People v. Alexander, Docket No. 11882
| Decision Date | 29 March 1972 |
| Docket Number | No. 2,Docket No. 11882,2 |
| Citation | 39 Mich.App. 607,197 N.W.2d 831 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jesse ALEXANDER, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Arthur J. Tarnow, State Appellate Defender, Detroit, for appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce A. Barton, Pros. Atty., for appellee.
Before DANHOF, P.J., and T. M. BURNS and VanVALKENBURG, * JJ.
On January 10, 1971, defendant escaped from the trustee division of the State Prison in Jackson, Michigan. He was later apprehended and charged with the crime of prison escape. M.C.L.A. § 750.193; M.S.A. § 28.390. Defendant was tried by a jury on April 6, 1971, and was found guilty. He was sentenced to a term of from 1 1/2 to 5 years in prison, and he now appeals raising two issues.
As a result of defendant's escape, the warden of Southern Michigan Prison ordered two years of good time earned by the defendant forfeited. Defendant argues that this action, combined with the sentence of 1 1/2 to 5 years for the crime of escape, constitutes double jeopardy under the Fifth Amendment of the United States Constitution.
The same issue was before this Court in the case of People v. Wilson, 6 Mich.App. 474, 476--477, 149 N.W.2d 468, 469 (1967), where the Court stated:
'Article 1, § 15 of the Michigan Constitution of 1963 provides:
"No person shall be subject for the same offense to be twice put in jeopardy.'
'Amendment 5 of the United States Constitution makes the same provision but adds the words 'of life or limb.'
'Thus under either Constitution there are two elements in this interdict: (1) There must be successive subjection to 'jeopardy' and (2) in each instance the offense must be the same.
'In determining the identity of the offense it must be kept in mind that one act may constitute several offenses. For example, under proper circumstances the one act of a man robbing a store could properly support successive prosecutions for two offenses involved in the same act: armed robbery and carrying a concealed weapon.
'Unless the offense is a necessary element in and part of another, an acquittal or conviction of one is not a bar to prosecution for the other.
'Here we deem the one act of escape as constituting a criminal offense under the statute cited, as well as an offense against the rules of the prison evoking the forfeiture provisions of the good time statute above cited. Thus, in our view, the lack of identity of the offenses is destructive of the defendant's position.
'But we also conclude that under the circumstances of this case there was no successive subjection to jeopardy.
'The word 'jeopardy' as used in the Constitution has always been used in a manner consonant with the following definition:
"The danger of conviction and punishment which the defendant in a criminal action incurs when a valid indictment has been found, and a petit jury has been impaneled and sworn to try the case and give a verdict in a court of competent jurisdiction.' Black's Law Dictionary (4th ed. 1951), p. 969.
'The Michigan Supreme Court has consistently held that 'jeopardy' requires criminal prosecution in a court of justice. See People v. Powers (1935), 272 Mich. 303, 307, 261 N.W. 543, and People v. Tillard (1947), 318 Mich. 619, 623, 29 N.W.2d 111.
'Here the procedure whereby the defendant's good time was forfeited was conducted as the statutes requires, in an administrative proceeding and not in a criminal proceeding in a court of justice.'
We are in accord with the above statements; and, therefore, hold that the prosecution of defendant for the crime of escape did not constitute double jeopardy.
The defendant took the stand in his own behalf; and when asked by his counsel if there was anything he wished to say, the defendant started asking questions as to why he was still in prison on his original sentence. The judge interrupted and informed the defendant that this information was irrelevant. The area was not thereafter pursued by either defendant or his counsel.
On appeal, the defendant claims that his being detained after April 1, 1970, was illegal and, therefore, he was justified in escaping. The basis of defendant's argument is that under Browning v. Michigan Department of Corrections, 385 Mich. 179, 188 N.W.2d 552 (1971), which established the...
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People v. Neal
...may be unlawful. See Hamaker, supra, Cross v. Dep't of Corrections, 103 Mich.App. 409, 303 N.W.2d 218 (1981), and People v. Alexander, 39 Mich.App. 607, 197 N.W.2d 831 (1972). The prosecution need not, however, negate every theory of innocence to establish a prima facie case. See People v. ......
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People v. Hurst
...It is true that a defendant cannot be convicted of the crime of prison escape if his incarceration is unlawful. People v. Alexander, 39 Mich.App. 607, 197 N.W.2d 831 (1972). But this does not answer the question of whether the prosecution must prove lawfulness as part of its case or whether......
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People v. McKerchie
...Court has stated that a person may not be convicted under MCL 750.193 for escaping unlawful imprisonment. See People v. Alexander, 39 Mich.App. 607, 610–611, 197 N.W.2d 831 (1972). However, the Court in Alexander relied on a decision by our Supreme Court in which it interpreted a different ......
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People v. Bachman, Docket No. 17045
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