People v. Sutherland

Long, J.

Respondent was convicted of an assault with intent to do great bodily harm less than the crime of murder. Upon being arraignbd, he refused to plead, and his counsel moved to quash the information, for the reasons:

1. That the papers filed in said case, purporting to be the return of the justice, had no certificate.

2. That the respondent had had no examination according to the statute.

3. Thaf the justice had no jurisdiction of the 'cause, and lhat the circuit court had no jurisdiction.

*470 4. That the justice did not find probable cause to suspect the respondent guilty of any offense.

5. That there was nothing to show that the evidence of the witnesses was reduced to writing, if there was any taken before the justice, or that the witnesses signed their testimony; nor that the respondent waived examination.

6. That the complaint did not show that there was a. felonious assault made.

■ These objections were overruled, which ruling raises the-first question in the case.

The whole of the proceedings had before the justice do-not appear to be in the record presented here, but from the part returned it appears that the justice did certify asidlo ws:

“It appears to me that said offense has been committed, and there is just cause to suspect the said defendant to be-guilty thereof."

The statute for the examination of offenders provides-¿hat “if it shall appear that an offense not cognizable by a justice of the peace has been committed, and that there is probable cause to believe the prisoner guilty thereof, and if the offense be bailable," etc., the justice shall take bail, and, if no bail be offered, cbmmit the prisoner for trial. How- Stat. § 9471. This examination is not a judicial inquiry, in which the guilt or innocence of the party accused is finally decided upon, but an inquiry to ascertain whether the crime alleged has been committed, and whether there is reasonable ground to believe that the party accused may have -committed it. People v. Lynch, 29 Mich. 279 . The certificate made by the justice was sufficient to confer jurisdiction upon the circuit court to try the cause. He does certify that it appeared that said offense had been committed, and that there was just cause to suspect the respondent to be guilty thereof. He used the word “suspect" and not “believe." This is sufficient, and a sufficient finding of probable cause.

*471 We are unable to say that tbe examination was not full! and complete, as tbe full return of tbe examination is not-in tbe record. The offense was set up in the complaint- and warrant.

It is contended, however, that the justice had no jurisdiction of the cause. The complaint recites that—

“ On the 14th day of June, A. D. 1893, * * * George Sutherland, with force and arms, in and upon him, the said Wily Putnam, did make an assault, and him, the said Wily Putnam, did beat, bruise, wound, and ill treat, with intent then and there to do great bodily harm to him, the said Wily Putnam, less than murder.”

The warrant contained the same recital, and the contention is that no offense is stated within the terms of tha statute.

How. Stat. § 9122a, provides:

“ That any person who shall assault another with intent-to do great bodily harm less than the crime of murder-shall be punished,” etc.

It is contended that in leaving out the words “tha crime of” no offense is stated.

It does not appear from the record that this specifie objection was made in the court below, and the information followed the same form. The court below evidently regarded the words as contained in the complaint, warrant, and information, for, in the charge, the court, in stating the offense, employed the words of the statute, and his attention was not called, even at that time, to this omission in the pleadings. If the objection had been made at that time, an amendment would have been allowed,, under How. Stat. § 9535, which provides that—

“Every objection to any indictment, for any formal defect apparent on the face thereof, shall be taken by demurrer or 'motion to quash such indictment before the jury shall be sworn, and not afterwards; and every court before whom such objection shall be taken for any formal *472 defect may, if it be thought necessary, cause the indictment to be forthwith amended in such particular, and thereupon the trial shall proceed as if no defect had .appeared.”

As this defect was one which would have been amended if attention had been called to it, it must, after verdict, be disregarded. Merwin v. People, 26 Mich. 305 .

Some testimony was given under objection, for the purpose of showing the violence of the assault as bearing upon the question of intent. The testimony was admissible, and was properly explained to the jury in the general charge, as follows:

“ The people claim that the respondent, at the place .and time alleged, made an unprovoked assault upon the •complaining witness; that he kicked him in the face, producing a fracture of the jaw; that he knocked him down, and kicked him several times in the chest; and that such blows and kicks were given by the respondent with intent ■to do him, Putnam, great bodily harm less than the crime ■of murder. * * * In order to find the intent to -do great bodily harm by breaking the jaw, you must find ■that the respondent contemplated such a result. You must consider the means which the respondent employed, ¡ancf whether the use of such means would naturally lead ito such a result. It may not have been necessary that the ■respondent should have contemplated precisely such a result as a fracture of the jaw, but it is necessary that you should find he contemplated a result that would have produced great bodily harm or serious injury.”

^Respondent sought to show upon the trial a justification •for the act, and upon that question the court charged the jury:

“ If you believe from the evidence that the complaining witness went to the respondent’s house, and accused his family, as it is claimed he did, the respondent had the' right, in defense of his family and dwelling-house, to expel the complaining witness from his dwelling-house and premises, and to use all reasonable and necessary means and force to compel him to depart.”

*473 No written requests to charge were presented, and it is apparent that the charge as given stated the law applicable to the case. Many objections are made to the charge, but we do not deem it necessary to discuss them specifically, as we find no error in the charge as a whole.

Several other objections are made to the testimony introduced.. Such objections will be discussed so far as we deem it necessary.

The complainant, Wily Putnam, was called as a witness, and without objection detailed with great minuteness the assault, and the result upon himself. He was asked:

“Have you any wounds now upon your face in consequence of the kicking by respondent?”

This was objected to as immaterial, and admitted.

“A. Yes, sir; under my chin.

“ Q. Have they been running ever since? (Objected to as incompetent.)

“A. It has been running ever since. Two or three weeks after the assault, a big abscess formed, and the doctor lanced it, and quite a number of hones worked out.”

This testimony was competent as showing the aggravated character of the assault, and there was no error in permitting the witness to exhibit his injuries to the jury.

On cross-examination, respondent’s counsel asked the witness if he had been arrested for being drunk, and he answered that he had. He was then asked: “Since this trouble, how many times have you been drunk?” This was properly excluded. It had no bearing whatever on the issues involved in the case.

Some questions are raised in reference to the cross-examination of the respondent. He was sworn and examined in chief by his counsel. It was proper on cross-examination to go as fully into his antecedents as it would have been with any other witness in the case. Under the *474 statute the respondent in a criminal case may now be sworn in his own behalf. When introduced as a witness, he is subject to the same rules of cross-examination as any other witness in the case; and we find nothing improper in the cross-examination.

The judgment must be affirmed.

McGrath, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.