People v. Davis , 11 Mich. App. 461 ( 1968 )

11 Mich. App. 461 (1968) 161 N.W.2d 443

PEOPLE
v.
DAVIS.

Docket No. 3,830.

Michigan Court of Appeals.

Decided May 28, 1968. Leave to appeal denied April 15, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.

Harris, Stein & Hooberman, for defendant.

T.G. KAVANAGH, P.J.

On September 30, 1965 defendant was arrested upon charges of kidnapping^[1] and rape.^[2] He was arraigned on the warrant in recorder's court, city of Detroit, on October 1, 1965, at that time being represented by retained counsel. The judge set October 11, 1965 as the date for the preliminary examination. When' defendant appeared at the examination without counsel, the court appointed counsel for him and adjourned the matter until October 12, on which date the examination was held and defendant bound over for trial. Subsequently, a jury convicted defendant on both charges and he was sentenced to a prison term of 10 to 20 years on each charge, to be served concurrently. He appeals on 3 grounds:

1. The court failed to conduct the preliminary examination within 10 days of the arraignment on the warrant, in accordance with CL 1948, § 766.4 (Stat Ann 1954 Rev § 28.922).

2. The court erred in failing to appoint counsel for defendant until the date set for the examination.

3. The court erred in failing to rule upon a motion filed by defendant in propria persona.

The statute upon which defendant relies to support his first ground for reversal provides:

"The magistrate before whom any person is brought on a charge of having committed an offense not cognizable by a justice of the peace, shall set a day for examination not exceeding 10 days thereafter, at which time he shall examine the complainant and the witnesses in support of the prosecution, on oath in the presence of the prisoner, in regard to the offense charged and in regard to any other matters connected with such charge which such magistrate may deem pertinent." CL 1948, § 766.4 (Stat Ann 1954 Rev § 28.922).

In the case at bar, during the October 1 proceedings the judge set the preliminary examination for October 11, which was within the required 10-day period. However, defendant appeared at the examination without an attorney. The judge promptly appointed one for him and adjourned the matter for one more day to permit defendant to consult with his attorney. Since the purpose of the adjournment was to insure to defendant the full enjoyment of his constitutional right to counsel, we hold that there was no error.

Defendant urges, however, that the court should have appointed counsel for him at the time of the arraignment on the warrant because the counsel representing him then was appearing only for the purpose of that proceeding. There is nothing in the record to indicate, and defendant does not claim, that either he or his attorney requested the arraigning judge to appoint counsel to represent defendant in subsequent proceedings. Certainly the judge was justified in assuming that since defendant had retained counsel for the arraignment he would do so for any further proceedings as well. Moreover, by entering a plea of not guilty and going to trial, defendant is estopped to assert any defect in the prior proceedings. See People v. Tate (1946), 315 Mich. 76 and People v. Barmore (1962), 368 Mich. 26.

After counsel had been appointed to represent him defendant submitted, in propria persona, a hand-printed motion for dismissal of the charges against him. He claims that it was error for the court to fail to rule upon his motion. The substance of this motion is to the effect that the charges should be dismissed because the examination was not held within 10 days of the arraignment on the warrant. In the light of our disposition of defendant's first asserted question on appeal we find no reversible error.

Affirmed.

LEVIN and BEER, JJ., concurred.

NOTES

[1] CL 1948, § 750.349 (Stat Ann 1954 Rev § 28.581).

[2] CL 1948, § 750.520 (Stat Ann 1954 Rev § 28.788).