People v. Mayberry

Full title: PEOPLE v MAYBERRY

Court: Michigan Court of Appeals

Date published: Mar 29, 1974

52 Mich. App. 450 (Mich. Ct. App. 1974)

217 N.W.2d 420

Opinion

Docket No. 17578.

Decided March 29, 1974.

Appeal from Oakland, William P. Hampton, J. Submitted Division 2 February 11, 1974, at Lansing. (Docket No. 17578.) Decided March 29, 1974.

Marvin Mayberry was convicted of armed robbery. Defendant appeals. Affirmed.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, and T.S. Givens, Assistant Appellate Counsel, for the people.

George C. Dovas, for defendant.

Before: J.H. GILLIS, P.J., and HOLBROOK and DENEWETH,^_ JJ.

_ Circuit judge, sitting on the Court of Appeals by assignment.

J.H. GILLIS, P.J.

A jury convicted defendant of armed robbery. MCLA 750.529; MSA 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.

1 US Const, Ams 4, 14; Const 1963, art 1, § 11.

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, properly 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.

2 The test is not of recent origin. In addition to United States v Miles, 468 F.2d 482 (CA 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 (CA 3, 1967); Page v United States, 437 F.2d 440 (CA 9, 1970); United States v Evans, 447 F.2d 129 (CA 8, 1971); United States ex rel Moore v Russell, 330 F. Supp. 1074 (ED Pa 1971); United States ex rel Gockley v Myers, 450 F.2d 232 (CA 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".

Affirmed.

DENEWETH, J., concurred.

HOLBROOK, J., concurred in the result only.