People v. Davenport, Docket No. 14213

• Decision Date: 01 March 1974
• Docket Number: Docket No. 14213,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Theodore DAVENPORT, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 702

215 N.W.2d 702

51 Mich.App. 484

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Theodore DAVENPORT, Defendant-Appellant.

Docket No. 14213.

Court of Appeals of Michigan, Division No. 2.

March 1, 1974.

Released for Publication March 19, 1974.

H. James Starr, Starr & Needham, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Raymond L. Scodeller, Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and R. B. BURNS and DANHOF, JJ.

R. B. BURNS, Judge.

When a Lansing police officer attempted to arrest defendant for the ordinance violation of being a disorderly person by uttering obscene words in public, Lansing ordinances, ch. 22, § 22--13(7), defendant resisted. A district court jury acquitted defendant of the charge of being a disorderly person. Some months later a circuit court jury convicted defendant of the felony of resisting arrest, M.C.L.A. § 750.479; M.S.A. § 28.747. Defendant timely appealed that conviction, and we affirmed over the dissent of Judge Bronson. 46 Mich.App. 579, 208 N.W.2d 562 (1973). Now, the case has been remanded to us by the Supreme Court, 390 Mich. 809, 212 N.W.2d 210 (1973), for reconsideration in light of People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973). We reverse our original decision in this case, and order defendant discharged.

In People v. White, 390 Mich. at 257--258 212 N.W.2d at 227, our Supreme Court adopted the 'same transaction' test as the 'only meaningful approach to the constitutional protection against being placed twice in jeopardy'. The Court also observed that '(a) procedural rule allocating jurisdiction to try offenses between the several courts of the state must be subordinated to a defendant's constitutional right not to be put twice in jeopardy for the same offense'. People v. White, 390 Mich. at 260, fn. 10, 212 N.W.2d 229, fn. 10.

As in People v. White, Supra, the two crimes with which defendant was charged were committed, if committed at all, in a continuous time sequence and in pursuit of a single intent or goal. When a police officer stopped defendant for a traffic infraction, defendant allegedly refused to cooperate with him and directed obscene epithets at him, and then, when the officer attempted to arrest defendant because of those epithets, defendant refused to submit peacefully. The continuousness of the time sequence is obvious. The unity of intent is also readily apparent--a refusal to submit to a police officer's authoity.

Unlike White, this case does involve a conflict between the Legislature's allocation of jurisdiction to the courts of this state and defendant's right against double jeopardy when interpreted in terms of the same transaction test. The charge of being a disorderly person, because of a municipal ordinance violation, could be tried only in a district court, M.C.L.A. § 600.8311(b); M.S.A. § 27A.8311(b), while the charge of resisting arrest, because it is a felony, could be tried only in a circuit court, M.C.L.A. § 600.601; M.S.A. § 27A.601. However, that allocation of jurisdiction cannot defeat defendant's right against double jeopardy. Admittedly, the Supreme Court's holding to that effect is dictum, and...