People v. Crandell , 270 Mich. 124 ( 1935 )

Defendant, a boy between 15 and 16 years of age, was convicted of murder of the first degree and sentenced to life imprisonment.

The day he was arrested, and without counsel or knowledge of his father, the juvenile division of the probate court waived its jurisdiction, he was arraigned in the police court, waived examination, was arraigned in the superior court and pleaded guilty to an information charging him with the crime of murder. After sentence the court was petitioned to set the sentence and conviction aside and accord defendant a trial with the assistance of counsel. The court refused to do so and, upon application, we allowed an appeal. The murder was clearly established by evidence, and the degree thereof was confessed by defendant and verified by other evidence as a killing in an attempt to perpetrate a robbery. This constituted murder of the first degree. Act No. 328, § 316, Pub. Acts 1931.

Defendant loaded his father's revolver, placed a mask over his face, went into the house of a neighbor, demanded money from Ima Brewer and, when she called him by his given name and started to get a broom stick he shot and killed her. Defendant then went home, burned the mask, replaced his father's revolver and, the next day, attended school and was there arrested.

The fact that in the confession defendant stated an unintentional firing of the revolver did not reduce the degree of murder. People v. Roberts, 211 Mich. 187 (13 A.L.R. 1253).

As stated in People v. Lytton, 257 N.Y. 310, 316 (178 N.E. 290, 79 A.L.R. 503):

"The court did not err in charging the jury in effect that the discharge of a pistol by a defendant who is holding it in his hand in furtherance of an attempt to rob, will lay the basis for a verdict of murder in the first degree, though the discharge was not intended, an accident induced by the terror or nervousness or excitement of the robber."

See, also, Commonwealth v. Lessner, 274 Pa. 108 (118 A. 24).

Before arraignment defendant made a written confession and, after plea, was examined by the judge and again confessed his crime and detailed the circumstances. Upon his plea the court examined witnesses; the written confession was placed in evidence and the court could do no less than sentence him to imprisonment for life for murder of the first degree. Act No. 328, § 316, Pub. Acts 1931.

No claim is made by defendant of coercion in obtaining the confession; neither does he now claim that the confession was not true.

The procedure employed in the instance at bar was expeditious and might well, considering the age of the boy, have been less speedy and an opportunity afforded the father to be present but, if in accord with lawful action, we cannot set the same aside. The law affords an accused the benefit of counsel if he so desires; of his own selection if employed by him, and by the court if he is without means and so requests. No request was made and the court did not exercise the humane power of providing the boy with counsel.

The prosecuting attorney, by petition, informed the juvenile division of the probate court that defendant was under arrest for a felony and asked that court to waive jurisdiction and permit prosecution in a criminal proceeding. The probate judge recited in an order that, upon investigation, such a prosecution should be permitted and waived jurisdiction.

Under the circumstances here involved, considering the age of the boy, the felony alleged was wholly without the jurisdiction of the juvenile division of the probate court, People v. Ross,235 Mich. 433, and the waiver required was but pro forma.

The record fully supports the waiver and the statute, Act No. 309, chap. 4, § 27, Pub. Acts 1931 (amending 3 Comp. Laws 1929, § 17161), relative thereto, was complied with. There is no merit in the point that defendant's confession could not be considered in determining the degree of the murder.

In People v. Lytton, supra, 313, it was said:

"The defendant insists that upon a trial for homicide perpetrated in the commission of another and independent felony (People v. Moran, 246 N.Y. 100 [158 N.E. 35]; Penal Law, § 1044, subd. 2), a confession is insufficient evidence to sustain a conviction, though there is corroborating evidence of the fact of the homicide, unless there is also corroborating evidence, i. e., evidence apart from the confession, of the independent felony, and that the trial judge erred in charging to the contrary. * * *

"Code of criminal procedure, § 395, provides that a confession of a defendant 'is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.' The crime charged against this defendant is homicide, and the fact that a homicide has been committed is proved, without reference to a confession, by the testimony of eyewitnesses as well as by the discovery of the body, bearing tokens of a fatal wound (People v. Deacons, 109 N.Y. 374 [16 N.E. 676]; People v. Brasch, 193 N.Y. 46, 58 [85 N.E. 809]). This being done, the requirement of the criminal code must be held to have been satisfied. The danger that a crime may be confessed when no such crime in any degree has been committed by any one is then sufficiently averted. * * * The corroborating evidence being sufficient to confirm the confession of a homicide, the code does not require that it shall also confirm the confession of a homicide in any particular degree."

No claim is made by defendant, or any one in his behalf, that he was not guilty of the murder. His confession of guilt and details of the killing remain unquestioned.

We quote the following from the opinion of the trial judge:

"Complaint is made that the respondent was not represented by an attorney when arraigned in this court.

"It is the duty of a court to see that all the rights of one charged with an offense are properly safeguarded. In the present case after the respondent's plea of guilty was entered, testimony was taken. The court also interrogated the respondent, all of which was for the purpose of ascertaining if the plea should be accepted, and had it appeared to this court from these proceedings that the respondent's plea was not proper it would have been set aside and a plea of not guilty entered upon the court's own motion. This court also talked with the father and two sisters of the respondent before passing sentence. The following day an attorney of this city, Mr. Dean Face, requested the court to detain respondent until he could conduct a personal investigation. The request was granted. The respondent had been sentenced Wednesday afternoon. The following day was Thanksgiving Day. On the succeeding Friday and Saturday, Mr. Face conducted his investigation. He caused respondent to be examined by Dr. Robertson of the Ionia State Hospital that his mental condition might be determined, and it was not until the following Monday and after Mr. Face had advised the court that he had no further objections, that the respondent was taken to Jackson to begin his sentence."

The constitutional provision, securing to an accused the right to have the assistance of counsel, is not at all applicable to this case.

In People v. Williams, 225 Mich. 133, two men, upon pleas of guilty, were sentenced and later moved the court to vacate their pleas, alleging that they did not have the assistance of counsel and, therefore, could not freely and intelligently act. We held:

"An accused is not entitled, as of right, to have counsel assigned by the court to advise him relative to his plea. The State Constitution, art. 2, § 19, secures to an accused the right 'to have counsel for his defense.' This does not mean he shall have counsel at public expense. It is a guaranty of right to employ and have counsel; a right not always recognized in early English criminal cases. Section 15623, 3 Comp. Laws 1915, also allows an accused to be heard by counsel. This is only declaratory of the right secured to an accused by the provision mentioned in the Constitution, and is on a par with the right to produce witnesses and proofs in his favor, but does not mean he shall have counsel at public expense. Section 15912, 3 Comp. Laws 1915, permits the court to appoint an attorney at public expense to conduct the defense of an accused when he is unable to procure counsel. This statute is permissive; its provisions require a showing of inability of an accused to procure counsel, and, as a rule, to which, of course, there may be exceptions, cannot be invoked by an accused until after plea and not at all under a plea of guilty."

If the action had was without error in point of law we cannot, and ought not, let a sense of what might better have been done move us to set aside the conviction.

We find no reversible error and the conviction is affirmed.

POTTER, C.J., and NELSON SHARPE, NORTH, FEAD, BUTZEL, and EDWARD M. SHARPE, JJ., concurred with WIEST, J.