People v. Carr
| Decision Date | 09 May 1963 |
| Docket Number | No. 62,62 |
| Citation | 121 N.W.2d 449,370 Mich. 251 |
| Parties | The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Alan B. CARR, Defendant and Appellant. |
| Court | Michigan Supreme Court |
Stanley Berriman, Howell, for defendant and appellant.
Joseph S. Linden, Owosso, of counsel, for defendant and appellant.
Allen E. Keyes, Pros. Atty., Sanilac County, Sandusky, for plaintiff and appellee.
Before the Entire Bench.
Defendant was convicted of breaking and entering a State liquor store with intent to commit larceny therein. He assigns error on 6 grounds:
(1) Denial of a motion to quash and to suppress evidence unlawfully seized;
(2) Denial of a motion for a directed verdict of not guilty;
(3) and (4) Errors in the admission of the testimony of an alleged insane witness, and failure of the trial court to instruct adequately on the weight to be given thereto;
(5) Errors in the admission of alleged prejudicial testimony;
(6) A general allegation of error in refusing to grant a new trial by reason of the holding of the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
The following factual background is necessary to an understanding of the legal issues presented. Defendant was arrested for operating his automobile with a defective tail light in the city of Howell, Livingston county. The car was found to contain a quantity of stolen property. The circumstances of that search and seizure of the car are not before us for review. Defendant had pleaded guilty to the possession of stolen property and was serving a 30- day sentence in the Livingston county jail when the question presented in this case arose. During the time of his confinement defendant's car, under circumstances unclear in the record, was stored in a jail parking lot. Presumably, at least, the sheriff was its custodian.
While in jail, defendant was interviewed by a State police officer regarding possible complicity in the larceny of liquor from a State store in Sanilac county. Defendant was completely noncommittal and incommunicative. The State trooper without process of any kind or the permission of defendant searched his car and removed therefrom, among other things, a monkey wrench. He also took the car to Sanilac, made tests, compared tire casts previously made, and took for analysis paint scrapings from the car and the jaws of the monkey wrench. Later these scrapings were compared with samples from the window bars of the looted store. The investigating officer later signed a complaint. Defendant was served with the warrant while still in jail. On examination, he was bound over to circuit court and after trial and conviction by a jury was sentenced to not less than 10 nor more than 15 years.
The first question presented is the sufficiency of the evidence adduced at the examination to warrant binding the defendant over for trial in the circuit court. The test, upon preliminary examination, is properly stated in People v. Gerndt, 244 Mich. 622, 222 N.W. 185:
'[T]he only requirement as a condition to holding one to trial for the commission of an alleged crime is that the testimony taken before the examining magistrate shall be such as justifies him in concluding that the crime charged has been committed and that there is probable cause to believe the accused is the guilty party.'
A careful reading of the transcript of the preliminary examination establishes that without regard to the paint samples alleged to have been found in the jaws of the monkey wrench and the other evidence acquired by the search and seizure of the defendant's car, there was sufficient testimony from the identifying witnesses to meet the test of probable cause. The commission of the offense, including the inferential testimony of the time of the breaking was adequately established. Defendant was properly bound over for trial in the circuit court.
Upon arraignment in circuit court, defense counsel renewed the objections made at the examination and made continuing objection to the evidence procured by the search of his car while he was serving his misdemeanor sentence in the county jail.
It could not be seriously urged that the search and seizure made by the officers without defendant's consent or without...
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