#### PEOPLE *v.*DAVIS.

1. Criminal Law — Preliminary Examination — Time.

Preliminary examination of a person charged with an offense not cognizable by a justice of the peace shall be set by the magistrate before whom the person is brought for a time not to exceed 10 days thereafter (CL 1948, § 766.4).

2. Same — Preliminary Examination — Adjournment.

Adjournment of preliminary examination, originally set for 10th day after the aeeused was brought before a magistrate, to 1 day later, to permit defendant to consult with his court-appointed attorney *held,*not error where defendant had appeared at the examination at the appointed time without an attorney (CL 1948, § 766.4).

References por Points in Headnotes

[1] 21 Am Jur 2d, Criminal Law §§ 442, 445, 449.

[2] 21 Am Jur 2d, Criminal Law § 449.

[3] 21 Am Jur 2d, Criminal Law § 313.

[4] 21 Am Jur 2d, Criminal Law §§ 513, 517.

*4623. Same — Appointment oe Counsel.

Failure of magistrate before whom defendant was brought on warrant charging him with kidnapping and rape to appoint counsel for him at that time to represent him at the preliminary examination set for 10 days later *held,*not error where the defendant was represented by counsel when he was brought before the magistrate, and neither defendant nor his attorney, who was appearing for the purpose of that proceeding only, requested the magistrate to appoint counsel to represent him in subsequent proceedings; defendant is estopped to assert the defect by entering a plea of not guilty and going to trial (CL 1948, §§ 750.349, 750.520).

4. Same — Motion to Dismiss.

Failure of. trial court to rule on defendant’s hand-printed motion to dismiss charges of kidnapping and rape against him, submitted *in propria persona*by defendant after counsel had been appointed to represent him, *held,*not error where the grounds urged for the motion were not found to be grounds for reversible error when raised again on appeal from conviction (CL 1948, §§ 750.349, 750.520).

Appeal from Recorder’s Court of Detroit, Groat (Gerald W.), J.

Submitted Division 1 January 18, 1968, at Detroit.

(Docket No. 3,830.)

Decided May 28, 1968.

Leave to appeal denied April 15, 1969.

Donald L. Davis was convicted of kidnapping and rape. Defendant appeals.

Affirmed.

*Frank J. Kelley,*Attorney General, *Robert A. Derengoski,*Solicitor General, *William L. Gahalan,*Prosecuting Attorney, *Samuel J. Torina,*Chief Appellate Lawyer and *Angelo A. Pentolino,*Assistant Prosecuting Attorney, for the people.

*Harris, Stein & Hooberman,*for defendant.

T. G. Kavanagh, P. J.

On September 30, 1965 defendant was arrested upon charges of kidnapping1*463and rape.2 He was arraigned on the warrant in recorder’s court, city of Detroit, on October 1, 1965, at that time being represented by retained counsel. The judge set October 11, 1965 as the date for the preliminary examination. When defendant appeared at the examination without counsel, the court appointed counsel for him and adjourned the matter until October 12, on which date the examination was held and defendant bound over for trial. Subsequently, a jury convicted defendant on both charges and he was sentenced to a prison term of 10 to 20 years on each charge, to be served concurrently. He appeals on 3 grounds:

1. The court failed to conduct the preliminary examination within 10 days of the arraignment on the warrant, in accordance with CL 1948, § 766.4 (Stat Ann 1954 Rev § 28.922).

2. The court erred in failing to appoint counsel for defendant until the date set for the examination.

3. The court erred in failing to rule upon a motion filed by defendant *in propria persona.*

The statute upon which defendant relies to support his first ground for reversal provides:

“The magistrate before whom any person is brought on a charge of having committed an offense not cognizable by a justice of the peace, shall set a day for examination not exceeding 10 days thereafter, at which time he shall examine the complainant and the witnesses in support of the prosecution, on oath in the presence of the prisoner, in regard to the offense charged and in regard to any other matters connected with such charge which such magistrate may deem pertinent.” CL 1948, § 766.4 (Stat Ann 1954 Rev § 28.922).

*464In the ease at bar, during the October 1 proceedings the judge set the preliminary examination for October 11, which was within the required 10-day period. However, defendant appeared at the examination without an attorney. The judge promptly appointed one for him and adjourned the matter for one more day to permit defendant to consult with his attorney. Since the purpose of the adjournment was to insure to defendant the full enjoyment of his constitutional right to counsel, we hold that there was no error.

Defendant urges, however, that the court should have appointed counsel for him at the time of the arraignment on the warrant because the counsel representing him then was appearing only for the purpose.of that proceeding. There is nothing in the record to indicate, and defendant does not claim, that either he or his attorney requested the arraigning judge to appoint counsel to represent defendant in subsequent proceedings. Certainly the judge was justified in assuming that since defendant had retained counsel for the arraignment he would do so for any further proceedings as well. Moreover, by entering a plea of not guilty and going to trial, defendant is estopped to assert any defect in the prior proceedings. See *People*v. *Tate*(1946), 315 Mich 76 and *People*v. *Barmore*(1962), 368 Mich 26.

After counsel had been appointed to represent him defendant submitted, *in propria persona,*a hand-printed motion for dismissal of the charges against him. He claims that it was error for the court to fail to .rule upon his motion. The substance of this motion is to the effect that the charges should be dismissed because the examination was not held within 10 days of the arraignment on the warrant. In the light of our disposition of defendant’s first *465asserted question on appeal we find no reversible error.

Affirmed.

Levin and Beer, JJ., concurred.

1

 CL 1948, § 750.349 (Stat Ann 1954 Eev § 28.581).

2

 CL 1948, § 750.520 (Stat Ann 1954 Rev § 28.788).