*1 .131 1968] v. ColliNs. COLLINS.
PEOPLE op the Court. Appeal waiver—Guilty Plea — and Error. Law — 1. Criminal charge lodged against a defendant a formal Error only it is procedural waived prosecution is criminal eharge. entry plea a op Miscarriage Justice. Error — 2. Same —Procedural does not result in a ease which Any procedural error criminal ground for new miscarriage justice not a trial in a 1963, 529). 1948, 769.26; GCR (CL reversal of conviction § Guilty Second-Degree Eirst-Degree Murder — Murder — 3. Same — op Miscarriage Justice. Plea — who will not be accorded defendants trial or reversal New seeond-degree pleaded to reduced perpetration prosecution in a miscarriage in a robbery, because the has resulted pro- justice, as there have been is sinee such error may complain only people only and one which cedural 750.316, 750.317). (CL §§ in Headnotes References Points [12, [5] [7-9] [10] [II] [I] [2, [4] [13] [6] 3] ments and 21 21 Am Jur 27 5 21 53 21 5 Am Jur Am Jur Am Am Jur Am Am Jur Am 21 Am Am Jur, Jur, Jur, Jur Informations 2d, Criminal Law 495. 2d, Jur Indictments 2d, 2d, Appeal and Error 2d, Trial Trial 2d, Criminal 2d, Appeal Criminal Criminal § Criminal Law 286. 747. and Error Law 218. and Informations § Law 124. Law §§ 187. § § § § 492. 778. § 545; 496. § 187. 27 Am Jur, Indict- Mich 131. Opinion.
Separate Appeal and Error —Amended Information —Criminal Law— *2 Homicide —Motions. that trial court committed reversible error Claim of defendants by granting prosecutor’s motion to amend the to information charge second-degree murder rather than murder merit, supported Reid, without where counsel un- defendants’ reservedly by prosecutor’s motion and then stood their pleaded guilty second-degree when sides each defendant of (CL 1948, 7SO.$16,750.$17). murder §§ Criminal Law —Justice. 5. country present danger time in this there more At is subjected escape justice criminals will than that will be tyranny. to Appeal Saving and 6. Error — for Review —Motions— Question Criminal Law —Homicide. defendants, charged first-degree murder, Acts and their of counsel, supporting prosecutor’s to motion amend the in- by setting charges the reduced second- forth formation of degree murder, plead charge their readiness to to the reduced failure, counsel, and with the advice their when their of plea presented motions to vacate and set aside conviction were circuit, question to raise the whether the trial court of by consenting erred a motion to to amend information n amendment, when evidence not warrant did such and their court, omission to raise that at in circuit time Appeals question open the Court with no meritorious left of except (CL 1948, review on motion the Court of itself §§750.$16, 750.$17). Guilty — Eelony — — — Homicide Criminal Law Plea Murder Robbery.
Guilty pleas by provided of defendants necessary application all the evidence that was although rule statute constitutes murder committed perpetration robbery degree, in the as murder in first degrees does it not exclude lesser all the evidence warrants if (CL 1948, §§750.816, 750.S17). . Guilty Merger. 8. Criminal Law — Plea — accused, voluntarily pleads charge An when he to a set people’s plea accepted and is his forth information court, laid, provides admits the all evidence v. ColliNS. sentencing, thereby requisite and previously waives all objections proceedings up available which led to and legal merged plea. in the result became his Guilty —Conviction. 9.Same —Plea purpose A a mere differs effect from extrajudicial confession; admission or an it a con- itself viction.
Dissenting Opinion.
T. M. Souris, Adams, JJ. Principals 10. Criminal Law —Accessories —Statutes. principals The distinction between accessories and to crimes (CL 1948, 767.39). has been abolished statute 11. Same —Common-Law Murder —-Information. charging simple A the common-law essentials information jury may laid, any degree and the convict of proof which the establishes. Acceptance op Guilty Second-Degree 12. Same — of Plea Mur- *3 Pirst-Degree der — Murder. guilty Acceptance two to of of of defendants of second-degree prosecution murder committed during robbery accomplice armed store in which a third employee error, held, hilled an the store owner where record guilty shows that were two murder it be would if degree (CL 1948, 750.317). §§750.316, the first
Dissenting Opinion. Kavanagh
T. M. Adams, and JJ. Policy. 13. Criminal Law —Public contrary public policy anyone It to imprisoned to have clearly guilty charged against precise is not who crime him. op Guilty. 14. Same —Plea judge may plead guilty A not allow a to a crime defendant he which cannot be wider the and the law. facts Appeal Appeals, from order of Court of Divi- Kavanagb McGregor, sion 2; P. Qninn, J., T. G. and denying appeal JJ., delayed leave from take 380 Míen 131. A.), (Stewart De- Submitted Newblatt
Genesee, (Calendar No. No. Docket 7, 1967. cember 51,626.) 1968. March 4, Decided pleaded guilty Collins Collins and Eddie
Alfred second-degree Mo- murder. convicted of pleas, convictions, and aside to vacate set tions delayed appeal Application for new trial denied. to appeal Appeals denied. Defendants the Court granted. Affirmed. on leave Attorney Kelley, A. General, Robert Frank J. Derengoshi, Prosecuting Attorney, Leonard, F. Robert General, Solicitor Donald Kuebler and A. Prosecuting Attorneys, Miller, Jr., Assistant Paul G. people. for the Garber,
Perlman & for defendants. BreNNAN, Both in this case were defendants attorneys they appeared represented by when time, At there was court on about counsel and the court discussion between legal could of whether these defendants second-degree properly murder. be prosecutor information be moved an amended charging defendants with filed, these joined murder. Counsel for both of these defendants prosecutor’s the informa- motion to amend so permitted information tion. The court thereupon accepted pleas of amended, charge. the amended both defendants *4 they not Defendants claim that now They claim that of murder. murder. have been should They case was com- claim the homicide in this commiggÍQnqf process armed of the mitted ColliNs. Opinion op the Court. robbery, § and that therefore, under CL 750- (Stat 28.548), .316 Ann 1954 Rev the murder is degree. defined as murder of the first appellants’ Even if stated contention were sound, which we need not the result determine, would have (if any) to be the same. An error in the formal charge lodged against procedural a defendant is only. entry It is waived of a thereto. regard Furthermore, this Court will not as the a any basis for new trial or reversal of a-conviction procedural error which does result in a mis carriage justice. of GCR 1963, 529; CL 769- .26.* any miscarriage justice,
If there is of under these only people circumstances it can be one which the Michigan of the of State have exacted an insufficient penalty. Putting way, it another if there been, has miscarriage justice, under these a circumstances, miscarriage it is a which ran to the benefit of the people. and to the defendants detriment of the Of miscarriage justice, only people such a can complain. Appeals
Court of order affirmed. J., and O’Haba, C. Dethmees, Kelly, Black, JJ., concurred with BeeNNAN, (concurring). guilty pleas defend belatedly every ants attack were entered with in- “plea agreements.”1 began dicium of After the trial * judgment 26. No “Sec. or he aside or re- verdiet shall set granted by any any versed or a new trial be court of this State case, ground criminal jury, on the or misdirection of the rejection evidence, improper admission or or for error as to pleading procedure, opinion matter unless in court, appear of cause, affirmatively after an shall examination the entire it miscarriage complained the error of has resulted justice.” III, part Agreements,” forth See “Plea Plea set Discussions and starting page Bar As- of the tentative draft of the American *5 380 Mich
136 Black, Opinion by jurors of 1963 and the selected prosecutor presently quoted sworn, moved by informing of murder leave to amend the court of the second rather than murder first 2 degree. by mani Each his own defendant, aided 3 by agree festly competent counsel, succeeded his avoiding motion in the risk ment the aforesaid mandatory Although life coun of a sentence. such unreservedly supported prosecutor’s motion sel by each and then stood their clients’ sides when pleaded guilty and later (repre was defendants sentenced, when each two by counsel) have us find that new now would sented reversibly granting the court erred circuit prosecutor’s accepting motion and such pleas. wholly allegation merit. of error is without day, eagerly
Besides, it waived below. Some was put publicly surely, such this will an end to Court expensive sport in and with criminal courts Michigan. sight. All is now not in But end separate presently our we can do write and record is appear influenced confess- below, convictions. Mine edly wholly fact that both defend- undenied (one joined the actual assassin James "Willie ants planning robbery Armstrong) of a armed grocery In that successful store. the course of small brutally proprietress, robbery Kelush, Ann dying in the store. and left shot country present is time in there more “At the justice escape danger will than that criminals Lumbard Committee. February New pamphlet, sociation Judicial CL CL York; 1948, 750.317 Project Minimum Standards for 1967 setting Administration, Washington Square West, New also § § 750.316 from the Offiee pages forth (Stat Ann 1954 (Stat Ann 1954 amendments recommended 2 and 3 of the December 33 of Criminal Justice Rev Key 28.549). Reporter. 28.548) Criminal 1967 Project, —Reporter. — by the Justice, supplemental Institute so-ealled issued York, v. ColliNs. subjected tyranny.”4 will be Some immediate today’s juristic restraint due of most incredible justice up doctrine, that criminal has been set having the benefit alone of those who, been accused felony according and convicted of to the forms of *6 incessantly tap courts law, thereafter for allegations determination of afterwitted of error, design prece- the more and more visible of which is society’s right dential erosion of to defend herself against criminal disorder. represented 1963 the two defendants, attorneys
respectively by Stipes and Robert Thomas appeared Norgren, trial court before the with the prosecuting attorney. opened proceedings prosecutor: motion please, people “At if the time, this court move permission court to file amended informa charging respondent in matter,
tion Eddie 5 Collins and Alfred the crime of Collins with degree. in the second granted, “In the event that this motion I have by respective [sic] been their informed counsels pleas these two defendants wish to enter charge.” proceedings
There is no need to detail further the judge which then ensued. The trial considered the carefully length motion and at Hav- the record. ing granted pleas it, of both defendants were granted, similarly submitted, considered, and at length on the record. Both defense counsel were present throughout hearing prominent took part say in the conduct thereof. To that the record 4 ago Holmes, 134 passage years 60 This was written odd Mr. Justiee Kepner dissenting (24 (1904), United States 195 US 797, 806, 114, 126). Today, America, 49 L ed S Ct reutteranee tragic thereof as here is so much understatement. 1963, 201.1, require parties designated GCR 785.1 Reporter. plaintiff: or defendant. — 380 Mich by Black, pleading
does not show voluntariness of in each in- deny fully reality stance is to communicated purpose providing thereof and subvert the for accused counsel persons public expense. at February appeared 1, 1963,both defendants before the court with counsel. Another careful record was made. Alfred was Defendant Collins sentenced to years.” “not less than 23 nor than more Defend ant Eddie Collins was to “not less than sentenced years.” nor more than 23 11-1/2 appendices The next event shown was filing, February of 1965, of motions coun- new sel the defendants set aside their convictions. assigned: These reasons and no others were “1. The heretofore entered in this voluntarily understandingly cause made. complex “2. In view of issues law and fact, respondent the examination of the at the time of such plea was not sufficient to determine whether or not *7 respondent the of crime.” judge opinion June 1965 the trial filed 15, an denying both motions to set aside conviction. Fol lowing 785.3(2),6 quotation reference to and of GCR opinion connectedly
the reads to conclu sion as follows: following “It tois be noted the facts in addition by
to others revealed the records. represented by “1. Both defendants were counsel pertinent times; at all pleas only “2. That the were entered after im- paneling jury; 6 If, through after judge the defendants counsel advised the that they plead information, wished to to procedure the amended the fol- by Judge lowed Newblatt in respeet comply failed some finical to with rule 785.3 as that rule stood the case clearly application is one for 785.3(4). both GCR 529.1 and GCR mandatory The latter read then and reads now: rule is but “This failure comply to jurisdictional.” therewith shall not be considered ColliNS. Ry testimony as to the third was taken re- “3. That spondent of homicide inas- the to determine pleaded guilty respondent third had the much as open murder; thorough prer a the record indicates “4. That by inquiry the court. sentence protesta- “Also is the so-called to be noted having by counsel as referred to tions been Alfred Collins innocence respondents by Eddie made Collins interpreted by the court were then holding protestations being their innocence of as surely is Mrs. Kelush. this intent to kill And the true. But when they participated in the fashion that during robbery which admitted in an armed specific intent that such lack slain, victim was slaying a Prom is not defense. committed be presence made their of counsel statements investigation by inquiry made and in the in the investigation, presentence including the court protestations only their had to do with of innocence planning intending kill or in innocence of claimed killing of Mrs. Kelush. respondent further did “It is to be noted pleas to withdrawn and statements their be not seek presence which counsel their made their were guilt, pleas only that their their but not established voluntary. were complied of the accused court’s examination
“The Although that a more it true the rule. interrogation thorough facts of the events preferable (and if to be taken would be procedure again, followed would such compliance court), with the rule and still there was nothing that the they record establish there is completely voluntary pleas or' that were not understandingly knowingly made or that were they *8 influence, com- of undue were made a result promise pulsion, leniency. under a fraud or duress, 380 Mich 131. Opinion by “Accordingly, Prevailing tbe motions are denied. signature counsel tender an should order court forthwith.” denying
An order such motions in circuit entered 28, June 1965. represented by 13, 1966 the defendants, such new raised for the first counsel, time main question sought now to be reviewed. That done
by application Appeals the Court for leave delayed appeal to take 28, the order of June question application 1965. The as follows: was raised in the erroneously “B. lower court to a consented prosecution motion to amend the information appellants with the crime murder degree, in the second when the evidence did warrant such amendment.”
April 21, Appeals 1966, Division of the Court of application by summary denied defendants’ order. granted application ap- "We peal defendants’ for leave to 29, December openly
The acts of defendants and their counsel in
supporting
prosecutor’s
motion to amend the in-
formations ; defendants’ understandable
readiness
plead
charges to the reduced
and with the
advice of such counsel; their failure to
raise
question they would now review when their motions
pre-
vacate
and set aside conviction in circuit,
sented
and their omission to raise that
question
at
time
all
circuit;
this left the
Appeals
Court
Avithno meritorious
except
review
on motion of the Court itself. See
point People
Sanford,
v.
252 Mich
248,
240,
People
Foley,
253;
v.
250,
361;
299 Mich 358, Pardee,
Millman,
13, 18;
v.
306 Mich
re
189; In
People Banning,
327 Mich
v.
That hypertechnical question leave undecided the de applicability raise as to of the rule of fendants People Mich Treichel, 229 a rule which this 303; v. applied An and later in followed Court agree drus, 543, 331 Mich I with the 535, attorney prosecuting that Treichel authorized what prosecutor, everyone judge, at time, trial proper included, and defense counsel deemed well as procedure. present commendable As for the cavil, operative only the rule of Treichel is “if evidence warrants” that no evidence re and was warranting ceived pleas circuit the amendment and say it is that the un thereunder, sufficient to pleas fully safeguarded guilty both reserved provided requi all the evidence that was defendants site to application ac Treichel’s rule. an When voluntarily pleads guilty charge cused to a set forth people’s accepted information and his duly by pro admits as laid, he court, requisite sentencing,7 all evidence vides thereby objections previously waives all available up proceedings merged which led to and became plea. legal doubly This is true in the result of his throughout proceed him counsel attends such when ings. appropriately
An terminal comment crim- long ago by appeals like one written inal Bentham: 7 purpose from ad plea of differs and effeet a mere “A extra-judicial confession; it is itself conviction.
mission jury required; is not of a it is conclusive. More Like a verdict give judgment nothing and sentence. Out has to do hut court just that a crime, courts persons accused of are careful consideration for voluntarily accepted made plea of not he unless shall consequences. understanding of proper full advice and with after Bayaud pleads may held United States v. When one so he he hound. States, 220, 223, 274 (CC), 23 Fed Kercheval v. United US 721.” 1012). 1009, L (47 Ct 71 ed S Mich 13l. [Mai. pains the law all the rogues know but did
“If men would have honest benefit, their has taken nothing own.”8 call their left could Jeremy. you rogues are well And now, know beginning to under- fast honest are assured that the rogues Ann Kelush learned stand. high life call her not even that she could from on her own.
I affirm. vote to (dissenting). are Defendants T. M. KavaNagh, pleas guilty serving prison a result of terms in as charge January a of second- on to 9, 1963, entered degree murder. February filed with the 15, 1965, defendants
On pleas and set their trial court motions to vacate requested a new trial. aside their convictions and judge. by circuit The were denied motions appeal application to the Court to An leave April Appeals for lack 21, 1966, of of a meritorious denied on This Court review. applica- granted defendants’ 29, 1966, on December appeal. Mich 745. to 378 tion for leave Armstrong were one James Defendants and pursuant murder, killing- charge permits a where which such statute1 robbery. participant during armed results Armstrong, actually robbed a who store .James charge guilty employees, pled one of the killed first-degree murder. Armstrong pled guilty 9, 1963, After attorney prosecuting amend the in- moved to against herein the two defendants filed formation charge change first- to second- so as Bentham, superin Jeremy published under the Works of “The (Vol. Edinburgh 6, Bowring, 1843” John of his executor tendence page 205). 28.548). 1948, (Stat Ann 1954 750.316 Rev CL § § ColliNS. Dissenting Opinion T.M. by degree This in amendment was murder. concurred judge. trial To the defense counsel and the pled guilty murder defendants sentenced. contend the trial court in
Defendants erred accepting pleas to murder their only degree, arguing they guilty of could be second no at first or crime 28.548) (Stat § § Ann 1954Rev all. 750.316 CL reads follows: perpetrated shall means “All murder which poison, lying other ldnd of wait, or or premeditated killing, or which
wilful, deliberate attempt perpetration, or be committed shall robbery burglary, rape, perpetrate any arson, degree, and shall be shall be murder first solitary punished by at hard labor in confinement (Emphasis supplied.) prison for life.” State (Stat 28.549) Ann 1954 Rev CL 750.317 as follows: reads murder of the “All other hinds shall be *11 by imprison- punished degree, shall second be and years, prison of or term life, in the
ment State trying the same.” in the of court discretion the (Emphasis supplied.) principals and between accessories
The distinction Michigan. 1948, in CL abolished to crimes has been (Stat 28.979). § This statute § Ann 1954Rev 767.39 as follows: reads “Every person of in the commission concerned directly act con- the commits he offense, whether procures, or counsels, aids,
stituting or offense the prosecuted, hereafter commission abets its punished as shall be and conviction indicted, tried (Em- directly offense.” such had committed if he supplied.) phasis 380 Mich Dissenting Opinion T.M.
The information for amended murder the sec- degree pursuant (Stat Ann ond CL 750.317 28.549) filed Rev and 9, 1963, read as follows: “Be informed that Eddie Collins and Alfred Col- day
lins, heretofore, to wit: on or about the 23rd year city of Genesee in the June, 1962,at Flint, of in'said county, feloniously, unlawfully, but not with premeditated and malice, calculated did kill and contrary Ann Kelush, one form of provided, the statute in such case made and and against peace dignity people and Michigan.” State The second contention of defendants is pleas ingly pulsion freely, were not made understand- voluntarily,
and without undue influence, com- promise leniency, and duress without a required by GCR 785.3, therefore their pleas should been have set aside and a new trial ordered.
Defendants’ third contention is that the trial court
convicting
erred in
the defendant Eddie Collins of
participant.
crime in which he was not a
The trial
permitting
court before
the amended
accepting
information to be filed, and before
pleas
guilty,
prosecuting
discussed with the
at-
torney
legal questions
involved. He concluded
People
that,
reliance
the cases of
Treichel,
People Wright,
229 Mich 303, v.
Mich
81, he
permit
filing
would
of the amended information
accept
pleas.
language
supra,
Treichel,
relied
upon by the trial court, which the court believed
accept
authorized it to
plea,
(p 307):
is as follows
“While the statute constitutes murder committed
*12
perpetration
in the
burglary
degree,
as in the first
People
ColliNs.
Dissenting Opinion
T.M.
degrees
it
loarrants.”
not exclude all lesser
does
the evidence
if
(Emphasis supplied.)
In Treichel defendants contended the trial court
jury
should have instructed the
to confine their de-
first-degree
and,
liberations to
if unable to
degree, they
in the first
convict of murder
must find
guilty.
defendants not
Of this
Justice Wiest
said
(p
307):
speci-
“The information
murder without
fying
or
method,
means,
circumstances, and,
or
degree,
under the
information, murder
either
might
manslaughter,
he found.”
(p 308):
Justice
further stated
Wiest
“We think the evidence
left
manslaughter
jury
and the included crime of
and the court avoided
instead
committed error in
submitting
so
Utter,
it.
In
We the information in the instant case charged statutory second-degree murder rather than common-law murder. Therefore, Case, the Treichel supra, charging and other cases common-lawmurder apply do not in this case.
We consider first the acts defendant Alfred against Collins determine whether the evidence him warrants a conviction of murder. participation up Alfred’s summed the trial judge sentencing at of this defendant if and, true, indicates murder: planned urged “You conceived, the commis- sion of this offense. I am convinced James holdup identity was chosen for the actual because his *13 380 Mich Dissenting T.M. Opinion by having yours, arrived lie known was not as well as only Ar Terrill, from three weeks before about gun you. the with kansas. He furnished was Market, Koenig his the lost nerve at
When James he was encouragement made to or even coercion plan the Kelush to continue Market continue to hold money. up get a store and some complete crime and Mrs. Kelush the was “When you the took store, was the the floor of $26 dead on Armstrong you gave then hack and and $4 $30 your Armstrong gave him and even back on turned something hap- you that had no aid after pened. discovered “My you is without crime conclusion that occurred; at all times, would have never plan the time of the formation of the until its execu- you kept at it was who Market, tion plan going. the Kelush “My guilt greater you opinion that moral is Armstrong, it the man who than pulled is on James Willie trigger.” Repke, People
In the case
v.
103 Mich
writing
(p 470):
Court,
for the
Justice
said
LonNg,
present
jury
is in
“The
case
verdict
degree,
first
and the
form
of murder in the
they
or
find,
the court that
must so
direction of
respondent,
proper
acquit
under the evi-
was
Any
than
other instruction
under
this,
dence.
very
would
shown,
facts
circumstances
have been
warranting
improper,
was no evidence
there
and no circumstances which
direction,
different
degree. was a willful,
It
deliberate
would lessen
by lying
perpetrated
wait,
statute
and the
murder,
degree.”
itself
fixes
People Nunn,
In
120 Mich
Justice
Long,
v.
(p 535):
writing for the Court, said
again
respondent
all,
at
“If
it was of
degree,
nothing
first
short of
murder in the
ColliNS.
Dissenting Opinion "byT.M.
Kavanagil,
jury
guilt
that. The
were left to determine his
properly
and the
innocence,
court
instructed them
guilty,
if
that,
in
found him
it
be of
must
degree.”
first
People Utter,
In
The Court further stated, after jurisdictions 88): (p of other jurisdictions “While authorities in other are entirely harmonious this we think reasoning supports foregoing sound views, which this Court in effect committed. Defendant statutory by
was murder, committed statutory acts and under circumstances declared degree, definition to constitute murder in the first testimony which the from which was confined with no evidence any a reasonable inference of other degree could drawn.” writing People Justice Court, Kelly, many H earn, v. Mich examined our earlier including cases, some of those mentioned above, and (p 474): concluded 380 Mich Dissenting T.M. jury grounds for the were no reasonable “There degree, guilty and there lesser of a
to find defendant was a total absence of that theory support the evidence to guilty offenses the included was defendant degree.” in the first rather than murder refusing not err in He to the trial court did held charge as to included offenses.
Justice Dethmers wrote for Court early reviewing Dupuis, Mich 395, also Dupuis including case was a the Hearn Case. cases, felony- charged under the defendant was where a homicide while murder statute2 when he committed in the held that since perpetration robbery. a Justice Dethmers charge against was defendant degree, jury’s announced in the first murder verdict charged” proper “guilty verdict. as jury to determine The failure of pursuant error the latter statute was not as part all statute defined robbery. perpetration of a committed in the judge summary we conclude of the trial Prom the Collins, if the defendant Alfred degree. first "We of murder in the murder, was accepting erred in the trial court his hold that *15 degree. in the second to murder of Eddie the acts of defendant now turn to We sentencing Quoting record on the the Collins. by Mr. made defendant, a statement was of this appointed Norgren, for Eddie Col- who counsel was part follows: in which reads lins, trigger- particular, “Armstrong was in who the mandatory imprisonment life and who faced man, nothing to in state- course, had lose sentence, of his sentencing, before and after course, both ments, of quote from his that he to statement I would like but perpetration in of one of the committed Homicide enumerated (Stat 28.548). 750.316 Ann 1954 Rev CL felonies. ColliNS. Dissenting t>y T.M. up picked police this to after lie and made the was page par- on of that 27, 1962, was made June statement. reference to ticular This was the events preceding were Armstrong holdup when Alfred the planning apartment particular in rob- this question: bery and he was asked this “ there conversation with Eddie Col- ‘Was holdup place?’ lins relative to this that was to take and the answer was: ‘No.’ “Then later on he asked: was was Eddie’s ‘What
part supposed to be?’ “ ‘Nothing. just just He went. He in the ” ear.’ thisOf and other trial statements the court said: Norgren participa- your Mr. has about “What said degree participation certainly tion and borne is probation out entire it’s borne out case; department report; completely. out it’s borne you passive “It’s unfortunate that do have personality you that have. It’s unfortunate and you this, this, sense led into course, degree guilt I think increases the of moral attached your Alfred; brother is older brother, personality, brother, older with a dominant who you pulled into This, this offense. is course, weighed weighed additional factor to be and was imposed in the sentence Al- Alfred, which subjected you fred has virtue of his incon- respect sideration and his lack for the law. You along; according went all but evidence actively participate; did case, not and as Mr. Nor- gren says, you I do know not whether would have actively participated you your had been asked, but certainly guilt much less than Alfred’s.” (Emphasis supplied.) conclude on
We this record that Eddie Collins could murder, accepting therefore trial court erred his *16 380 Mich J. Opinion T.M. Dissenting procured, he guilty. found that However, if it is of counseled, in the commission of or abetted aided guilty if it murder; he crime, is guilty no crime. he is found, so not is granted should, in each so we case, he A new trial appeal. other issues raised not need discuss judgments should be reversed of conviction The granted. trials set aside and new T. Kava- M. concurred with Adams, JJ., Sotjeis NAGH, agree (dissenting). with Justice I Adams, charged first were M.
T. Defendants Kavanagh. offenses of second- a crime that has no included with manslaughter. They degree then murder or which murder of guilty, being at the most acces could not have been guilty principal having pled to first- a sories and robbery. Because de in an armed judge bargain, may people a wish to fendant and accept cannot a crime of which defendant guilty! the law have been under in Edwards v. answered Chief Justice Campbell People (1878), he wrote: 760, 39 Mich when any public policy contrary to have one
“It is precise imprisoned clearly is who not charged against crime him.” may plead If a defendant offense— judge plea guilty accept or and if a can such a not, — judge matter how not, becomes the law. No judge conscientious and concerned a be—as judge undoubtedly a deci- trial was in this case—it is provides he law sion allowed to make. The (CL 28.1058]): [Stat 768.35 Ann 1954 Rev *17 1968] ColliNS. Dissenting Opinion by Adams, J. judge “And whenever said shall have reason to plea guilty, the truth doubt of such it shall he duty
his vacate the same, direct a of not guilty to be entered and order a trial of the issue thus formed.”
T. M. J., concurred with Adams, KavaNágh,
MULLINS v. WAYNE COUNTY.
Decision- of the Court. ' Highways Warning Signs Equally 1. — Divided Court. — Summary judgment for county defendant and its board of road wrongful commissioners death action administratrix of estate of decedent who drove his automobile off the end of a county private lands, road onto granted ground county negligence road commission are not liable in as a matter post of law for warning signs failure to suitable and erect a road, suitable barricade at the end is affirmed equally (CLS 1961, 224.21, court 257.610). divided §
Separate Opinion for Reversal. T. M. Kavanagh, Adams, JJ. Souris, 2. Officers —Discretion—Judicial Review. discretionary power granted Exercise or nonexercise to a of is not public body necessarily judicial immune official review. [2] [1] [5] [6, [3, [9] [8] 4] Pleading 43 Am 25 Am 25 Am 5 Am Jur 43 Am Am Am Jur, Jur, Highways Jur, Jur, Highways Jur, Jur, Highways §§ 2d, Appeal References Highways Public Officers 340-343. Publie Officers 258. and Error §§ for Points 416. §§ §§ 410, 411, 413, 414, 416, §§ 410, 411, 410, 411, §§ 258. in Headnotes 413, 414. 413, 414, 588; 902. Am41 Jur,