People v. Mayberry

• Decision Date: 29 March 1974
• Docket Number: Docket No. 17578,No. 2,2
• Citation: 52 Mich.App. 450,217 N.W.2d 420
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marvin MAYBERRY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 420

217 N.W.2d 420

52 Mich.App. 450

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marvin MAYBERRY, Defendant-Appellant.

Docket No. 17578.

Court of Appeals of Michigan, Division No. 2.

March 29, 1974.

Released for Publication May 8, 1974.

George D. Dovas, Dovas & Weberman, Southfield, for defendant-appellant.

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

Before J. H. GILLIS, P.J., and HOLBROOK and DENEWETH,* JJ.

J. H. GILLIS, Presiding Judge.

A jury convicted defendant of armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797. A 15- to 30-year sentence was imposed. Defendant appeals as of right.

The sole meritorious issue is whether a conclusory complaint which fails to identify sources of information in violation of state and Federal constitutional rights, ¹ divests the court of jurisdiction to try the offense. People v. Burrill, 391 Mich. 124, 214 N.W.2d 823 (1974), citing Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), concludes that an invalid arrest warrant does not oust jurisdiction. To the extent People v. Hill, 44 Mich.App. 308, 205 N.W.2d 267 (1973), implies jurisdiction cannot attach. Hill is overruled.

Further, Hill, supra, neglected a step in analysis which Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), and Burrill, supra, peoperly recognize. ² Because an arrest warrant is not required, when an invalid arrest warrant is obtained, the question becomes whether the officer had probable cause to arrest. ³ Since the police had probable cause to arrest in the instant case, defendant's allegation of error is without merit.

Affirmed.

HOLBROOK, J., concurs in the result only.

* GEORGE R. DENEWETH, Circuit Judge for Macomb County, sitting on the Court of Appeals by assignment pursuant to Const.1963, art. 6, § 23 as amended in 1968.

1 U.S.Const., Am. 4, 14; Const.1963, art. 1, § 11.

2 The test is not of recent origin. In addition to United States v. Miles, 468 F.2d 482 (C.A.3, 1972), cited in People v. Burrill, 391 Mich. 124, 214 N.W.2d 823 (1974), fn. 19, See: Petition of Forcella, 371 F.2d 37 (C.A.3, 1967); Page v. United States, 437 F.2d 440 (C.A.9, 1970); United States v. Evans, 447 F.2d 129 (C.A.8, 1971); United States ex rel. Moore v. Russell, 330 F.Supp. 1074 (E.D.Pa.1971); United States ex rel. Gockley v. Myers, 450 F.2d 232 (C.A.3, 1971). See, also, People v. Hoffmeister, 52 Mich.App. 219, 217 N.W.2d 58 (1974), and People v. Collins, 52 Mich.App. 332, 217 N.W.2d 119 (1974).

3 People v. Hill, 44 Mich.App. 308, 205 N.W.2d 267 (1973), did not acknowledge this test, even though both Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), and State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965), on which Hill relied, carefully indicated that validity of the arrest without a warrant was not an issue before the Court. As I have said before, with Justice Jackson and Lord Westbury, 'I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.'