People v. Bishop, Docket No. 8752

• Decision Date: 27 January 1971
• Docket Number: Docket No. 8752,No. 3,3
• Citation: 186 N.W.2d 374,30 Mich.App. 204
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Maurice BISHOP, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 374

186 N.W.2d 374

30 Mich.App. 204

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Maurice BISHOP, Defendant-Appellant.

Docket No. 8752.

Court of Appeals of Michigan, Division No. 3.

Jan. 27, 1971.

Rehearing Denied March 10, 1971.

Released for Publication April 30, 1971.

H. Rhett Pinsky, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Ronald J. Taylor, Pros. Atty., for plaintiff-appellee.

Before FITZGERALD, P.J., and QUINN and McINTYRE, ^* JJ.

PER CURIAM.

Defendant Maurice Bishop was arrested in the course of a public disturbance in the city of Benton Harbor in July 1968. He was tried by a jury and on October 28, 1969, was found guilty of resisting arrest in violation of M.C.L.A. § 750.479 (Stat.Ann.1954 Rev. § 28.747). On December 1, 1969, he was sentenced to 30 days in the county jail plus a $100 fine and costs of $400.

The facts which led to the arrest and subsequent conviction are as follows:

On July 21, 1968, following an incident at a local tavern, a crowd began to gather in the streets of Benton Harbor and it was clear that a disturbance was in the making. Defendant, the leader of a local chapter of the Southern Christian Leadership Conference, went to the scene of the disturbance and was given permission by the police to use a loudspeaker in an effort to disperse the seething crowd which had formed in the streets. Defendant's attempt was unsuccessful and the situation worsened. Subsequently defendant approached Chief McClaran of the Benton Harbor Police, grabbing his arm in an attempt to get his attention. McClaran, occupied with the task of supervising his men, pulled away from defendant without further contact. Officer Robert Irvin, who had witnessed from some distance the defendant taking hold of McClaran's arm, immediately proceeded to place defendant under arrest as a disorderly person. Officer Irvin had encountered defendant on two other occasions that day. Earlier he had ordered defendant out of the street and back onto the sidewalk and also refused defendant a second use of the police loudspeaker. The arresting officer ordered defendant to proceed towards the police van at which time a struggle ensued and as a result defendant was bodily placed in the van and later charged with resisting arrest.

The question of primary concern is whether defendant was legally placed under arrest by the officer. Defendant contends that there was not a valid arrest which it could be said he resisted and that his conduct constituted self defense and not resisting arrest. The people, on the other hand, argue that all the elements of the charge were proven at the trial, that defendant was placed under arrest by a person he knew or should have known to be a police officer and hence he was in fact lawfully arrested.

A peace officer is empowered by M.C.L.A. § 764.15 (Stat.Ann.1954 Rev. § 28.874) to arrest, without a warrant, any person who commits a misdemeanor in his presence. People v. Carey (1968), 11 Mich.App. 213, 160 N.W.2d 799. Hence, we must consider whether the arresting officer witnessed such acts as would constitute 'disorderly conduct,' a definition of which is set forth in M.C.L.A. § 750.167 (Stat.Ann.1962 Rev. § 28.364) which states in part:

'Any person who shall be found jostling or roughly crowding people unnecessarily in a public place, shall be...