People v. Martin

• Decision Date: 12 March 1975
• Docket Number: No. 1,Docket No. 19563,1
• Citation: 59 Mich.App. 471,229 N.W.2d 809
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Olivet MARTIN, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 809

229 N.W.2d 809

59 Mich.App. 471

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Olivet MARTIN, Defendant-Appellee.

Docket No. 19563.

Court of Appeals of Michigan, Division No. 1.

March 12, 1975.

Released for Publication June 11, 1975.

Leave to Appeal Denied July 23, 1975.

James R. Neuhard, State App. Defender, Detroit, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, App. Div., Francis Zebot, Asst. State Appellate Defender, for defendant-appellee.

Before McGREGOR, P.J., and J. H. GILLIS and QUINN, JJ.

J. H. GILLIS, Judge.

The defendant Olivet Martin was arrested in the City of Detroit and charged with the crime of manslaughter. M.C.L.A. § 750.321; M.S.A. § 28.553. She was bound over on that charge on November 20, 1973 following preliminary examination. Defendant filed a motion to quash the information and discharge the defendant on the ground that the evidence at the preliminary examination indicated that the people had failed to show that Ms. Martin had not acted in self-defense. Recorder's Court Judge George W. Crockett, Jr., after hearing arguments, granted the motion and discharged defendant on February 28, 1974. The people prepared and filed in this Court a timely claim of appeal, on the basis of People v. Blachura, 390 Mich. 326, 212 N.W.2d 182 (1973). That claim of appeal was accepted and filed, improvidently we believe.

On April 19, 1974, this Court on its own motion requested the parties to brief the question of whether or not the people are entitled to an appeal as of right from such an order. The Prosecuting Attorneys Appellate Service was also invited to file a brief amicus curiae on the question. Both parties and the PAAS have filed such briefs, we have had the benefit of vigorous oral argument, and we conclude that the people do not have an appeal as of right from such an order.

A brief history of this question is necessary in order to explain our reasoning. At the common law in Michigan, the people were not permitted to appeal any orders or judgments in criminal cases. People v. Ballots, 252 Mich. 282, 283, 233 N.W. 229 (1930). By 1917 P.A. 159, § 1(a), the people were granted the right to seek a writ of error in the Supreme Court from certain orders 'based upon the invalidity or construction of (a) statute * * *'.

'This language was incorporated in the Code of Criminal Procedure (1927 P.A. 175, c. X, 12; C.L.1929, 17366) and has been carried forward to the present without substantive change. In 1941 this provision of the Code of Criminal Procedure was amended by adding the following language, which, together with the former language, is now M.C.L.A. § 770.12; M.S.A. § 28.1109:

"(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." People v. Blachura, Supra, 390 Mich. 341--342, 212 N.W.2d 182, 188. Opinion of Justice Levin.

Section 3 of ch. X of the Code of Criminal Procedure, M.C.L.A. § 770.3; M.S.A. § 28.1100, provides:

'Writs of error in criminal cases shall issue only in the discretion of the supreme court or any justice thereof, on proper application therefor.'

We have held that '(a)lthough Const.1963, art. 1, § 20, removes the accused from the restrictions of C.L.1948, § 770.3 (Stat.Ann.1954 Rev. § 28.1100) and grants a right of appeal, appeals by the (people) still require leave and are restricted by the provisions of C.L.1948, § 770.12 (Stat.Ann.1954 Rev. § 28.1109)'. City of Portage v. Timmerman, 11 Mich.App. 498, 499, 161 N.W.2d 442, 443 (1968). See also, People v. Smith, 16 Mich.App. 606, 168 N.W.2d 449 (1969); People v. Abess, 17 Mich.App. 617, 170 N.W.2d 264 (1969); People v. Price, 23 Mich.App. 663, 179 N.W.2d 177 (1970); Wayne County Prosecutor v. Recorder's Court Judge, 27 Mich.App. 251, 183 N.W.2d 333 (1970); Wayne County Prosecutor v. Wayne Circuit Judge, 27 Mich.App. 257, 183 N.W.2d 336 (1970); People v. Gebarowski, 47 Mich.App. 379, 209 N.W.2d 543 (1973), and People v. Brundage, 381 Mich. 399, 402--403, 162 N.W.2d 659, 29 A.L.R.3d 881 (1968). We adhere to that statement of law.

The people and the PAAS rely heavily upon People v. Blachura, Supra. We feel that Blachura, properly analyzed, does not control the question presented here.

Leon Blachura was convicted in Oakland County Circuit Court of five counts of perjury. The court, on motion of defendant, set aside all five verdicts, granted new trials as to two counts, and dismissed three counts with prejudice. The people sought leave to appeal, and this Court granted leave to appeal on April 25, 1972. Defendant sought leave to appeal in the Supreme Court from the order granting leave to appeal, presenting only the 'narrow issue of whether or not the Court of Appeals has jurisdiction' in this matter'. People v. Blachura, Supra, 390 Mich. 331--332, 212 N.W.2d 182, 183. The Supreme Court granted leave to settle that question. 388 Mich. 751. All seven Justices agreed that the narrow question presented must be answered in the affirmative, and the order of this Court granting leave to appeal was affirmed. 390 Mich. 326, 337--338.

The two opinions in Blachura, while agreeing upon the answer to the narrow question presented, disagree upon other questions, which we take to be obiter dicta. See Hett v. Duffy, 346 Mich. 456, 461--462, 78 N.W.2d 284 (1956), and People v. Garland, 393 Mich. 215, 224 N.W.2d 45 (1974), concurring opinion of Justice Levin.

Jurisdiction of the Court of Appeals

The jurisdiction of the Court of Appeals is provided by statute. Const.1963, art. 6, § 10; People v. Blachura, Supra; People v. Milton, 393 Mich. 234, 224 N.W.2d 266 (1974), 1964 P.A. 281; M.C.L.A. § 600.308; M.S.A. § 27A.308. R.J.A. § 308 is a general statute conferring on the Court of Appeals jurisdiction in both civil and criminal cases. Const.1963, art. 1, § 20; People v. Milton, Supra. R.J.A. § 308 by its subsection (2) indicates that there are other judgments or interlocutory orders, over which the Court of Appeals may be granted appellate jurisdiction by court rule.

R.J.A. § 309 provides:

'All appeals to the court of appeals from final judgments or decisions permitted by this act shall be a matter of right. All other appeals from other judgments or orders to the court of appeals permitted by statute or supreme court rule shall be by right or by leave as provided by the statute or the rules promulgated by the supreme court.' (Emphasis supplied.)

If sections 308 and 309 are read together, it quite clearly appears that the '(a)ll final judgments' of section 308 is a general residuary source of jurisdiction. Section 308 is not the only source of Court of Appeals jurisdiction.

Const.1963, art. 3, § 7, provides:

'The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.'

GCR 1963, 801.1, provides 'In all cases in which review by the Supreme Court or by the Court of Appeals is authorized by law, review shall be had by appeal to the Court of Appeals, subject to further appeal to the Supreme Court as provided by these rules. This rule refers only to the court and method of review and does not restrict, enlarge or change the right or scope of review provided by law, except as explicitly set out in these rules.'

GCR 1963, 16, provides:

'Rules of practice set forth in any statute, not in conflict with any of these rules, shall be deemed to be in effect until superseded by rules adopted by the Supreme Court.'

Court of Appeals jurisdiction is provided by many diverse statutes. 1966 P.A. 261, § 6; M.C.L.A. § 46.406; M.S.A. § 5.359(6), provides for review of county apportionment plans in the Court of Appeals on petition of any registered voter. Apportionment of Huron County Board of Supervisors, 12 Mich.App. 326, 163 N.W.2d 30 (1968); Apportionment of Sanilac County Board of Supervisors, 12 Mich.App. 330, 162 N.W.2d 913 (1968); In re Apportionment of Allegan County Board of Supervisors, 13 Mich.App. 692, 164 N.W.2d 665 (1968).

1965 P.A. 379, as amended by 1965 P.A. 397, provides for review in the Court of Appeals from orders of the Employment Relations Commission concerning public employees. Labor Mediation Board v. Tuscola County Sheriff, 25 Mich.App. 159, 181 N.W.2d 44 (1970); Michigan State University Board of Trustees v. State Labor Mediation Board, 381 Mich. 44, 158 N.W.2d 873 (1968); Michigan Employment Relations Commission v. Reeths-Puffer School District, 391 Mich. 253, 215 N.W.2d 672 (1974).

1969 P.A. 317, § 861; M.C.L.A. § 418.861; M.S.A. § 17.237(861) provides for appeal of Workmen's Compensation Appeal Board decisions directly to the Court of Appeals. Evans v. United States Rubber Co., 379 Mich. 457, 152 N.W.2d 641 (1967). Const.1963, art. 6, § 28, provides for 'direct review' from such decisions but leave to appeal may be required by court rule. Evans v. United States Rubber Co., Supra.

1939 P.A. 176, as amended by 1965 P.A. 282, the mediation of disputes act, requires the Court of Appeals to entertain petitions for review of Employment Relations Commission determinations. Labor Mediation Board v. National Music Camp, 383 Mich. 518, 176 N.W.2d 588 (1970), M.C.L.A. § 423.23; M.S.A. § 17.454(25).

1972 P.A. 344, the Agricultural Marketing and Bargaining Act, in section 23, M.C.L.A. § 290.723; M.S.A. § 12.94(123), provides for review in the Court of Appeals of all committee awards.

1973 P.A. 186, The Tax Tribunal Act, section 53, M.C.L.A. § 205.753; M.S.A. § 7.650(53), provides for an appeal as of right to the Court of Appeals from all final orders and decisions of the tribunal, and appeals by leave for all other orders.

Prior to the passage of 1973 P.A. 186,...