Oakman v. Recorder of Detroit , 207 Mich. 15 ( 1919 )

Steere, J.

(after stating the facts). Act No. 196 of the Public Acts of 1917 is entitled:

“An act to authorize proceedings for the discovery of crime, and to provide penalties for a violation of such procedure.”

Sections 1 and 2 of said act are as follows :

‘‘Whenever by reason of the filing of any complaint which may be upon information and belief, any justice of the peace, police justice or judge of a court of record shall have probable cause to suspect that any crime, offense, misdemeanor or violation of any city ordinance, shall have been committed within his jurisdiction, and that any person may be able to give any material evidence respecting such offense, such justice or judge in his discretion may, and upon the application of the prosecuting attorney, or city attorney in the case of suspected violation of ordinances, shall require such person to attend before him as a witness and answer such questions as such justice or judge may require concerning any violation of law about which he may be questioned; and the proceedings to summon such witness and to compel him to testify shall, as far as possible, be the same as proceedings to summon witnesses and compel their attendance and testimony, and such witnesses shall be entitled to the same compensation as in other criminal proceedings.

“If upon such inquiry the justice or judge shall be satisfied that any offense has been committed and that there is probable cause to suspect any person or persons to be guilty thereof, he may cause the apprehension of such person or persons by proper process, and, upon the return of such process served or executed, the justice or judge shall proceed with the case, matter or proceeding in like manner as upon formal complaint, and in respect of communicating' or divulging any statement made by such witnesses during the course of such inquiry, the justice, judge, prosecuting attorney and other person or persons who may, at the discretion of such justice, be admitted to such inquiry, shall be governed by the provisions of law relative to grand jurors.”

Sections 3 and 4 provide for the punishment of recalcitrant witnesses and under certain circumstances for immunity of witnesses compelled to give incriminating testimony. It is the contention of the relator that the closing words of section 2,—

“and in respect of communicating or divulging any statement made by such witnesses during the course of such inquiry the justice, judge, prosecuting attorney, etc. * * * shall be governed by the provisions of the law relative to grand jurors,”

—were intended by the legislature to operate as a limitation upon the power of the conservator of the peace and to enforce secrecy on the part of the officer making the investigation in the same manner as secrecy is enjoined upon grand jurors in the course of their investigation. The oath of a grand juror set forth in section 15703, 3 Comp. Laws 1915, provides in part:

“your own counsel, and the counsel of the people and bf your fellows you shall keep secret.”

Section 15713 follows:

“No grand juror or officer of the court shall disclose the fact that any indictment for a felony has been found against any person not in custody or under recognizance, otherwise than by issuing or executing process on such indictment, until such person has been arrested.”

Assuming, as was apparently assumed by the recorder, that in making the investigation he was exercising functions analogous to those of a grand jury, it is the contention of relator that the so-called “presentment” filed by him should, upon application, have been expunged from the records under the authority of Bennett v. Kalamazoo Circuit Judge, 183 Mich. 200. A comprehensive review of the authorities touching the matter of presentments and indictments by grand juries will be found in that case and need not here be repeated.

It is, we think, clear, that the respondent, acting either as a conservator of the peace or in the exercise of powers analogous to those possessed by grand juries, was without power to make his so-called “presentment” a part of the official records of his court. On behalf of the respondent it is urged that the fact that some three months later warrants were issued out of his court formally charging the petitioner with the commission of various offenses recited in the so-called “presentment” is sufficient to distinguish the case at bar from Bennett v. Kalamazoo Circuit Judge, supra. This argument is not without force, but in the light of the reasoning of the decisions digested. in that opinion we believe that the subsequent, though tardy, issuance of the warrants does not validate an act which at the time of its performance was unwarranted. It is quite true, as contended on behalf of the respondent, that the subsequent issuance of the warrants has made public in a legal way the matter contained in the “presentment,” but we are unable to see how this fact should affect the determination of a naked legal question.

The mandamus will issue as prayed.

Bird, C. J., and Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit.