People v. Overton, 123.

• Decision Date: 01 April 1940
• Docket Number: No. 123.,123.
• Citation: 291 N.W. 216,293 Mich. 44
• Parties: PEOPLE v. OVERTON.
• Court: Michigan Supreme Court

293 Mich. 44

291 N.W. 216

PEOPLE

v.OVERTON.

No. 123.

Supreme Court of Michigan.

April 1, 1940.

John Overton was convicted of possessing memoranda of bets on horse races, and he appeals.

Affirmed.

SHARPE and WIEST, JJ., dissenting.

Appeal from Circuit Court, Kalamazoo County; George V. Weimer, judge.

Argued before the Entire Bench.

Thomas Read, Atty. Gen., Edmund E. Shepherd, Asst. Atty. Gen., and Paul M. Tedrow, Pros. Atty., of Kalamazoo, for plaintiff and appellee.

R. M. Van Dyne, of Flint, and Charles Pratt, of Kalamazoo, for defendant and appellant.

BUSHNELL, Chief Justice.

Defendant Overton waived a jury trial and was found to be guilty. He was granted leave to appeal from the sentence imposed by the Circuit Court. Overton was charged with having in his possession memoranda of bets in violation of Section 306 of Act No. 328, Public Acts 1931 (Stat.Ann. § 28.538), which reads:

‘All policy or pool tickets, slips or checks, memoranda of any combination or other bet, manifold or other policy or pool books or sheets, are hereby declared a commonnuisance and the possession thereof a misdemeanor, punishable by imprisonment in the county jail not more than one year or by a fine of not more than five hundred dollars.

‘The possession of any such articles, or of any other implements, apparatus or materials of any other form of gaming, shall be prima facie evidence of their use, by the person having them in possession, in the form of gaming in which like articles are commonly used. And such article found upon the person of one lawfully arrested for violation of any law relative to lotteries, policy lotteries or policy, the buying or selling of pools or registering of bets of other form of gaming shall be competent evidence upon the trial of an indictment to which it may be relevant.’

Overton claims that he was unlawfully arrested and that his personal property was unlawfully searched and seized. He also insists that the verdict of the court was against the great weight of the evidence and contrary to law.

About 4:30 o'clock in the morning of January 3, 1939, two police officers of the City of Kalamazoo, who were patrolling in a radio cruiser, received information that a restaurant at the corner of North and Walbridge had been burglarized. While en route to this point they saw defendant and another man getting out of a car in front of 425 Walbridge, about two blocks from the restaurant. The investigation made by the officers at the scene of the burglary disclosed that a door had been broken and some property taken. In the quarter-inch snow that had fallen that night they saw tracks made by a car which had welltreaded front and smooth rear tires. About a half hour later, while going south on Walbridge, the officers saw the car driven by Overton pulling away from the curb. They followed him to a driveway in front of 1103 Engleman Avenue, where they stopped the car, and one of them examined the tires. The front ones were well-treaded and the rear smooth, and Overton was arrested on suspicion. When they arrived at the police station with their prisoner, the car was searched and the glove compartment found to be locked. Overton denied having the key but said it could be found in a dresser drawer at the Engleman Avenue address. The officers went there, did not find the key, but did find, in the dresser drawer, some envelopes and pads bearing the name of the ‘Yellow Dog’ Company. They returned to the police station, where Overton still denied possession of the key, but it was found in his vest pocket. The glove compartment in the car was opened and similar ‘Yellow Dog’ envelopes and pads were found therein. Later, when the officers carefully examined the tires of Overton's car, they reached the conclusion that the tracks at the burglarized restaurant must have been made by some other car. The envelopes, pads, and other material found in Overton's room and in the automobile were identified by another police officer as those used in connection with the operation of gambling on horse reces, commonly known as ‘numbers' or ‘policy’.

A motion to suppress the seized evidence and the testimony offered at the examination, as well as a motion to quash the information, was denied.

The decisive question on appeal is whether or not the arrest of Overton was legal. 3 Comp.Laws 1929, § 17149, as amended by Act No. 84, Pub.Acts 1935 (Stat.Ann. § 28.874) reads in part:

‘Any peace officer may, without a warrant, arrest a person—— * * *

‘(c) When a felony in fact has been committed and he has reasonable cause to believe that such person has committed it; * * *.’

In People v. Licavoli, 245 Mich. 202, 222 N.W. 102, the court said: ‘The rule is pretty well settled that, if an officer believes, and has good reason to believe, that one has committed a felony, or is committing a felony in his presence, he has probable cause, as the term is used, and may arrest without a warrant and search him before confining him in jail.’ See also People v. Chyc, 219 Mich. 273, 189 N.W. 70;People v. De Cesare, 220 Mich. 417, 190 N.W. 302;Kratzer v. Matthews, 233 Mich. 452, 206 N.W. 982; and People v. Allen, 240 Mich. 491, 215 N.W. 419.

Whether an officer has reasonable cause to believe the person arrested committed a felony must depend upon the situation in the particular case. The foregoing facts, when considered together with the examination of the tires on Overton's car prior to his arrest, would furnish good reason to believe that he had committed the burglary. The arrest was legal.

The legality of the search of a vehicle in which an arrested person is riding is well settled. People v. Wallace, 245 Mich. 310, 222 N.W. 698, and People v. Davis, 247 Mich. 536, 226 N.W. 337. See also cases cited in 39 A.L.R. 818, note.

The gambling materials found in defendant's room were properly admitted under the testimony of the officer that he was given permission by Overton to go to the...