People v. Miklovich

Kelly, J. Defendant and appellant, having been convicted by a jury of negligent homicide, appeals from the judgment and sentence of the Tuscola county circuit court that “defendant pay a fine of $1,500 and costs of $100.” The first preliminary examination of defendant, who was originally charged with having committed the crime of involuntary manslaughter on or about October 21, 1957, was held January 15, 1958 and defendant was bound over to circuit court. Prior to trial, set for May 1, 1958, defendant filed a motion to quash the information on the ground, that the evidence produced at the preliminary examination did not establish probable cause to believe the defendant guilty of the crime charged. The trial court granted defendant’s motion but also granted the oral motion of the prosecutor to remand the cause to the examining magistrate for a further preliminary examination. On February 20, 1959, a second preliminary examination was held over defendant’s objection that the magistrate had no jurisdiction over the cause. At the conclusion of the hearing, the examining magistrate took the matter under advisement. No further proceedings were had until February 2, 1962, when the prosecutor filed the return of the examining magistrate dated February 2, 1962, bind *538 ing defendant over to circuit court and also filed an information charging defendant with the crime of negligent homicide. Defendant was arraigned on February 10, 1962, at which time he stood mute and notified the court of his intention to file a motion to dismiss. Thereafter, on March 21, 1963, defendant filed a motion to dismiss the information, which motion was denied by the trial court. In November, 1963, defendant was tried and found guilty of negligent homicide. On appeal, defendant asserts that the circuit court was without jurisdiction on May 1, 1958, to remand the cause for further examination when the record did not support a finding of probable cause to believe defendant guilty of the crime charged; that the failure of the prosecution to file an information between February 20, 1959, and February 2, 1962, constitutes a violation of defendant’s rights to a speedy trial under the Constitution and statutes of Michigan; and that such delay also constitutes a violation of defendant’s due process rights under the 14th Amendment to the United States Constitution. In support of his contention that the circuit court had no jurisdiction to remand to the examining magistrate, defendant argues that since under CL 1948, § 766.13 (Stat Ann 1954 Rev § 28.931) 3 the magistrate must discharge the defendant if he finds *539 that no offense has been committed or that there* is not probable cause for charging the defendant! therewith, it therefore follows that the circuit court! upon a similar finding, under a motion to quash' the information, has no authority to order a further-examination. Defendant’s argument is without merit. The discharge by an examining magistrate upon examination of a person accused of a crime is not a bar to his subsequent arrest, examination, and trial for the same offense because he has not been placed in jeopardy. 4 Jurisdiction, having once vested in the circuit court, was not lost by virtue of the granting of the motion to quash the information. 5 Therefore, the circuit court had authority, upon motion of the prosecutor, to remand to the examining magistrate for further examination. Defendant’s next contention that his right to a speedy trial under the statutes and Constitution of the State of Michigan has been violated is foreclosed by People v. Duncan, 373 Mich 650, in which case this Court unequivocally stated that an accused’s constitutionally guaranteed right to a speedy trial must be asserted by a “formal demand on the record.” The record in this case is devoid of any such demand by defendant during the period from February 20, 1959, to February 2, 1962. The Federal courts, in applying the 6th Amendment right to a speedy trial provision have also adopted the rule enunciated in People v. Duncan, supra. See United States v. Lustman (CCA2, 1958), 258 F2d 475, certiorari denied, 358 US 880 (79 S Ct 118; 3 L ed 2d 109 [1958]). It has also been held that the due process clause of the 14th Amendment does not make the speedy trial provisions of the *540 6th Amendment directly applicable to State action— that to establish a violation of the due process clause, defendant must prove that the delay precluded a fair determination of the charges against him. United States, ex rel. Von Cseh, v. Fay (CCA 2), 313 F2d 620, citing cases. Defendant makes no showing that he has been deprived of a fair trial; only that he has been denied a speedy trial. Since he has failed to assert such constitutional right, it cannot be argued that he has thus been denied due process under the 14th Amendment to the United States Constitution. Affirmed. Dethmers, Black, Souris, O’Hara, and Adams, JJ., concurred with Kelly, J. T. M. Kavanagh, C. J., and Smith, J., concurred in result. Footnotes [3] “If it shall appear to the magistrate upon the examination of the whole matter, either that no offense has been committed or that there is not probable cause for charging the defendant therewith, lie shall discharge sueh defendant. If it shall appiear to the magistrate upon the examination of the whole matter, that an offense not cognizable by a justice of the peace has been committed and there is probable cause for charging the defendant therewith, said magistrate shall forthwith bind such defendant to appear before the circuit court of sueh county or any court having jurisdiction of said cause, for trial.” [4] Gaffney v. Missaukee Circuit Judge, 85 Mich 138; People v. Tillard, 318 Mich 619. [5] Dimmers v. Hillsdale Circuit Judge, 289 Mich 482,