley, Attorney General, Robert A. Frank J. Derengoski, Miller, K. James General, Solicitor Attorney, Prosecuting Venema, Assistant and 8. J. Attоrney, people. Prosecuting for the appeal. Bunn, Bunn, Russell <£ order case under an J. This arises McIntyre, delayed application appeal. granting an for a was filed an information On October breaking the defendant herein occupied dwelling with the intent Michigan contrary larceny therein, to commit a § entered An order was Annotated 28.305.* Statutes expense appointing at counsel for the petitioned appointed people. so Counsel (Stat [*] Properly Ann 1968 Cum CL Supp § 750.110, 28.305). as amended by PA No 133 App Opinion op the Court. and the re- examination, cause was police city
manded to the Rapids court for the of Grand purpose. transcript for this The complete objections concerning examination is not and discussions assistant relating to motion made рrosecuting attorney, Mr. Stevens. people proceed any “Mr. Before the Stevens: further in entering. matter, this complaint warrant in this case apparently were drawn the old 28- statute, under and refer with intent to commit crime of .305, larceny people move therein. The at this time complaint amend the and warrant. would We move larceny superfluous to strike the the intent to commit a motion). word and amend complaint say simply warrant with the
felony, (discussion regarding proceed “The Let’s on the basis Court: that there charge.” is no concerning This constitutes entire record complaint motion to amend the and warrant, and any objections or discussion which have taken place concerning that motion. testimony following
At the conclusion of the place: took people “Mr. at Stevens: The move this time that respondent having- trial, be bound over for proved occupied George been that the residence of damaged already,
Plafkin to the extent of $600, repairs incomplete, with the and malicious destruc- property felony. tion of It excess of one $100 also has been shown that the front door was broken respondent prem- in and the within was fоund *4 certainly probable ises. that On basis there is cause guilty damages to believe he was of the found on premises the I and move he be bound over trial. [Arguments] Btjrd, No op the Court. I think will bind this Gentlemen, “The Court: good argument Dilley a I realize Mr. has case over. prevail. that a It does seem crime was that probable cause to the at least believe committed respondent [Discussion commit thе crime.” did as $1,000.] to bond—reduced magistrate filed his on December return “breaking finding that crime of and enter- the dwelling”
ing occupied been committed and — respond- probable to believe the that there cause citing guilty of no offense, ent the commission requiring statutory designation, and defendant the Rapids appear court at in the circuit Grand 17, 1965. December complaint accompanied
A the return warrant police the in the following words: feloniously, unlawfully, “Keith bur- Burd did occupied dwelling glariously break enter the George building Plafkin, intent to of with the contrary larceny of to the therein, commit the crime provisions tated, Michigan Anno- 28.305, of Statutes * * *” amended, a of the calen-
Someone—and careful examination transcript, does not entries, dar the and the file, pen persоn identity a indicate that —drew larceny” though line “commit the crime of words felony”. phrase, the word “a and inserted over complaint This alteration was made both in the warrant. In the course justification question a examination, in prose- jjolice objection by officerover assistant attorney stated: cutor, questioning point tois this Honor, “Your intention determine, all, first of matter therein,” to commit *5 Arp 307. 13 Mien Opinion op the Court. Whereupon the said: Court on that
“Go ahead basis because would like to this situation is.” know what brought On December the defendant was accompanied by circuit court, before the his counsel. After some remarks, the court asked whereupon deputy that the information read, prosecutor read as follows: day “It is that: on the 26th of October, city Rapids, county 1965, at the of Grand of Kent, unlawfully, feloniously burglar- Keith Burd did and iously occupied dwelling-house break and enter the George building of Plafkin, with the intent to com- contrary mit the crime of therein, to the provisions §of 28.305, Ann, Stat as amended.” respondent plea mute, stood and a of guilty was on his entered behalf. Trial was set jury before the on 14, March 1966. 11, On March days 1966, before commencement of the trial, prosecuting attorney the officeof the filed written striking motion amend the information, word “larceny”, adding and “with intent commit a felony”. hearing That for motion was noticed on Monday, day March 14, 1966, which was the for the commencement of trial. with Piled this motion 1966, March was a document entitled, “amended proceedings by pertinent part information”, the of which reads as follows: prosecuting attorney “James K. Miller, county Kent, of aforesaid, in behalf of people in here to understand and be Michigan, of court, State comes into January gives thereof, term A. D. informed, that on the day Rap- city 26th October, 1965, of at the of Grand county unlawfully, ids, Kent, Burd, Keith did feloniously burglariously enter the break and 1968]' No Piooplb Burd, op the Court. building George occupied dwelling Plafkin, felony therein, commit a to-wit: intent to property, con- over destruction Malicious $100, trary provisions Michigan § 28.305, of ** * amended, Annotated, as Statutes people against peace dignity of Michigan.” State *6 transcript commencing 14,.
The trial on March, upon opening and court, indicates that the prosecutor jury, an in the assistant absence amend information “to conform to the moved to the pre- prosecuting attorney at the motion made liminary the asking chаrge” of this' and. exáminátion filing the infor- the court to allow the amended attorney the mation that time. The defend- at pro- copy a that had received the ant stated posed he day”, he “the other and amended information amending objected on the the of the information to preliminary con- the examination was that basis prosecution original “on that the ducted idea prove committing going was to the intention of premises.” trial then re- court preliminary transcript of the examina- ferred to the following statement: tion and made the prosecutor right. Mr.' Ste- “All At that time the lar- Sve to vens, said: would move strike .word complaint’and ceny superfluous amend the say simply, to commit' the intent warrant to felony.’ that Mr. I the circumstances think under apprised here claims involved been Burd has disрute as which I no am that there sure is dealing are It that we isn’t incident is involved. They contemporaneous are incidents: with several your deny objections and I will date. all the same Mr. grant I ask that motion amend and will arraigned at amended Burd be this time.” App 13 Míen [Hopt. Court.
Attorney the defendant pointed out to the trial that judge transcript incomplete ivas since the discussion regarding the motion cоmments made on the matter were not set forth in the tran- The tidal script. then said: “All I don’t right. any like more than do you the fact that we don’t have a full and complete transcript of each and every incident that takes place the lower I court. am aware too that quite has been customary frequently the court even we suggests off the go record on this particu- lar matter or like something that. The purpose examination purely simply apprise the respondent of the basis upon which the complaint and warrant are issued and to deter- mine whether there probable a crime cause probable committed and cause that he committed the crime. If he has had to hear opportunity the evidence, it seems to me the matter of the grant- of the motion to amend ing is a matter of discretion with the lower court in the granting that motion at that time and I I think vmuld not find abuse of discretion. Accordingly, objections feel will *7 be denied. think he should be arraigned.” for the
Attorney thereupon waived the of the reading amended information and indicated the respondent would stand mute. The court en- tered a plea of not guilty behalf. The jury his was then called in, the case tried, wras and the de- fendant found guilty charged.
The sоle issue before court upon appeal whether the trial court had jurisdiction a over crime charged the amended information. The defend- ant contends that jurisdiction was lacking because the crime the amended information was the one for which he was bound over by examining magistrate. This court must answer the contention of the defendant is correct. Burd, Puoimn v. No 315 Opinion op the Cоurt. all matters and to all be noted that in It must against charges preferred the defendant in the con prior proceedings trial, to the defendant stood fused mute and therefore waived
none error which preliminary proceed accumulated in the have jurisdiction ings, admitted neither right challenge he nor Avaive trial court did (1936), v. Dochstader information. the Mich 238. People pro- I, Article Constitutiоn rights prosecu- an certain in criminal vides tions, accused right among be informed which the accusation. is entitled the nature of He against proceeded under an information Avhich with specifies degree particular certainty fair a charge against scope him and which fixes the made prosecution. of the Mich 1. (1941), Brown Keith E. the trial court on Burd stood before ready an March trial оn breaking charging him an occu- Avith pied dAvelling the crime house Avithintent to commit into read the record therein, arraigned 1965. A AAfhenhe Avas on December that the in- of the record indicates careful review formation upon complaint warrant, a based Avas by pen interlineation, a ink amended that he did occupied dAvelling break and enter an felony therein, and a intent to commit finding prob- mаgistrate certified return of guilty that the Avas able cause to believe of an described as offense dAvelling occupied Avithout further reference statutory designation. The mo- to intent or
either day people of the trial to amend tion of the on the felony which the describe mov- the information to par- prove late, too ant ticularly that he could came believed objеction timely in vieAvof the *8 Apr 31(5 Mioir rara Coret. granting of this defense counsel. the trial court was error. motion upon chronological clear a meticulous review It is granted entire record that the motion was the trial court believed that the defendant because knew the nature of the and as counsel true his prosecuting in author- the mind of the existed ity, “I think the circum- said, court under apрrised that Mr. Burd has been stances satisfy enough involved.” This is not here claims faulty requirement. quashing In the constitutional Michigan Supreme Court said information, People supra (p 4) : Brown, say, possibly might “It will not do to be said in clearly case, the instant that the accused knew what having with He offense he was committed. proceeded against an infor- is entitled to be mation which with fies which under speci- degree сertainty a fair particular charge against him and scope prosecution.” fixes argued proceedings It that the of the trial upon quash were not a motion to the infor- amend the infor- a motion mation, but rather on spelled an offense not out its mation to state entirety examining magistrate. in the return of the permitted acknowledged It that such a motion is is (Stat provisions Ann 1948, 767.76 under the of CL 28.1016). not аu- But this statute 1954 Rev does changing permit thorize the court to way making charges by new nor the offense amendment. People (1932) Mich v. Sims with one 481. An the intent to commit charging breaking totally different from one intent to commit an undescribed with the defining felony, an information without further fatally felony, v. Wester- defective. *9 317 Pjcoplb Euro, No 1. v. Opinion op the Court. objection Mich 647. The 274 berg (1936), in the on behalf of the amendmеnt sufficient; the fact that defendant trial was reexamination and or a continuance request did as a waiver of he considered cannot rearraignment v. jurisdiction. People court’s lack the circuit be- Mich 200. This is so 283 (1938), Monick circuit court is limited of the the jurisdiction cause exam- the return within the crimes included v. People said As the Court ining magistrate. Monick, supra (p 199): the return we should assume though
“Even fоr which the defendant an the crime offense, stated amended information under the convicted was not set forth trate, plaint magis- examining return of the com- reference to the by or expressly either here, where, At least and warrant. aas part in the statute which is included intent the merely an from intent and distinct separate offense in- such prohibited, acts physical to do an return it is included in the because must be tent v. Stew- offense, People ingredient essential art, of such intent allegation 44 Mich from that which is stated offense a different up sets The amendment an allegation. without such an allega- circuit court to include in the information the act was intent with which the larcenous tion of which crime than that a different charged committed return, his namely, included in justice examining The circuit destroy a safe. to break attempt no over the crime therefore, jurisdiction court, v. Doch- People information. in the amended stated Hudson, App 35 Cal stader, supra, People Pac 719).” (169 person filed against any he No have had shall person until such offense any as provided therefor examination such examination. have law, shall waived or App Court. supra. did not The defendant here Dochstader, v. have ing an on formal break- examination occupied dwelling prop- intent commit malicious destruction erty $100, as in the valued in excess of intelligently nor did he waive information, amended examination. such
Reversed. P. concurred with J. J., McIntyre,
Holbrook, (dissenting). Quinn, J. with the agree cannot *10 opinion. majority transcript preliminary examination of the
The entering breaking the crime and discloses that prop сommit malicious destruction of with intent to erty over the value of established and $1001was probable to believe that there was cause complaint crime. The fact that committed the and the charged breaking entering with warrant larceny in intent to commit is irrelevant view of (Stat §§ Ann 1954 1948, 766.4 and 766.13 Rev CL 28.931). provides, §§ The former 28.922 and * * * “* * * regard examine in shall regard any offense other mat- the magis- charge which ters сonnected with such such pertinent.” (Emphasis may added.) deem trate provides, latter The appear magistrate upon it to the
“If shall the whole that an matter, examination of cognizable offense not by justice peace has been com- probable mitted and there cause for is magistrate shall therewith, said forth- apjiear such defendant to the cir- before bind 1968 Cum [1] CL 1948, Supp § 750.110, § 28.305). as аmended by PA 1964, No 133 (Stat Aim No Burd, v. 319 Peopijs Dissenting Opinion by Quinn, J. county any having juris- court of such or unit cause, for trial.” of said diction magistrate jurisdiction confers return The People (1948), v. Funk court, circuit on the does not control the filed 617, it but Mich prose against cuting attorney court, in that a defendant since any file an information on by charge People preliminary examination, disclosed (1903), long 132 Mich v. Karste so upоn same on the transaction which it based is People (1865), v. Annis held, examination was this Mich 511. If the information filed on return charged breaking entering with intent to property over $100, commit malicious destruction of good. -would been The fact that the infor have charged breaking with intent mation change larceny does result view to commit judge amendment trial before allowed trial. under same whether
The offеnse the statute to commit with intent (to felony specified). or other provisions (Stat Ann 1954 Rev 767.76 CL 28.1016) allowed amendment since authorized the rights preju- were I do not believe the of defendant (1943), thereby, Watson diced present at 596. Defendant and and counsel were *11 his participated examination which in the amended disclosed the offense information. (Stat 28.1096) Ann Rev
If CL 769.26 grant or control denial and DOR 529.1 are to Winegar appellate relief, outlined (1968), case affirmed this must be I so vote.