*1 v. Iaconis & Son v. ney Ryniewicz (1956), Mich 404. We are further persuaded that the contested evidence concerning the in changes the contract which result in ed the determination the contract had been abandoned and the the plaintiff cost to of building the bar were admitted. properly Minkus v. Sarge, supra. no There is showing that the lower court ruling clearly erroneous so as to require our reversal. GCR 1963, 517.1.
Affirmed. Costs to plaintiff.
All concurred.
PEOPLE IACONIS Delayed Prejudice. 1. Arrest — Arrest —Due Process — obtaining A an arrest warrant is not sufficient evidence process issue raise the of denial of due undeT constitutions, the state and Pederal since is not the it itself, prejudice resulting delay, but the evidence of process guarantee. that violates the due Delayed 2. Arrest — Arrest —Due Process. 165-day delay obtaining A against an arrest warrant defend- illegal possession marijuana deny ant for sale did not process the defendant due where the defendant was out-of-state period, for all but two weeks where the wanted keep identity informer in defendant’s case secret they completed investigation marijuana their in other where, participating, informer cases which the was also though claimed his even the defendant caused testify certainty alibi witnesses to be unable to presence defendant’s at their home when the crime was com- Beference Points Headnotes 2d, 5 Am Jur Arrest [1-3] §§ of alibi at two mitted, not rаise the defense did. preliminary exami- or at the was set times when trial earlier year his arrest. until a after waited nation but *2 by Danhof, J. Concurrence Delayed Process. Arrest —Due 3. Arrest — process. due 'an arrest violation A Joseph Appeal of Detroit, from Recorder’s Court February 2, 1971, A. Division J. Submitted Gillis, 9398.) (Docket 26, Decided March at Detroit. No. charged with unlicensed Iaconis was sale Samuel marijuana. illegal possession Information appeal. quashed. people and re- Reversed The instructions. manded with Attorney Robert A. Kelley, General, Frank J. Gahalan, L. Derengoski, William General, Solicitor Garnovale, Prosecuting R. Attorney, Dominick Reuther, Appellate Department, A. Robert Chief, people. Attorney, Prosecuting for the Assistant Barris, E. for defendant. Ivan P. J., Before: Bron- Holbrook Danhof, son, JJ. appeal by people leave of this J. Holbrook, trial court of the 1970 order 26,
Court the rehearing 1970, March which granting affirmed on quash informa defendant’s motion to charged with unli two counts him in tion which marijuana possession of and unlawful censed sale (Stat Rev contrary § Ann MCLA 335.152 § 18.1122), (Stat § Ann 335.153 and MCLA 18.1123). §Rev Iaconis knowledge proceedings
Because of the and facts proper is essential to a decision in this we case, quote verbatim the proceed- concise statement of the ings and facts as judge certified the trial con- cerning applicаtion for leave to appeal as follows: plaintiff testimony case this claims Mothersbaugh, of Prank a Livonia Police Officer, that the illegal defendant, Samuel made an Iaconis, dispensed possessed sale or marijuana on No- contrary § vember to 335.152and 335.153 CL as amended PA 1952No 266. “Testimony preliminary taken at the examination evidentiary March hearing 5, 1969,and 23, 1970, was as follows: Mothersbaugh “Prank came contact with Sam- work- uel when *3 ing police on the detail at the Detroit Race Course. pointed He was out another officer. “Mothersbaugh received from in- information quantity former would sell him Iaconis marijuana at a certain location which he later learned was in the of Detroit. pictures
“Mothersbaugh saw of Iaconis. On No- 8,1967, vember he to the Brunch’s Restaurant. went recognized He saw Iaconis the restaurant and nothing him. He said to Iaconis. building
“A few left later, minutes Iaconis Mothersbаugh and and accom- left. He followed panied to Iaconis’ automobile. auto- Iaconis The parked mobile on the front located on the lot, side of south the restaurant. passenger’s
“Iaconis unlocked the side of the Mothersbaugh vehicle. entered as Iaconis walked around the driver’s side and entered the vehicle. Mothersbaugh ‘Yes. said, said,
“Iaconis ‘Frank?’ you you Are Sam?’ said here are.’ ‘Yes, point, At this Iaconis reached a trash container into the vehicle front seat in the center of located bag paper portion removed a brown handed Mothersbangh opened Mothersbangh. bag it to and bags. paper white three smaller He observed bags plant contained a one of these observed mate- appeared marijuana. to be rial that Mothersbaugh. Fifty given $50 “Iaconis price. agreed prior dollars was police officers “There were four other to six restaurant. at the scene the area They had visual observation of the restaurant the automobile but not itself. the transaction parking’
“Mothersbaugh in another lot left the when he en- minutes from five vehicle. This was the restaurant. tered Michigan State Police Asiala of
“A Detective Mothersbaugh. right offi- followed behind two and at state met between the scene cers post. bag over to
“Mothersbaugh brown turned Mothersbaugh could Asiala at times. one these which not remember at time. get Mothersbaugh ten minutes “It took post police post. spent at the ten minutes He
state Livonia 15 minutes later. returned to his office time, At this recorded the events. independent recollec- had no that he “He testified He particular the transaction. tion of general He testified recollection. had a recol- remember or He did not as to details. *4 any design psychedelic on the defendant’s or recall in animal a car nor he recall or recollect stuffed did knew car. He the of the defendant’s back seat plate car the license on the defendant had Florida but did not get recall the numbers. or knowledge “Mothersbaugh independent of had no whether an electronic was used. device Iagonis Mothersbaugh “At the examination, stated (March 1969) attempts made or past year. sold him narcotics within the requested by “A Michigan warrant was the State prosecutor Police and recommended Wayne County April the dispens- 1968 for sale, ing, April possession marijuana and control of Municipal “The Honorable James B. McCann, Judge signed Livonia, warrant on the same date. “Testimony evidentiary taken at the aforesaid
hearing and following examination indicated the as why request prosecutor to before was made to the April 22, 1968: alleged pur- delay betwеen the date “The February chase and that three last due to the was fact case informer used in this also used in connected this informer. other cases requested period warrant in that “The was not Department the Livonia did because Police divulge identity want to a as there informer’s investigation on the cases. continuous other request on the other was made three cases the last Livonia Police De- partment. Legal procеedings were instituted these convictions were obtained. cases “From date of Iaconis’ warrant, requested the warrant was not the fact that due to specific location. defendant was Florida no proceedings No extradiction were instituted. “Mothersbaugh obtained this information week place. after the sale took about
“On or re- ceived information the defendant was back Michigan Florida warrant requested. “Mothersbaugh and thе state made an then attempt locate the defendant at residence on not found. Kendall in Dearborn. He was *5 704 op Opinion Court days and oth- later, or four “Three at the Hazel arrested Iaconis er officers state April 1968. 29, Track on Park Race Wayne County Court for the Justice file Municipal City of No Livonia, 5756, for the Court County Wayne Court file No 47099 Circuit and the shows following: R. McCann is- after Honorable James
“That charging the defendant with sale sued а warrant marijuana possession Novem- and and control of on arraigned April 22, 1968, ber Iaconis was 8, 1967, on plea guilty. April 1968 and entered a of not 29, May 1968. The de- for 7, was set “Examination adjournment requested attorney and fendant’s for day was set Examination rule. the ten waived May 1968. 28, adjourned May was examination “On request of defendant. July 1968 at the 16, until adjourned Au- then “The examination held and gust The examination 1968. 20, charges on the for bound over trial defendant was cоntained complaint and warrant. September return on examination 4,1968, “On Wayne County. Court for to the Circuit was sent for 1968, filed a motion 30, “Defendant, on bond which motion the reduction of defendant’s Joseph granted A. Sulli- Honorable before the Judge. County Wayne Circuit van, information was filed “An September charging defendant with 1968, controlling possessing dispensing, sale or marijuana. Septem-
“Arraignment pre-trial was set to the defendant ber 1968. Notice was sent attorney. nоtice addressed to stating address was no such was returned there Michigan. Detroit, as Kendall, September Joseph A. “On the Honorable capias. Sullivan canceled bond and issued “These orders were aside set on October arraignment was set for October 9, arraigned “On October 9, 1968, the defendant was *6 pre-trial and E. held was George before Honorable judge Wayne a County Bowles, of the Circuit pleaded Court. guilty. The defendant not assigned “The cause for trial on was November 7, judge the Honorable 1968, before Victor J. a Baum, Wayne County. of Court for the Circuit The cause adjourned January was 1969. 3, Defense progress. peo- had another counsel cause The ple’s was not chemist available. assigned “The cause was then trial on Janu- ary 6, 1969 before the Honorable Cornelia G. Ken- nedy, judge County a of the Circuit Court for the of Wayne. No notice of alibi was filed.
“By January written order datеd 7, 1969, the court determined offense was committed in City City of Detroit and not of Dearborn. The court ordered the case dismissed because it was jurisdiction without to conduct a trial. “A warrant was issued Frank Honorable judge a G. the Schemanske, Recorder’s Court for City January of Detroit on 1969 for 6, sale or
dispensing
possession marijuana by
§
335.152
November
1967.
CL
8,
335.153,
1948 Act
raigned on the warrant before the Honorable judge H. a Samuel of the Recorder’s Court. Olsen, February was set for 10, Examination 1969. February 10, “On H. 1969, the Honorable Samuel adjourned February Olsen 24, the examination until 1969. The defendant was retain new counsel.
“On 24, Honorable 1969, William J. Municipal Judge assigned Sutherland, Re- adjourned corder’s March the examination until Court, appeared defendant without 5, The counsel indicated his desire to retain his own counsel. op Opinion the Count be- held an examination was 1969, 5, March “On judge a DeMascio, Robert E.
fore the Honorable Detrоit. Recorder’s Court the defendant charges trial on the over for bound was complaint and warrant. contained charging information filed “An dispensed possessed or that the defendant sold arraigned upon marijuana. information on The defendant was 1969 before Honor- Davenport, judge of the Elvin L. a Recorder’s able Court City of for the Detroit. Defendant stood plea guilty entered. mute and of alibi filed “On notice defendant that on November the defend- Clarksbury, ant was in Detroit but in West Vir- ginia grandmother’s Buckingham. at 614 home alleged that Teresa The Buckingham, Clarksbury, bara Ann West Romano, Virginia, and Bar- West Clarksbury, Beto, Street, Waldeck *7 among Virginia, others, would called as be witnesses. trial on then for November set “The cause being open, ad- the matter was 1969. No court
17, journed 12, until 1970. January a filed 26, the 1970, “On quash with motion to information a notice of the
hearing February 2, 1970. way alleged by affidavits of notarized “He in Harrison Romanо and Teresa Barbara Beto says County, Virginia, ‘Affiant further that: West Dearborn, Street, Kendall of 7755 Iaconis, that Sam Michigan, her of Clarks to home came during Virginia, bury, two the first some time West alleged two of 1967.’ He November, weeks of any degree cer were unable witnesses place tainty date the defendant was by Virginia. people, Clarksbury, That West deprived unexplainable delay, defend have their (1968), People process Hernandez ant due under v. Aрp Mich 141. 15 People op Opinion the Coubt adjourned February
“The motion was February then until 1970. quashed “On 1970, the court in- deciding formation written order, ‘consider- ing totality of the circumstances involved in the case, instant court finds that there was an unrea- alleged sonable between the date of the of- fense and the issuance of the warrant.’ “On March 5, filed a motion for a rehearing quashing on order the information and evidentiary hearing for an on the reаsonableness of delay. People people alleged that Hernandez, v. supra, contrary (1969), Noble and the statute of limitations 767- they .24 CL 1948, and wanted to evidence directly related to the issue, that the defendant process. was not denied due hearing “The motion was noticed on March adjourned 16, 1970 and until March 23, request parties. of both granted rehearing “On March the court County Wayne and took evidence. Justice Court Municipal file No Court of Livonia, Wayne County Circuit file were No 47099 admitted in evidence toas transactions of the cause prior being to the cause instituted in Recorder’s Court.
“Frank was also called as wit- people. ness order written court, dated March 24, 1970, affirmed its order of Febru- ary 26, *8 quash
“It the motion to the information plaintiff appeal.” which seeks leave to Plaintiff raises which two issues will be stated and in dealt with order.
712 31 Mich 704 App I 165-day the Whether between date of the alleged and offense the date the warrant denied guaranteed process the dne him the Michigan and Federal MCLA Constitutions, where (Stat § 28.964) provides Ann 767.24 1954 Rev people may the years institute indictment within 6 alleged offense? People v. Hernandez cites cases of Defendant App (1968), United and Ross v. States (349 210) support (1965), App F2d DC 233 position defendant the due denied by Michigan process guaranteed Feder- and him people mere fact that al Constitutions. The days delayed before obtain- for 165 after offense ing a warrant is insufficient evidence being process denied to raise the issue of due Michigan and Federal Consti- defendant under the supra, p Hernandez, 146: tutions. stated We prejudice that results “It is evidence1 of this process refers due which the court the violation of (1965), DC United to Ross v. States (349 210), which is itself, F2d guideline.”
II show- make a meritorious Did out people prejudice, ing did the so, if and, of some сonvincing proof show clear explainable, (1) delay was trier of fact: preju- (3) (2) no undue deliberate, it People under dice attached to the defendant supra, pp Hernandez, 146, 147? delays many these were
It is true that there some proceedings, caused some opinion. Other material stated *9 713 are the defendant. What we concerned with delay instance is: Did the first of here the first days 165 from the date of the offense to date of dеfendant’s arrest
defense case? The desired to request of warrant until the end of part or 1968 the first of March because the informer used this case was also used in three other cases police divulge and the did not want to the informer’s identity continuing investigation as there was procedure justified these cases. This is under the (CA 1969), decision Wilson v. United States p opinion: 409 F2d 184. It stated on 186 of the “Under the Ross rule the of reasonableness particular weighed сonduct in the case is to be against possible prejudice defendant. 121 (349 213). App appel DC Here, F2d 212, postponed lant’s arrest was because the time of Abbey Bishop Abbey, working the sale were on other An arrest narcotics cases. earlier would have revealed their less them identities made use * * * appears in the other cases. It thus appellant’s arrest was for a rea valid, police purpose.” sonable same circumstances are in the instant important.
case. Other are also Defendant Michigan left the State within one week of the date of the offense for the State Florida. He returned in 1968 about a week before he was During located and arrested. the time that he was out of the state, statute limitations was complain tolled.2 Defendant cannot now for the days period spent of 165 he all when of that lacking about two weeks outside of the stаte. charges Further, trial defendant’s (Stat MCLA Ann 767.24 28.964). 1954 Rev § op Opinion the Couet County two Wayne was set on Circuit times well of these as both At occasions. different preliminary defendant was examination, as at the represented alibi was filed notice No counsel. *10 Circuit Court. defendant in the on behalf a notice of time For the first by in the Recorder’s defendant filed alibi was asserting he at was, that Detroit for the Virginia. Clarksbury, West offense time to January filed a motion dеfendant 26, 1970, On quash affidavits, and attached two information both Romano, and Teresa Barbara Beto those stating defendant that dated December first two in the visited at their homes sometime as- then 1967. The defendant in November weeks proceeding delay people in of the serted that the complaint, of the de- and arrest warrant, with the prejudicial He claim him. based this to fendant was upon not, could witnesses the assertion that two certainty еxact time with at that or ascertain date, is no he at their homes. There that was times attempted showing ascer- he to that the offense tain his whereabouts on the date of prior 1969. The wit- December to these witnesses inability specify of defendant’s the date nesses’ to Virginia, presence Clarksbury, is attribut- West infirmity as to the de- as much to of the alibi able delay lay. inability attributable Even if their to delay offending showing is alone, made that no delay arrest, mоnth before the five and one-half was pro- delay year’s rather than the court caused ceedings. pro- The latter is incident court to ceedings people’s much as and affects the case as com- defendant’s. The fact that the court pounded by year’s proceeding in a court wasted jurisdiction, nothing. without benefits defendant knowledge Defendant had, at all of the times, legal remedy counsel discover and and the to jurisdictional defect. failure to do could His so strategic. appears have been It that the defense of afterthought, for no claim alibi was such Wayne County. court action made circuit affidavits of the two witnesses are The consistent present Michigan he the facts that date and at the scene offense as testified at least two witnesses. state were at least two to four other witnesses there who give testimony were and available they observed the defendant the scene of the misidentifying offense. defend- The chances of extremely ant were remote. Wilson v. United p supra, States, that the defendant failed to show
We rule him from the be- resulted to some tween the date of the offense to the date arrest. *11 Arguendo, assuming be that it could said that by prejudice we come defendant, shown some delay (1) was satis that the to the determination requirements by factorily explained effеctive the deliberately (2) it was not law enforcement, requirement planned, number under i.e., the needs part (1) having the latter extended to being the state and the defendant out of (3) and that no arrested about a week before he was prejudice defendant under undue attached supra. People Hernandez, p Hernandez, 146: in said We fully be considered in each are to case weighed balancing be of interests must and the process. due a denial of there is whether determine charac- consider the we must case, in this To do this Silva; the credibility Alma of the witness, ter and indication of a witness ‘deal’ between that corroborating prosecution; material evi- the lack of 31 Mich Danhof, J. Concurrence inherent dence; incapabilities defendant’s character; of the indignity unnecessary severity manner in which was arrested; marked alleged fact there was used money which not recovered and the days defendant, before arrest uneducated illit- erate man.” case, instant defendant was known
In the Hernandez, whereas in there police officer, was the questionable bare of one witness testimony highly Hernandez, In was no credibility. there corroborat witness. Here there are four and six ing possibly In witnesses. this case there is no corroborating evidence a deal between any prosecution Hernandez, Unlike there party litigation. are incapabilities character; no inherent defendant’s no claim made has been that the defendant unedu cated or Also, illiterate. defendant did not allege that he suffered any unnecessary severity manner of his arrest. Hernandez was Further, all available the time of during whereas the instant case defendant not available, being out of the state for all but two weeks of the period. Applying Hernandez, rule supra, we hаve shown clear and convincing proof that (1) delay was it was (2) explainable, no deliberate, undue (3) attached the defendant.
The order of the trial court quashing informa- tion is set hereby aside, and the case is remanded for further proceedings inconsistent with this opinion. *12 J., concurred.
Bronson, I concur with Danhof, J., (concurring). the re- sult reached but their opin- because majority, Weiss Hammond I what consider to be ion erroneous perpetuates Peoрle v. Hernandez expressed philosophy 15 Mich I cannot to App subscribe (1968), Noble People (1969), same. See v. App fn 302: 1, p Hernandez v. is aware 141, which a 15 Mich decision of two (1968), arrest a of due considers violation one with the agree holding does panel This process. of not follow it until ruling and will case controlling determined similar is that case Court.” Supreme by Michigan cases the informa- quashing judge The order trial reversed; is tion discharging remanded information reinstated and trial trial. court for HAMMOND WEISS Judgment Grounds—Speculative Judgment Dam- — —Accelerated ages. granted ground judgment be cannot An accelerated accuracy because damages determined cannot be 1963, 116.1). (GCR ground judgment for accelerated J. Sub- Genesee, Baker, W. John Appeal at Lansing. Division mitted 26, 1971. Decided (Docket 9416.) No. Am Jur 2d, Reference Judgments Points et seq. Headnote notes recollect car. He Iaconis’ could lect the color of