Opinion
Docket No. 16059.
Decided March 27, 1974.
Appeal from Clinton, Leo W. Corkin, J. Submitted Division 3 December 6, 1973, at Grand Rapids. (Docket No. 16059.) Decided March 27, 1974.
Richard D. Collins was convicted of first-degree murder. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Jon Newman, Prosecuting Attorney, for the people.
Richard D. Collins, in propria persona.
Before: T.M. BURNS, P.J., and HOLBROOK and McGREGOR, JJ.
Defendant was arrested without a warrant on May 22, 1972, for the murder of a grocery-store owner. The following morning, pursuant to MCLA 764.13; MSA 28.871(1), trooper Gary Jacobson signed complaints charging the defendant, inter alia, with felony murder. MCLA 750.316; MSA 28.548. Defendant was arraigned before the district judge on June 14, 1972, and was bound over to the circuit court for trial. On June 26, 1972, an information was filed in the Clinton County Circuit Court; however, the arraignment scheduled for that date was adjourned to permit the defendant an opportunity to file a motion to quash.
On July 24, 1972, defendant Collins filed a motion to quash the information and dismiss the case. Argument was had on the motion on September 5, 1972, and the circuit court denied the motion.
Trial commenced on September 26, 1972, and concluded on October 2, 1972, with a jury verdict of guilty of murder in the first degree. Defendant was sentenced on October 5, 1972, to life imprisonment and now appeals.
The sole issue raised by defendant on appeal is whether a conviction based upon an information and belief complaint, written as an eyewitness complaint, is fatally defective when the complaint failed to allege the grounds upon which the complainant's information and belief were based.
Defendant contends that the warrant in the instant case was unconstitutionally issued since it was based on a complaint which was conclusory and which failed to identify sources of information. He further contends that his arrest under the complaint and warrant constituted a violation of his rights guaranteed by the Fourth and Fourteenth Amendments of the United States Constitution and Const 1963, art 1, § 11. Therefore, defendant maintains that since his arrest was illegal, jurisdiction over his person never attached and his conviction is null and void.
The complaint against defendant does not state that it was made on information and belief. In People v Mosley, 338 Mich. 559, 564; 61 N.W.2d 785 (1953), the Court stated:
"This Court, in People v Lynch, 29 Mich. 274 (1874); Potter v Barry Circuit Judge, 156 Mich. 183; 120 N.W. 586 (1909); and People v Czckay, 218 Mich. 660; 188 N.W. 376 (1922), settled the question that a complaint which, upon its face, purports to be made upon the knowledge of the affiant, is a sufficient complaince with the statute, and that it is incompetent for a defendant, upon arraignment, to impeach the complaint by showing a lack of knowledge by the complaining witness."
Such is the case here. Since the complaint appeared to be made upon the knowledge of the affiant, trooper Jacobson, defendant was precluded from impeaching the complaint by showing that trooper Jacobson was without personal knowledge of the commission of the crime or the identity of the defendant.
Although People v Mosley, supra, may be under some question by reason of the statement of the majority of the Court in the case of People v France, 370 Mich. 156; 121 N.W.2d 476 (1963), of an inclination to reexamine the Mosley rule, "under a proper record", we do now, as previously in People v Roney, 7 Mich. App. 678; 153 N.W.2d 175 (1967), and People v Linscott, 14 Mich. App. 334; 165 N.W.2d 514 (1968), rule that we have no basis for proceeding on the assumption that People v Mosley, supra, and cases therein cited are not still controlling authority.
We are also aware that in People v Hill, 44 Mich. App. 308; 205 N.W.2d 267 (1973), where the facts are almost identical to the instant case, the Court in citing Giordenello v United States, 357 U.S. 480; 78 S Ct 1245; 2 L Ed 2d 1503 (1958), and Whiteley v Warden, Wyoming State Penitentiary, 401 U.S. 560; 91 S Ct 1031; 28 L Ed 2d 306 (1971), to define the Fourth Amendment requirements as to probable cause sufficient to justify the issuance of a warrant, interpreted the Giordenello decision as overruling the long line of Michigan cases preventing a defendant from impeaching the complaint by showing a lack of personal knowledge of the complaining witness when the complaint purports to be made by an eyewitness. We decline, however, to follow this interpretation and find People v Mosley, supra, persuasive.
There is ample Michigan authority to the effect that the positive sworn statements of the complaining witness conferred jurisdiction upon the district court to conduct a preliminary examination and upon the trial court to conduct a trial of the defendant. People v France, supra; People v Mosley, supra; People v Hernandez, 41 Mich. App. 594; 200 N.W.2d 447 (1972); People v Linscott, supra.
Furthermore, once the court obtains jurisdiction over the defendant, proof of an invalid arrest warrant does not divest the court of jurisdiction. Regardless of the means used to bring him within the court's jurisdiction, both Federal and Michigan cases uphold the power of a court to try a defendant. People v Hernandez, supra; People v Martin, 386 Mich. 407; 192 N.W.2d 215 (1971); Ker v Illinois, 119 U.S. 436, 7 S Ct 225; 30 L Ed 421 (1886).
Defendant's rights have been fully protected, and he was not bound over for trial without a determination that there was probable cause to believe that he committed the crime. The fact that the complaint was based on the complainant's information and belief, rather than his personal knowledge, does not divest the court of jurisdiction to try the case. State v Keating, 108 N.H. 402; 236 A.2d 684 (1967). See also People v Miller, 235 Mich. 340; 209 N.W. 81 (1926); 5 Am Jur 2d, Arrest, § 116, p 796.
For the reasons set forth above, we hold that the trial court did not err in denying defendant's motion to quash the information.
Affirmed.
All concurred.