People v. Whelan

Michigan Supreme Court

People v. Whelan

214 N.W. 404, 239 Mich. 428, 1927 Mich. LEXIS 789

CourtMichigan Supreme Court

DecidedJune 24, 1927

DocketDocket No. 157.

StatusPublished

This text of 214 N.W. 404 (People v. Whelan) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Whelan, 214 N.W. 404, 239 Mich. 428, 1927 Mich. LEXIS 789 (Mich. 1927).

Pincite

Opinions

Counsel for defendant have been very fair, both to the trial court and to this court. They frankly and properly concede that the conviction should be affirmed unless the affidavit upon which the search warrant was issued was defective. They insist, however, that the use of the name Richard Roe in the affidavit renders that instrument a nullity, the evidence showing that such was *Page 432 not the true name of the man who accompanied the deputy sheriff to defendant's premises. For ages the names John Doe and Richard Roe have been used in pleadings and other legal documents to designate persons whose true names were unknown. The testimony of the deputy sheriff who made the affidavit in question is to the effect that the true name of this person was unknown to him. Under these circumstances, in my judgment the affidavit was not defective because, instead of using the language, a person "whose true name is unknown" to deponent, it used a name which from time immemorial has been used as the equivalent of such language. Upon principle, I think the case falls within the ruling in People v. Starkweather, 224 Mich. 137 . For this reason I am constrained to dissent from the opinion prepared by my Brother BIRD.

The conviction is affirmed.

SHARPE, C.J., and SNOW, STEERE, CLARK, and McDONALD, JJ., concurred with FELLOWS, J.

Free access — add to your briefcase to read the full text and ask questions with AI

Counsel for defendant have been very fair, both to the trial court and to this court. They frankly and properly concede that the conviction should be affirmed unless the affidavit upon which the search warrant was issued was defective. They insist, however, that the use of the name Richard Roe in the affidavit renders that instrument a nullity, the evidence showing that such was *Page 432 not the true name of the man who accompanied the deputy sheriff to defendant's premises. For ages the names John Doe and Richard Roe have been used in pleadings and other legal documents to designate persons whose true names were unknown. The testimony of the deputy sheriff who made the affidavit in question is to the effect that the true name of this person was unknown to him. Under these circumstances, in my judgment the affidavit was not defective because, instead of using the language, a person "whose true name is unknown" to deponent, it used a name which from time immemorial has been used as the equivalent of such language. Upon principle, I think the case falls within the ruling in People v. Starkweather, 224 Mich. 137 . For this reason I am constrained to dissent from the opinion prepared by my Brother BIRD.

The conviction is affirmed.

SHARPE, C.J., and SNOW, STEERE, CLARK, and McDONALD, JJ., concurred with FELLOWS, J.

Cite This Page — Counsel Stack

Bluebook (online)

214 N.W. 404, 239 Mich. 428, 1927 Mich. LEXIS 789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-whelan-mich-1927.

Opinions

Related

Cite This Page — Counsel Stack