People v. King

205 N.W. 154, 232 Mich. 443, 1925 Mich. LEXIS 873

• Court: Michigan Supreme Court
• Decided: October 1, 1925
• Docket: Docket No. 86.
• Status: Published

Opinions

Clark, J.

Complaint on oath was made on October 30, 1923. It charged defendant with a sale of spirituous and intoxicating liquor on October 17, 1923. Examination was on November 1, 1923. Defendant was committed for trial. Information was filed November 5, 1923. Before a jury was sworn, and on March 20, 1924, defendant filed a motion to quash, the denial of which presents the main question, which is, that there was no evidence before the committing magistrate of when the sale was made and that, therefore, he had no right to commit.

A witness at the examination testified of purchasing the liquor on October 17th, but did not state the year. The record does not show that this matter was called to the attention of the magistrate by motion to dismiss, request, objection, or otherwise. The question was raised for the first time by the motion in the circuit court. Technical nicety would have been served by evidence of the date in full. But defendant was not misled. The sworn complaint gave the date. She was prejudiced in none of her rights. Justice requires that defendant should not be permitted to raise this question first in the circuit court. People v. Hare, 57 Mich. 505; People v. Dowd, 44 Mich. 488; People v. Brott, 163 Mich. 150, including separate opinion of Mr. Justice Blair.

We do not follow counsel in urging that there is the same infirmity of evidence at the trial. The principal witness testified at the trial on August 12, 1924:

“I knew the respondent from about the first of October, 1923. She lived in the city of Grand Haven on the north side of Washington street west of Second street above a millinery store.

“Q. Were you at her place in October?

“A. Yes, about the 17th of October.

(Objection.)

(Witness continuing): “I was at respondent’s home just shortly before dinner. I purchased a pint of moonshine whisky.” * * *

If this testimony is not directly to the point that the sale was on October 17, 1923, it is capable, reasonably, of that inference. The witness knew defendant from about October 1, 1923. No other October intervened between that time and the trial. Clearly the witness when he said “October 17th” meant October 17, 1923. See People v. Perry, ante, 483.

The verdict is supported sufficiently by evidence.

Affirmed. Remanded for judgment.

McDonald, C. J., and Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred with Clark, J.