People v. Kretchmer

• Decision Date: 26 December 1978
• Docket Number: No. 15,Docket No. 57997,15
• Citation: 272 N.W.2d 558,404 Mich. 59
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Clarence L. KRETCHMER, Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 558

272 N.W.2d 558

404 Mich. 59

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Clarence L. KRETCHMER, Defendant-Appellee.

Docket No. 57997.

Calendar No. 15.

Supreme Court of Michigan.

Argued Jan. 5, 1978.

Decided Dec. 26, 1978.

John A. Smietanka, Pros. Atty. by John Jeffrey Long, Chief Asst. Pros. Atty., St. Joseph, for plaintiff-appellant.

James K. Jesse, Buchanan, for defendant-appellee.

PER CURIAM.

The issue is whether defendant's acquittal of a charge of public intoxication bars, under the "same transaction" rule we adopted in People v. White, 390 Mich. 245, 258, 212 N.W.2d 222 (1973), a charge of resisting arrest arising out of the events which led to the charge of public intoxication.

We hold that prosecution is not barred because the two offenses involve laws intended to prevent substantially different harm or evil.

I

The police arrived at a tavern on March 31, 1974 after receiving a report of a disturbance from the owner. They saw a number of persons causing trouble and asked them to leave. As these persons were complying with the officers' request, they received information that the defendant and a companion were causing a disturbance. The officers asked the companion to leave. The defendant intervened.

An officer testified at the preliminary examination that after an exchange of words, defendant was arrested, that he resisted the arrest and was subdued. Defendant was charged with an ordinance violation (public intoxication), and with a circuit-court misdemeanor (resisting a police officer in the discharge of his duty). ¹

On August 13, 1974 the defendant was acquitted in the district court of the public intoxication charge. The circuit court concluded that the trial in district court barred prosecution for resisting arrest. The Court of Appeals affirmed. 66 Mich.App. 548, 239 N.W.2d 658 (1976).

II

The offenses in White all involved an element of criminal intent. In Crampton v. 54-A District Judge, 397 Mich. 489, 499, 245 N.W.2d 28, 33 (1976), we held that the criterion applied in White ² was inappropriate to a determination of whether a series of offenses arose out of the same transaction where at least one of those offenses did not involve an element of criminal intent. We developed the following criterion for such a situation:

"Where one or more of the offenses does not involve criminal intent, the criterion is whether the offenses are part of the same criminal episode, and whether the offenses involve laws intended to prevent the same or similar harm or evil, not a substantially different, or a very different kind of, harm or evil."

Public intoxication does not involve an element of criminal intent.

The people argue that the offenses were not "part of the same criminal episode" because the defendant's public intoxication existed before the police arrived at the scene. Whether or not public intoxication and resisting arrest can be part of the same criminal episode, we are persuaded that the two laws are intended to prevent substantially different harm or evil.

The purpose of the public intoxication ordinance, as is the purpose of the law proscribing the driving under the influence of liquor offense involved in Crampton, was to protect the public, as it went about its business, from persons not in control of themselves. ³ The purpose of the resisting arrest statute is to protect persons (the officers) from physical violence and harm.

The enactment of 1977 P.A. 110; M.C.L. § 325.763; M.S.A. § 18.1031(63) barring, after January 15, 1978, local ordinances imposing "a civil or criminal penalty for public intoxication, being a common drunkard, or being incapacitated" except as provided by M.C.L. § 750.167; M.S.A. § 28.364, as amended by 1977 P.A. 109, defining as "a disorderly person," among others, "(a) person who is intoxicated in a public place and who is either endangering directly the safety of another person or of property or is acting in a manner that causes a public disturbance," reflects the legislative judgment that public intoxication is so substantially different from conduct generally covered by the criminal law that it should not be a criminal offense at all.

We reverse the judgment of the Court of Appeals and remand the matter to the circuit court for further proceedings consistent with this opinion.

KAVANAGH, C. J., and WILLIAMS, LEVIN and RYAN, JJ., concur.

MOODY, Justice (concurring).

The question of law raised in this case is whether the "same transaction" rule, adopted in People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973), bars defendant's prosecution in circuit court for resisting arrest after his acquittal in district court of public intoxication arising from the same incident. The Court of Appeals affirmed the dismissal ordered in circuit court. 66 Mich.App. 548, 239 N.W.2d 658 (1976).

The per curiam opinion distinguishes White on the ground that "the two offenses involve laws intended to prevent substantially different harm or evil." That opinion, therefore, reverses the Court of Appeals and remands the matter to circuit court for further proceedings.

I concur without reservation in this result and order to remand. I also agree that White may be distinguished because the incident here entailed both criminal intent and non-criminal intent offenses which were meant to address different evils. Crampton v. 54-A District Judge, 397 Mich. 489, 501-502, 245 N.W.2d 28 (1976). However, I would find the instant case a clear exception to the White rule on another basis argued by the parties and presented as a key issue before the Court.

I

Jurisdiction over ordinance violations is vested in the district courts. M.C.L. § 600.8311(b); M.S.A. § 27A.8311(b). Jurisdiction over circuit-court misdemeanors is vested in the circuit courts. M.C.L. § 600.601; M.S.A. § 27A.601. Consequently, application of the same-transaction test to this case presents an apparent conflict between defendant's right against double jeopardy and the Legislature's allocation of jurisdiction to the courts. However, on closer examination, existing authority indicates that trying defendant in circuit court on the charge of resisting arrest does not constitute double jeopardy in relation to the prior district court acquittal of public intoxication.

The same-transaction test was adopted in White on the basis of Justice Brennan's concurring opinion in Ashe v. Swenson, 397 U.S. 436, 448, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). He found that the same-transaction test was the best method to protect defendants' Fifth Amendment guarantee not to be twice placed in jeopardy for the same offense "In my view, the Double Jeopardy Clause requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction. This 'same transaction' test of 'same offence' not only enforces the ancient prohibition against vexatious multiple prosecutions embodied in the Double Jeopardy Clause, but responds as well to the increasingly widespread recognition that the consolidation in one lawsuit of all issues arising out of a single transaction or occurrence best promotes justice, economy, and convenience." 397 U.S. 453-454, 90 S.Ct. 1199.

However, both White and Justice Brennan's opinion in Ashe recognized that the test was subject to exceptions. 390 Mich. 258, fn. 6, 212 N.W.2d 222. In fact, Justice Brennan addressed the very question before us now. He found that among the situations necessitating an exception to the "same transaction" test was one where "no single court had jurisdiction of all the alleged crimes". 397 U.S. 453, fn. 7, 90 S.Ct. 1199.

Accordingly, it was recognized that prohibiting prosecution of unrelated charges arising out of the same transaction simply because all of the offenses charged could not be tried in one court would create an anomalous situation. The purpose of avoiding vexatious multiple prosecutions is not compromised by allowing separate trials when the charges against defendant are not capable of being brought in the same court because they involve distinct subject-matter jurisdiction. Clearly, the circumstances in this case represent this limited exception to the general rule. ¹

In Crampton, supra, this Court explicitly reinforced this position by quoting from the American Law Institute, Model Penal Code (Proposed Official Draft, 1962), § 1.07(2):

"A defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial And are within the jurisdiction of a single court." 397 Mich. 500, 245 N.W.2d 32. (Emphasis added.)

II

Our Court for many years has recognized the principle that a conviction of a misdemeanor in an inferior court does not constitute former jeopardy so as to bar subsequent prosecution for a felony arising out of the same transaction. People v. Townsend, 214 Mich. 267, 183 N.W. 177 (1921). In Townsend, where defendant was convicted in municipal court of driving while intoxicated and later tried for manslaughter arising from the same...