People v. Trombley

62 Mich. 278 | Mich. | 1886

Morse, J.

. Trombley was convicted upon a criminal charge in the Wayne circuit court.

¡Before trial, he withdrew his plea of “not guilty,” and hi? counsel moved to quash the information against him for the reason that the.same’.was not signed or sworn to by the pros-.; ecuting attorney, but was signed and verified by the assists: ant prosecuting attorney, and filed by him in the absence of '• his superior. . :

The motion was denied.' The case comes here upon thisv single exception taken to this ruling.

The motion was properly denied. The statute expressly provides that the information “ shall be verified by the oath of the prosecuting attorney, complainant, or some other person.” How. Stat. § 9550.

Originally, the assistant prosecuting attorney of Wayne county was authorized “ to perform such duties as may be required of him by the prosecuting attorney.” How. Stat.' § 565.

In 1885 the statute was amended, and it was made the duty of the assistant; “ in case of the absence, disability, or sickness of the prosecuting attorney, to discharge all the functions and perform all the duties of the office of prosecuting attorney.” Act 109, Sess. Laws 1885, p. 111.

If constitutional, this statute meets any possible objection that can be raised to the action of the assistant in this case.

The prosecuting attorney is an officer created by.and existing under the constitution, but his duties and powers are to be prescribed by law. Const. § 3, art. 10. There is no express or implied prohibition of the legislative action embodied in this statute. .

The assistant prosecuting attorney, before he enters upon the duties of his office, takes the constitutional oath, and there is no good reason why he should not be empowered to draw, sign, verify, and file informations in the absence, sickness, or disability of his superior. If he can assist in the prosecution of an offender against the laws of. the State'to such an extent as in reality to manage and control the case, which power has never been doubted, there can' be no reasonable or tenable objection to his instituting the process, in the first place, by which the accused is brought into and before ' the court. .

Before the passage of the act of 1885, when he was only authorized to perform such duties as might be required of him by the prosecuting attorney, we held that in the necessary absence of the prosecuting attorney, and with the permission of the court, he might amend an information upon the trial of a cause. People v. Henssler, 48 Mich. 49.

The judgment of the court below is affirmed.

The other Justices concurred.