People v. Brundage, 11
| Decision Date | 02 December 1968 |
| Docket Number | No. 11,11 |
| Citation | 381 Mich. 399,162 N.W.2d 659 |
| Parties | , 29 A.L.R.3d 881 The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Clayton BRUNDAGE, Defendant-Appellee. |
| Court | Michigan Supreme Court |
Paul E. Braunlich, Pros. Atty., Monroe, for plaintiff and appellant.
Harry A. Lockwood, Monroe, for defendant and appellee.
Koltys, Miller & Penirian, Raymond A. Koltys, Detroit, for amicus curiae Retail Gasoline Dealers Assn. of Michigan, Inc.; Bethel B. kelley, Detroit, of counsel.
Donald L. Reisig, President, Pros. Atty., Ingham County, James R. Ramsey, Asst. Pros. Atty., Ingham County, Lansing, for Prosecuting Attorneys Assn. of Michigan, amicus curiae.
Before the Entire Bench.
O'HARA, Justice (KELLY and BLACK, JJ., not participating):
This is an appeal on leave granted to the people of the State of Michigan from an order of the Court of Appeals which reversed appellee's conviction in the circuit court. He had been charged with the operation of a lottery.
The first question we face is what is the right of appeal by the State in a criminal case from an adverse decision by the Court of Appeals? 1
There has been no legislative action dealing with the question since the creation of that Court. There is a statute defining the right of appeal by the people. It has been in force for many years and has been the subject of judicial construction.
The statute reads: 2
'Sec. 12. A writ of error may be taken by and on behalf of the people of the state of Michigan from any court of record in said state direct to the supreme court thereof, in all criminal cases, in the following instances, to wit:
'(a) From a decision or judgment quashing or setting aside any indictment or information, or any court thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which such indictment or information is founded;
'(b) From a decision arresting a judgment of conviction or directing a judgment of acquittal for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which such indictment or information is founded;
'(c) From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy, or from any other order of the court relative to admission of evidence or proceedings had or made at any time before the defendant is put in jeopardy.'
We feel obligated to point out that as an expression of legislative policy we accord the statute great weight. However, to the extent that it purports to limit our appellate jurisdiction, it is constitutionally infirm. Our appellate jurisdiction is constitutional. It can neither be enlarged nor restricted by legislative action. The constitution provides: 3
'The Supreme Court shall have * * * power to issue * * * prerogative and remedial writs; And appellate jurisdiction as provided by rules of the supreme court.' (Emphasis supplied.)
We construed this article in Board of Education of City of Grand Rapids v. State Tax Commission (1939), 291 Mich. 50, 288 N.W. 331. While equally divided in that case as to the powers of the defendant-commission, the Court was unanimous in the holding (p. 54, 288 N.W. p. 332):
'The power of this court to issue original writs of certiorari is vested in the Constitution and cannot be divested by legislative action.'
In the foregoing quotation, the Court was speaking for four Justices through Mr. Justice Wiest, but for the remainder of the Court, Justice North wrote (p. 62, 288 N.W. p. 335):
'For the reason pointed out by Mr. Justice WIEST, the provision in section 17 which purports to bar all judicial review of the proceedings before the State tax commission is void.'
So here we are not bound in our review of the disposition of the case by the Court of Appeals, even though the appeal is by the people from a decision adverse to the State.
However, the limitation upon appeals by the State has been recognized by this Court for many years. Obviously, the case precedent does not involve appeal from the Court of Appeals to this Court. Rather the cases arose on appeals from the circuit courts to this Court, after the circuit court had in legal effect acted as an intermediate court of appeal.
In People v. Woodward (1921), 215 Mich. 267, p. 269, 183 N.W. 901:
'It is obvious from the provisions of the act that the Legislature contemplated the issuance of a writ of error in behalf of the people only when the indictment was attacked upon the ground of the invalidity or construction of the statute upon which the indictment was based. In the present case the indictment was not attacked, and the validity of the statute was in no way questioned. The ground upon which the judgment of conviction was attacked was the fact that the conviction was brought about by the evidence illegally obtained. It was shown without question that the officers disobeyed the plain provisions of the statute in obtaining the evidence. Without this illegal evidence there was not sufficient proof to sustain the indictment. By reason of this we think defendant's point is well taken; that we have no jurisdiction to consider the assignments.
'The writ of error will be dismissed.'
People v. Ballard (1922), 220 Mich. 500, 190 N.W. 242, followed Woodward, supra:
'Defendant was informed against for unlawfully having in his possession certain keys, locks, wire cutters, nippers and other implements designed for forcing and breaking open dwelling houses. After pleading not guilty, the trial court, on petition therefor, made an order for the return to him of the articles listed in the information, for the reason that possession of them had been obtained by a search of his residence without a search warrant. The prosecuting attorney seeks to review such order by writ of error.
'The motion here made was clearly not a special plea in bar. The order entered in no way prevented the prosecuting attorney from proceeding with his proofs. While it deprived him of the right to use certain evidence because unlawfully obtained, it clearly presents no question which we can review on writ of error under this statute.
'The writ is dismissed.'
The holdings were also followed and approved in People v. Rau (1922), 220 Mich. 502, at p. 503, 190 N.W. 243:
'Neither the information, statute upon which it is based, or regularity of the essential steps directly leading up to the trial were attacked in this motion. The order granting it, here sought to be reviewed, only indirectly involved the availability of certain testimony the prosecution desired to introduce upon the trial. Its only bearing upon the progress and trial of the case was in effect an adverse early ruling upon the admission of testimony the prosecution relied on and proposed to introduce. We are of opinion, as said in People v. Ballard, 220 Mich. 500, 190 N.W. 242, that the motion upon which the order is based 'was clearly not a special plea in bar' under subdivision (c), § 1, of the statute upon which the prosecution relies.
'Writ denied.'
We find no conflict between our holding here and the cited cases. It is to be noted that the Court carefully specified in each case that the people relied on the statute. The appeal herein was addressed to our general constitutional authority in the nature of an application for leave to appeal.
In view of the settled precedent of long standing, and the legislative expression of policy in the statute, we are not disposed to invoke our plenary constitutional appellate powers in order to allow this appeal to go to final decision in this Court. In this case the appellee raised, briefed and argued the question of our jurisdiction to entertain the appeal. We answer. We have jurisdiction to review any decision of the Court of Appeals. We do not always exercise this jurisdiction in a criminal case where the decision of the...
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