Opinion
Docket No. 77-2285.
Decided September 19, 1978. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Rita Chastang, Assistant Prosecuting Attorney, for the people.
Lawrence R. Greene, for defendant.
Defendant was originally charged in the Recorder's Court with aggravated assault, MCL 750.81(a); MSA 28.276(1). He was found guilty of the included offense of assault and battery, MCL 750.81; MSA 28.276, and appeals as of right.
Defendant first contends that under the Rules for the Recorder's Court of Detroit, Rules 7 and 8, and under the authority of People v Barbara, 390 Mich. 377; 214 N.W.2d 833 (1973), a defendant charged with a high misdemeanor in Recorder's Court has a right to preliminary examination. While this right is usually only recognized in the case of a felony, defendant is correct that by law a different rule is to be applied in the Recorder's Court.
While we recognize defendant's contention under Barbara, the statute on which that case relied has since been amended. MCL 767.42; MSA 28.982, at the time of the Barbara decision provided that:
"No information shall be filed against any person for any offense until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace or other examining magistrate or officer, unless such person shall waive his right to such examination." (Emphasis supplied.)
The amendment, enacted in 1974 states:
"Sec. 42. (1) An information shall not be filed against any person for a felony until such person has had a preliminary examination therefor, as provided by law, before an examining magistrate, unless that person waives his statutory right to an examination."
The clear implication of the statutory change was to eliminate the necessity for preliminary examinations in misdemeanor cases.
In our opinion, Recorder's Court Rules 7 and 8 do not clearly require preliminary examinations in misdemeanor cases so as to abrogate the statute. Rule 7 does not speak to the requirement at all. Rule 8 states that:
"The Examining Magistrate shall conduct all Preliminary Examinations and all arraignments on felony and high misdemeanor warrants * * *." (Emphasis supplied.)
In the absence of any specific court rule or opinion abrogating the clear import of the amended statute, we conclude that there is no right to a preliminary examination in misdemeanor offenses.
Defendant's second contention that he was prejudiced by the failure of the warrant and complaint to be more specific as to the nature of the charge against him is without merit. An information is sufficient if stated in the language of the statute, People v Lightstone, 330 Mich. 672; 48 N.W.2d 146 (1951).
In any event, the time for a defendant to object to the form of an information is prior to trial. The defendant did not object until the close of the people's case. In the absence of a showing that the trial court abused its discretion in disregarding defendant's objection, this Court will not reverse. People v Reed, 17 Mich. App. 696; 170 N.W.2d 303 (1969), lv den 383 Mich. 769 (1970).
Affirmed.
C.W. SIMON, JR., J., concurred.
I respectfully dissent. In People v Barbara, 390 Mich. 377; 214 N.W.2d 833 (1973), our Supreme Court unanimously held that Detroit Recorder's Court Rule 8, the rule in question here, gave defendants in high misdemeanor cases the right to a preliminary examination. I do not believe the option of interpreting the rule differently is open to us.
It is, of course, true that after the decision in Barbara the Legislature amended the preliminary examination statute. Review of Barbara, however, demonstrates quite clearly that our Supreme Court relied on the court rule, not the statute, in determining that high misdemeanor defendants in Detroit Recorder's Court are entitled to preliminary examinations. Barbara at 382b-382d. Therefore, the amendment of the statute cannot affect a defendant's separate rights under the court rule unless it can be said that the statute overrules the court rule. This is not the case here. As amended, the statute does not preclude preliminary examinations in high misdemeanor cases. Compare MCL 600.8311; MSA 27A.8311 with MCL 767.42; MSA 28.982. Instead, the statute merely states there shall be a statutory right to a preliminary examination in all felony cases. Since it does not preclude preliminary examination in high misdemeanor cases, it neither conflicts with nor overrules Detroit Recorder's Court Rule 8, and there is no need to decide which is controlling. See, e.g., People v Mordell, 55 Mich. App. 462; 223 N.W.2d 10 (1974), People v Williams # 2, 45 Mich. App. 630; 207 N.W.2d 180 (1973). Rule 8 merely affords defendants additional rights to those granted by the statute.
Since the statute did not contradict nor overrule the court rule, and our Supreme Court has held that the court rule grants defendants in high misdemeanor cases the right to preliminary examinations, defendant was entitled to a preliminary examination. The refusal to grant his timely request for one constitutes reversible error.