223 Mich. 656 | Mich. | 1923
Lead Opinion
Defendant was convicted by the verdict of a jury in the circuit court of Calhoun county of unlawfully having in his possession a quantity of intoxicating liquor. He brings the case here for review on exceptions before sentence. The question raised on this record is essentially one of procedure. On complaint regularly made and warrant issued defendant was arrested and taken before the proper magistrate where he waived examination and was bound over for trial to the circuit court. The committing magistrate made customary return of the proceedings to the circuit court, certifying that examination before him was waived. Under such return an information was filed at the ensuing term of the circuit court which then had jurisdiction to try the case. People v. Wright, 89 Mich. 70. Defendant was represented by counsel and when arraigned stood mute to the charges contained in the information. A plea of not guilty was thereupon entered in his behalf by order of the court. The case was assigned for trial as the last criminal case of the term. When reached and called for trial a few days later with defendant and counsel for the respective sides present, the clerk, by direction of the court, proceeded to impanel, a jury when defendant’s
“The final determination of this motion was deferred for the purpose of enabling the prosecuting attorney to make a counter showing and enabling the attorneys for the respective parties to file briefs. This has been done and after having given the matter full consideration I am of the opinion that the motion should be denied for the following reasons:
“First. It now appears by the record in this cause that there was no unlawful use or abuse of a search warrant but on the contrary the same was properly issued after a sufficient showing before the magistrate and,
“Second, because the question now before the court was never raised by or in behalf of the defendant until after the trial of said cause had been' called and the impaneling of the jury started. It is, therefore, ordered and adjudged that defendant’s motion that the verdict be set aside and he be discharged from custody be and the same is hereby denied.”
It is undisputed that no search warrant or pro
As a general rule a search warrant is not properly a part of a criminal case. It is but an authorized method of securing evidence. The act does not in express terms, nor as construed in the Knopka Case, require the papers relative to a search warrant to be returned by the committing magistrate if examination
When arrest of an accused follows execution of a search warrant the question of its validity can be raised by him as soon as he.is taken before the magistrate. He is entitled to an examination, unless he expressly waives it, before that court where the warrant is returned and affidavits in support of it filed and the whole matter open for investigation. Then, in case of an adverse ruling, those proceedings are returned with and as a part of the examination, ready for review in the circuit court, if he so desires and timely moves for such action. But even if under any special circumstances he may, in the discretion of the trial court, first raise the question before it and there move for suppression of the evidence and dismissal, he should at least make his motion timely and in compliance with the rules of that court. Under Circuit Court Rule No. 15, opposing counsel is entitled to a copy of the motion and a four days’ notice of the time it will be presented for argument, unless the court in its discretion on good cause shown shortens the time. This rule has been held to apply to certain dilatory motions in criminal cases (Peterson v. St Clair Circuit Judge, 143 Mich. 79; Burgess v. Wayne Circuit Judge, 171 Mich. 583; Glinnan v. Judge of Recorders Court, 181 Mich. 192), and we see no reason why it is not equally applicable here.
Before this motion was made or filed the case had been called and the machinery of the court set in motion to try it with the clerk in the act of calling the waiting jurors. The trial had in effect been begun. The motion raised a collateral issue as to how and in what manner certain evidence was procured. The rule is fairly settled that courts will not stop the
The conviction is affirmed.
Dissenting Opinion
(dissenting). I think the motion timely made if made before the trial commences.