People v. Funk , 321 Mich. 617 ( 1948 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Defendant was convicted in 1921 of burglary, in 1930 of robbery armed, and in 1938, on a plea of guilty, of carrying concealed weapons. His arraignment in 1938 was on an information read to him in open court by the prosecuting attorney and then handed to the circuit judge, but which, as appears from the records, was not filed with the clerk. A copy thereof was found in the office of the said circuit judge after his decease. The court records fail to disclose a determination by the judge that the plea of guilty was freely made with full knowledge of the nature of the accusation, but a contemporary letter from the judge to the department of corrections states that he did make "a thorough investigation of the plea and facts surrounding that charge." Sentence was never imposed upon that conviction but, instead, at the court's request, defendant was returned to prison as a parole violator.

In 1944 defendant was convicted by a jury of larceny from a hotel. Thereafter, on the basis of the above four convictions, he was arraigned upon a supplemental information charging him as a fourth offender under the habitual criminal act, and pleaded guilty.

Defendant contends that his 1938 conviction on the concealed weapons charge should not have been considered valid for the purpose of enhancing punishment under the habitual criminal act and that, therefore, he should have been sentenced only as a third and not as a fourth offender in 1944. Defendant is here on appeal from orders (1) denying his motion to set aside his sentence as a fourth offender, (2) denying his motion for discharge on the 1938 conviction and (3) granting the people's application for duplicating the lost information in the concealed weapons case.

It is defendant's theory that a circuit court has no jurisdiction for any purpose in a criminal case, and that the cause is not pending there, until an information is filed with the clerk. With this we do not agree. When the return on examination has been filed in the circuit court by the examining magistrate and the latter's jurisdiction ends, no hiatus occurs leaving the case suspended in mid-air with jurisdiction nowhere. Nor can it be said that, because the law permits the filing of papers in a cause with the clerk of the court, the placing of papers in the hands of the judge of the court for filing and his acceptance thereof for that purpose are ineffective. A cause was pending in the circuit court in 1938 in which it was competent for the court, at a later date, under the provisions of 3 Comp. Laws 1929, § 13898 et seq. (Stat. Ann. § 27.476 et seq.), to order the filing of a duplicate of the lost original information, which, as appears from the journal entries, was read to defendant in open court upon arraignment and thereupon handed to the judge. The statute of limitations has no application, as urged by defendant, to such filing of duplicate papers or records.

The statute, 3 Comp. Laws 1929, § 17328 (Stat. Ann. § 28.1058), requires the judge to become satisfied, after such investigation as he may deem necessary, that a plea of guilty "was made freely, with full knowledge of the nature of the accusation." Despite the absence of a journal entry to that effect, the record before us is persuasive that the judge did make such an investigation and satisfy himself on that score. See People v. Vester, 309 Mich. 409.

Defendant urges that his 1938 conviction is not a conviction within the meaning of the habitual criminal act, to be considered for the enhancement of his punishment as an habitual offender, because sentence was never imposed thereon. 3 Comp. Laws 1929, § 17340 (Stat. Ann. § 28.1084), provides for enhancement of the punishment due a person convicted of a felony when he has been theretofore "three times convicted * * * of felonies." The statute does not make imposition of sentence upon the previous convictions a prerequisite to the enhancement of punishment upon the fourth conviction. The conviction is the finding of guilt. Sentence is not an element of the conviction but rather a declaration of its consequences. As authority that this is the meaning of the word "convicted" as used in this statute seeAttorney General, ex rel. O'Hara, v. Montgomery, 275 Mich. 504. In People v. Cordell, 309 Mich. 585, we quoted with approval the following:

"``"The suspension of the sentence simply postpones the judgment of the court temporarily or indefinitely, but the conviction and liability following it, and all civil disabilities remain."'"

In People v. Morlock, 234 Mich. 683, we held that a violation of the prohibition law might be charged as a second offense, although the first conviction had been removed to the Supreme Court on exceptions, before sentence, and remained there undecided still. In People v. Adams, 95 Mich. 541, we held that in a prosecution for second offense under the local option law, the record of the first conviction, which remains unreversed, is admissible, even though a void sentence was imposed. In the case of In re Southard, 298 Mich. 75, we said:

"The habitual criminal act was passed to provide a punishment for repeated commissions of felonies. People v. Palm,245 Mich. 396. The act is concerned with prior convictions and not the sentences under those convictions."

Other points discussed in defendant's brief, but not set forth in or necessarily suggested by the statement of questions involved, are not considered. Court Rule No. 67, § 1 (1945).

The orders appealed from are affirmed.

BUSHNELL, C.J., and SHARPE, BOYLES, REID, NORTH, BUTZEL, and CARR, JJ., concurred.