People v. Absher

• Decision Date: 29 July 1927
• Docket Number: June Term.,No. 106,106
• Citation: 214 N.W. 954,240 Mich. 107
• Parties: PEOPLE v. ABSHER.
• Court: Michigan Supreme Court

240 Mich. 107

214 N.W. 954

PEOPLE

v.ABSHER.

No. 106, June Term.

Supreme Court of Michigan.

July 29, 1927.

Error to Circuit Court, Ingham County; Charles B. Collingwood, Judge.

Sam Absher was convicted of a second offense of possessing intoxicating liquor, and he brings error. Judgment affirmed.

Argued before the Entire Bench.

John F. Berry, of Detroit, for appellant.

W. W. Potter, Atty. Gen., and Barnard Pierce, Pros. Atty., and Joseph W. Planck, Asst. Pros. Atty., both of Lansing, for the People.

STEERE, J.

On March 11, 1927, defendant was convicted and sentenced in the circuit court of Ingham county for unlawfully having in his possession a quantity of intoxicating liquor, charged as a second offense. The case is here for review on exceptions directed to refusal of the court to discharge defendant on his preliminary examination, and also when arraigned in the circuit court later, on the ground that his arrest was unlawful, for error in rulings during the trial and in the charge of the court. All questions raised and argued were saved by motions timely made, objections, and exceptions.

The testimony shows that on the evening of June 7, 1926, state troopers Spencer and Menard, of the Michigan state police, stationed at the Harrison Avenue state police post adjacent to East Lansing were instructed by Lieut. Lyons, their commanding officer, to patrol out East Grand River avenue on M-16 east, the main traveled thoroughfare between Lansing and Detroit, and watch for a Hudson coupé, Michigan license 248, which was then coming toward Lansing from the east, and, if it came along, to arrest the driver and bring him in, as the coupé was supposed to have a load of liquor, ‘and to use caution in making the arrest, because either one or both of the men in it were known to have served a previous sentence for violation of the prohibition law.’ Lieut. Lyons testified that he was stationed at the state police barracks on Harrison avenue near East Lansing in charge of the First district of the state department of public safety, which included Ingham, Livingston, Eaton, and other adjacent counties in that portion of the state. Troopers Spencer and Menard were serving under him and subject to his orders. On the evening of June 7, 1926, he received a telephone message from one of his men at a point east of Lansing, the important portion of which he made a pencil notation and distinctly remembered, saying in part:

‘He told me there was a Hudson coupé bearing Michigan license 248 coming in towards Lansing which would probably be in on M-16 in a very short time. * * * He said the Hudson coupé had a load of liquor. * * * Following this conversation, I immediately instructed troopers Spencer and Menard to take their motorcycles and go out on M-16 east of East Lansing and watch for this car, and, if it came along, to bring the driver in and the car.’

After receiving their instructions Spencer and Menard at once proceeded through East Lansing out to a gasoline station on M-16 near the end of the boulevard, where they waited until they saw a Hudson coupé having the license number given them by Lieut. Lyons coming from the east toward Lansing. After it passed the gas station they mounted their motorcycles and followed until it reached the main corner of East Lansing opposite the State College Cafeteria, where they stopped it, and Spencer asked the driver for his operator's license, which he produced, and then for the registration of his car, which he said he did not have, as the car belonged to a man named Howdy at Pine Lake. The driver was defendant. Absher, and a man named Joe Howard was riding with him. Spencer asked Absher if he was traveling light or heavy and he said light. Spencer testified he then asked him:

‘If we might look into the rear of the car, and he said surely; go ahead; but, when we went to the rear of the car, we found the rear compartment locked. I asked him for the key, and he said he didn't have it; that the car wasn't his; * * * that this man Howdy, who he named as the owner of the car, had that key.’

Spencer then told him to accompany them to the police station, which he did. Some time later, and before further search of the car was made, Spencer told him he was under arrest for speeding, in relation to which he testified that as they followed the coupé into the city of East Lansing he noticed their speed, his motorcycle being equipped with a speedometer, which showed that they were going from 30 to 31 miles an hour, exceeding the speed limit in East Lansing. When they reported with defendant and the coupé at the police station they made further search of the car and found a small leather folder containing some keys, one of which unlocked the back compartment. They found in the car some bottles of whisky and a case of beer. The customary prosecution proceedings were had, in which this alleged violation of the prohibition law was charged as a second offense. A portion of the liquor seized by the officers with proof of its intoxicating properties was introduced in evidence on the preliminary examination before the committing magistrate and at the trial. Objections and motions to suppress the evidence and discharge defendant were duly made at the preliminary examination, and in the circuit court both before and during the trial.

Defendant's assignments of error are condensed for consideration to denial of those motions, refusal to ‘quash the information and to strike therefrom the count charging the offense in question as a second offense,’ and errors in the charge.

Aside from the general contention that a verdict should have been directed for defendant, the claim of error in the charge is against the following excerpts from the beginning and end of a paragraph submitting the validity of the seizure to the jury:

‘Now, under our law any constable or sheriff may arrest any person whom he suspects or has reasonable grounds of suspecting that he has committed or is committing a felony. * * * The court so held, that the evidence was a proper one to come before you.’

The entire paragraph reads as follows:

‘Now, under our law any constable or sheriff may arrest any person whom he...