People v. MacHus , 321 Mich. 353 ( 1948 )

On leave granted, the defendant appeals from an order entered in the recorder's court for Detroit denying a motion to set aside his sentence and allow him to withdraw his plea of guilty to the crime of murder.

The information on which the plea of guilty was entered charges that the defendants "feloniously, wilfully and of their malice aforethought, did kill and murder one Casimir Kliszewski; contrary to the form of the statute," et cetera. It does not specify the degree of the murder, nor does it specify the manner, method, means or circumstances attending the alleged crime. The defendant on his plea of guilty was sentenced to life imprisonment in State prison. No witnesses were sworn and no testimony was taken to determine the degree of the crime.

In People v. Martin, 316 Mich. 669, this Court has recently held that under the above circumstances the sentence is invalid. The statute^* requiring the court to examine witnesses to determine the degree of the crime, under the above circumstances, is mandatory; and the fact that this defendant later in the subsequent examination of a codefendant testified to the manner and means whereby the crime was perpetrated does not constitute an exception to the requirement of the statute or cure the failure to comply with it.

Appellee refers to People v. Grillo, 319 Mich. 586, where the defendant, charged with murder, pleaded guilty to second-degree murder and was sentenced therefor. It was held that there was no necessity to examine witnesses to determine the degree of the crime. Obviously the circuit judge, having accepted the plea of guilty of second-degree murder, was under no compulsion to take testimony to show whether the defendant was guilty of first-degree murder; and it was held that manslaughter is not a degree of the crime of murder. The Grillo Case does not control here. In the case at bar the sentence is invalid and must be set aside.

Appellee relies on People v. Furkas, 255 Mich. 533, and claims that it would be "a gross travesty of justice" to permit the defendant to withdraw his plea of guilty. In that case the defendant, charged with arson, after making a written confession, pleaded guilty. Subsequently, on the trial of his accomplices, he testified along the line of his confession. Later, he made a written statement retracting such testimony, and at the same time, before sentence, moved to withdraw his plea of guilty. Under more recent decisions leave to withdraw his plea should have been granted. People v.Piechowiak, 278 Mich. 550; People v. Wexner, 280 Mich. 696;People v. Street, 288 Mich. 406; People v. Stone,293 Mich. 658; People v. Vasquez, 303 Mich. 340.

An order may be entered setting aside the sentence, remanding the case to the recorder's court for entry of an order granting defendant's motion for leave to withdraw his plea of guilty, and for arraignment and further proceedings on the information filed.

BUSHNELL, C.J., and SHARPE, REID, NORTH, DETHMERS, BUTZEL, and CARR, JJ., concurred.

^* 3 Comp. Laws 1929, § 16710.