People v. Wilson , 6 Mich. App. 474 ( 1967 )

6 Mich. App. 474 (1967) 149 N.W.2d 468

PEOPLE
v.
WILSON.

Docket No. 908.

Michigan Court of Appeals.

Decided April 13, 1967.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James G. Fleming, Prosecuting Attorney, and Michael J. McGann, Assistant Prosecuting Attorney, for the people.

Hal W. Ziegler, for defendant.

T.G. KAVANAGH, P.J.

On July 24, 1964, the defendant, John L. Wilson, while incarcerated at the State prison for southern Michigan walked away from Camp Lehman, a trusty camp, to which he had been assigned. Thereafter he was arrested in the State of Arkansas and returned to southern Michigan prison at which time he was notified that the prison warden had ordered the forfeiture of the good time which he had earned under the provisions of CLS 1961, § 800.33 (Stat Ann 1954 Rev § 28.1403). Subsequently an information charging him with the criminal offense of escape from prison under CLS 1961, § 750.193 (Stat Ann 1962 Rev § 28.390) was filed and upon his appearance in Jackson county circuit court on March 11, 1965, he moved to dismiss the charge, maintaining that prosecution under it would constitute double jeopardy in view of the forfeiture of his good time by the prison authorities. The motion was denied and he entered a plea of guilty.

This appeal asserts as error the trial court's denial of his motion and its ruling that prosecution did not constitute double jeopardy.

Article 1, § 15 of the Michigan Constitution of 1963 provides:

"No person shall be subject for the same offense to be twice put in jeopardy."

Amendment 5 of the United States Constitution makes the same provision but adds the words "of life or limb."

Thus under either Constitution there are two elements in this interdict: (1) There must be successive subjection to "jeopardy" and (2) in each instance the offense must be the same.

In determining the identity of the offense it must be kept in mind that one act may constitute several offenses. For example, under proper circumstances the one act of a man robbing a store could properly support successive prosecutions for two offenses involved in the same act: armed robbery and carrying a concealed weapon.

Unless the offense is a necessary element in and part of another, an acquittal or conviction of one is not a bar to prosecution for the other.

Here we deem the one act of escape as constituting a criminal offense under the statute cited, as well as an offense against the rules of the prison evoking the forfeiture provisions of the good time statute above cited. Thus, in our view, the lack of identity of the offenses is destructive of the defendant's position.

But we also conclude that under the circumstances of this case there was no successive subjection to jeopardy.

The word "jeopardy" as used in the Constitution has always been used in a manner consonant with the following definition:

"The danger of conviction and punishment which the defendant in a criminal action incurs when a valid indictment has been found, and a petit jury has been impaneled and sworn to try the case and give a verdict in a court of competent jurisdiction." Black's Law Dictionary (4th ed 1951), p 969.

The Michigan Supreme Court has consistently held that "jeopardy" requires criminal prosecution in a court of justice. See People v. Powers (1935), 272 Mich. 303, 307, and People v. Tillard (1947), 318 Mich. 619, 623.

Here the procedure whereby the defendant's good time was forfeited was conducted as the statute requires, in an administrative proceeding and not in a criminal proceeding in a court of justice.

Affirmed.

J.H. GILLIS and McGREGOR, JJ., concurred.