This is an appeal by leave and at the instance of the people from a habeas corpus release. Combined in the alternative with the appeal is an application for an order of suрerintending control. The defendant and petitioner below, William Price, is on personal bond pending the outcome.
The events preceding the release are summarized as follows:
In July, 1961, the defendant, then 16 years old, was charged with larceny from the person. 1 Jurisdiction was waived by the juvenile court and trial in the recorder’s court of the city of Detroit in September, 1961, resulted in a verdict of guilty as charged. The defendant was sentenced to a term of one to ten years in Jackson prison, a term later enhanced by an escape conviction.
In the fall of 1967, while still an inmate of Jackson prison, the defendant filed a motion for new trial in the recorder’s court, claiming among other things that his larceny conviction was void for the want of representation by counsel at the juvenile waiver
*666
hearing.
In re Gault
(1967),
The defendant’s principal contention in opposition to this appeal is that review of a
habeas corpus
release is simply not open to the people. Before turning to this question, we note that under the present case law of this state, Judge Crockett was in error on the merits of the release. In
People
v.
Terpening
(1969),
The defendant’s principal contention is founded on both statute and case law. MCLA § 770.12 (Stat Ann 1954 Rev § 28.1109), enacted in derogation of the common-law rule barring any and all appeals by the people in criminal cases, permits review at the instance of the people by a writ of error (modernly, an appeal), but only under certain narroiv circumstancеs. None of the circumstances enumerated in the statute are present here.
People
v.
Conant
(1886),
Thе people acknowledge these limitations on appellate review but contend that review is open under our broad power of superintending control, a power granted this Cоurt to aíford a remedy where one is otherwise unavailable. We feel, as various authorities have stated, that this is a broad power and can be used whenever this Court or the Supreme Court sеes fit to properly use it; especially where it becomes necessary to “insure the harmonious working of our judicial system,” quoting from Chief Justice Dethmers’ opinion in
In re Huff
(1958),
“The power of superintending control is an extraordinary power. It is hampered by no specific rules or means for its exercise. It is so general and comprehensive that its complete and full extent and use have рractically hitherto not been fully and completely known and exemplified. It is unlimited, being bounded only by the exigencies which call for its exercise. As new instances of these occur, it will be found able to cope with them. Moreover, if required, the tribunals having authority to exercise it will, by virtue df it, possess the power to invent, frame, and formulate new and additional means, writs, and proceséis whereby it mаy be exerted. This power is not limited by forms or procedure or by the writ used for its exercise. Furthermore, it is directed primarily to inferior tribunals, and its relation to litigants is only incidental.”
Also, see, generally, Committee Comment, GCR 1963, 711.1, 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 41.
*668
We therefore inquire into the jurisdiction of the recorder’s court to entertain a question on
habeas corpus
in the first place; that is, whether
habeas corpus
was a proper and available method for review of the error сlaimed by defendant. Our authority to entertain this question, along with our authority to exercise superintending control and order the vacation of the release order if
habeas corpus
is found to be an improper method of review, stems not only from
In re Huff, supra,
but also from
Hamilton’s
case (1883),
“The dischargе necessarily assumed that the record of conviction failed to show the commission of any offense. This conclusion was reached apparently upon a somewhat critical and technical examination of the commitment, and we are not satisfied that the criticism was not overnice. But the point is not very material, as it is plain that technical defects are now rеviewable on this process.
“If the warrant showed a conviction without jurisdiction,
habeas corpus
would be the proper remedy; but when the defects are mere irregularities the party must seek redress in some of the modes provided by statute for review by some аppellate tribunal. The circuit judge of the Ionia circuit is not an ajppellate tribunal in respect to proceedings which take place before justices of the peaсe of the county
*669
of Schoolcraft, and in exercising authority hy the writ of
habeas corpus
he is commissioner merely, and what he may do, the circuit court commissioner of the county may claim the right to do also. Nor would the authority be limited to convictions by justices of the peace, but the circuit court commissioner might in the same way assume to review the judgments and sentences of the circuit courts, and we might witness the spectacle of these inferior оfficers sitting as judges of review upon the action and judgments of courts of general jurisdiction. A sense of propriety might restrain such action,
but we cannot fail to perceive what possibilities аre involved in sustaining this discharge. An appellate court may no doubt make use of the writ as one means of exercising its supervisory power, but it is not to be employed as a writ of error by tribunals not рossessing the appellate authority.”
(Emphasis added.) See, also,
Ellis
v.
Daboll
(1892),
We now turn to the question whether habeas corpus was a proper method of review in the instant case.
Section 4310(3) of the
habeas corpus
statute
2
prohibits a
habeas
action by or on the behalf of “persons convicted, or in execution, upon legal process, civil or criminal.” This statutory prohibition is generally consonant with often-repeated judicial declarations that
habeas corpus
cannot serve as a substitute for an appeal
3
and cannot be used to review the merits of a criminal conviction.
4
Despite the general prohibition,
habeas corpus
is open to a convicted person in one narrow instance, one that con
*670
cerns us here, and that is where the convicting court was without jurisdiction to try the defendant for the crime in question. See In re
Joseph
(1919),
The pivotal question thus becomes whether the error asserted by defendant — the denial of an allegеd right to counsel at a juvenile waiver hearing —was such that for purposes of habeas review the recorder’s court can be said to have been without jurisdiction to enter a conviction. We conclude that it cannot.
Further, we question the authority of the trial court here to review conviction and sentence of a defendant by another trial judge by way of
habeas corpus.
The Supreme Court in
In re Satt
(1911),
We point out that review was available. An appeal to this Court by leave could have been taken, as was done in Terpening, supra. More significantly, *671 the asserted defect in the convicting court’s jurisdiction cannot he characterized as radical. A radical defect in jurisdiction contemplates, we think, an act or omission by state authorities that clearly contravenes an express legal requirement in existence at the time of the act or omission. If it were otherwise, habeas corpus in the trial courts of this state would open the way for the less than uniform resolution of unsettled questions of law, along with judicial abuses that are neither reported nor appeal-able. Habeas corpus in a trial court is a highly inappropriate device for the final resolution of such questions.
The defect or error asserted in the instant case did not contravene an express legal requirement in existence either at the time of the waiver hearing or at the time of the release. Indeed, in Terpening this Cоurt expressly rejected the contention that the presence of counsel was required at pre-Gault waiver hearings. Thus, we conclude that for purposes of habeas corpus the recorder’s court had jurisdiction to convict the defendant and that habeas corpus, after conviction and sentence, was consequently an improper method of review.
Since habeas corpus was an improper method of review, it is hereby ordered under our powers of superintending control, GrCR 1963, 711.4(1), that the order of discharge be vacated and the defendant remanded to the custody of the Michigan Department of Corrections.
Notes
MCLA § 750.357 (Stat Ann 1954 Rev § 28.589).
MCLA § 600.4301 et seq. (Stat Ann 1962 Rev § 27A.4301 et seq.).
In re Long
(1934),
In re Lemanna
(1933),