292 N.W. 520 | Mich. | 1940
On August 5, 1938, defendant, Morris Stone, was arrested upon a warrant charging him with taking indecent and improper liberties with a female child under the age of 16 years, without committing or intending to commit the crime of rape upon said child. Examination was waived, and on August 16, 1938, he was arraigned in circuit court, at which time he stood mute and a plea of not guilty was entered. On September 20, 1938, he appeared in court with his attorney and changed his plea to guilty. On October 15, 1938, before sentence, a motion to set aside the plea of guilty was filed, which motion was supported by several affidavits. Defendant's affidavit stated that in entering the plea of guilty he relied entirely on the advice of his attorney, and that he was completely ignorant of any of the facts stated in the information, and that at the time of the offense charged in the information he was suffering from a spell of amnesia. The statement that a condition of amnesia existed is supported by the affidavit of defendant's physician. The affidavit of the attorney who represented defendant at that time stated that defendant had always insisted that he knew nothing of the facts and circumstances charged in the information, and that his mind was a blank as to what occurred on the occasion referred to therein. It appears that the attorney advised defendant to plead guilty because he felt that even though a trial would result in acquittal, defendant would be committed to an institution for the criminally insane, and also because of the expense involved in properly presenting *661 a defense. The motion was argued and testimony taken before the court from time to time.
On November 15, 1938, defendant filed a motion to dismiss on the ground that the information was defective.
On April 8, 1939, the court denied both motions and sentenced him to serve 60 days in the county jail and placed him on probation for five years. From the order denying the motions and from the sentence imposed, defendant appeals.
The two questions to be decided are, should the plea of guilty have been set aside, and was the information defective?
The first question has been ruled upon by this court on two occasions recently, and it is now the settled rule in this State that a plea of guilty may be withdrawn at any time before sentence. In People v. Piechowiak,
"A considerate procedure of long recognition in this jurisdiction admits of withdrawal of a plea of guilty at any time before sentence, and this is especially true where in a case like this, an examination has been waived and, therefore, no informative court-recorded evidence is available. The plea admitted guilt but the affidavit in support of the denied motion averred innocence and the issue of fact should be open to proofs upon a trial."
This rule was followed in People v. Wexner,
The information is attacked as being defective because it fails to name the person upon whom the offense is charged to have been committed, and because *662 it omits the words "the person of" as they are found in Act No. 328, § 336, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-336, Stat. Ann. § 28.568). The information reads as follows:
"Morris Stone being a male person over the age of 16 years, did assault and take indecent and improper liberties with a female child under the age of 16 years, without committing or intending to commit the crime of rape upon said child."
The statute referred to provides in part:
"Any male person or persons over the age of sixteen years, who shall assault a female child under the age of sixteen years, and shall take indecent and improper liberties with the person of such child, without committing or intending to commit the crime of rape upon such child, shall be guilty, et cetera."
The information was sufficient to state an offense under the statute and the defects claimed to exist can be cured by proper amendment. It is true that the name of the person upon whom the offense is alleged to have been committed should be stated in the information. 31 C. J. p. 727, § 272. It is necessary to enable the defendant properly to prepare his defense that he know the name of the person he is charged with offending. In the instant case, however, defendant cannot claim he was harmed by the omission. He was represented by an attorney for a period of three months before any question was raised as to the sufficiency of the information. During this time, he had waived examination, stood mute on arraignment and a plea of not guilty was entered, which he subsequently withdrew and entered a plea of guilty, finally making a motion to set aside the latter plea. After all this had transpired, he objected to the information. *663
Although there are insufficient grounds on which to quash the information, the trial court should have amended it in view of the provisions of 3 Comp. Laws 1929, § 17290 (Stat. Ann. § 28.1016), and the decisions of this court permitting amendments in order to include the names of parties involved. See People
v. Griffin,
The sentence is vacated and the case remanded to the circuit court to permit amendment of the information and to permit defendant to withdraw the plea of guilty, plead not guilty and have a trial.
BUSHNELL, C.J., and SHARPE, POTTER, NORTH, McALLISTER, WIEST, and BUTZEL, JJ., concurred.
