277 N.W. 883 | Mich. | 1938
A written complaint was filed before a justice of the peace in Macomb county, alleging that Herman Monick, alias Joseph Caswell "did attempt to break and destroy a safe, to-wit, a depository of money and other valuables in a building of Charles Reindel on Main street in the village of Fraser, contrary to the form of the statute in such case made and provided." *197
The justice issued a warrant containing the identical language of the complaint. Monick was taken into custody, brought before the justice and an oral examination was had, the testimony not being reduced to writing. The justice held that the offense had been committed as charged and there was probable cause to suspect Monick of being guilty and he was held for trial in the circuit court. An information was then filed by the prosecuting attorney charging Monick with an "attempt to break and destroy a safe, to-wit, a depository of money or other valuables in a building of Charles Reindel on Main Street in the village of Fraser. Contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan."
At the trial in the circuit court before a jury, when the prosecution had rested, defendant moved the court to quash the information that he be discharged for the reason that it did not contain the language of the statute, namely, the words "intent to commit the crime of larceny," etc.
Section 531 of the Michigan penal code, same being Act No. 328, Pub. Acts 1931 (Comp. Laws Supp. 1935, § 17115-531), reads as follows:
"Any person who, with intent to commit the crime of larceny, or any felony, shall confine, maim, injure or wound, or attempt, or threaten to confine, kill, maim, injure or wound, or shall put in fear of any person for the purpose of stealing from any building, bank, safe or other depository of money, bonds or other valuables, or shall by intimidation, fear or threats compel, or attempt to compel any person to disclose or surrender the means of opening any building, bank, safe, vault or other depository of money, bonds, or other valuables, or shall attempt to break, burn, blow up or otherwise injure or destroy *198 any safe, vault or other depository of money, bonds or other valuables in any building or place, shall, whether he succeeds or fails in the perpetration of such larceny or felony, be guilty of a felony, punishable by imprisonment in the State prison for life or any term of years."
The trial judge made the following observations:
" 'Any person who, with the intent to commit the crime of larceny or any felony, shall attempt to break, burn, blow, otherwise injure, destroy a safe, vault, or other depository of money * * * any person who, with the intent to commit the crime of larceny or any other felony.' It is the charge that Mr. Caswell, with intent to commit the crime of larceny, did attempt to break and enter. It is not alleged he did it with the intent to commit a crime of larceny. I presume possibly your information might be held defective for the failure to allege a crime of larceny. I will assume that is rather a technical objection that could be remedied by the amending of the information to include, to read that Herman Monick, late of the village of Fraser, on the 1st day of August, 1936, in the village of Fraser and county of Macomb, aforesaid, with the intent to commit the crime of larceny, did attempt to destroy and break a safe."
Defendant objected to any amendment; the court overruled the objection and permitted the prosecutor to amend the information by adding thereto the words, "with the intent to commit the crime of larceny." The jury was then returned to the court room, a witness was sworn on behalf of defendant, examined and cross-examined, and both sides rested. The jury brought in a verdict of guilty.
Defendant was granted leave to appeal and raises several questions, among which are that the circuit court did not acquire any jurisdiction, because the complaint, warrant and return of the examining *199 magistrate did not charge any offense known to the law; that the court was in error in permitting the information to be amended after the prosecution had rested; and that, even after amendment, the information was still defective in that the subject-matter of the larceny was not properly alleged. He claims, even though assuming that a crime was alleged in the original information, the court erred in amending such information to state a new crime, thereby compelling the defendant to proceed to trial without new arraignment and plea, he having stood mute. Defendant further urges that he was twice placed in jeopardy when the jury proceeded to try him under an amended information which alleged a higher offense.
All of the foregoing may be disposed of by determining the question of the jurisdiction of the circuit court to try the defendant on the information as amended.
This court held in People v. Dochstader,
People v. Sims,
The holding in People v. Spence,
The fact that defendant did not request a continuance or re-examination and re-arraignment cannot be considered as a waiver of the circuit court's lack of jurisdiction.People v. Dochstader, supra, and People v. Gregory,
The judgment of conviction is reversed and defendant discharged.
WIEST, C.J., and BUTZEL, SHARPE, POTTER, CHANDLER, NORTH, and McALLISTER, JJ., concurred. *201