People v. Cope ( 1969 )

Fitzgerald, P. J.

Defendant was convicted of assault with intent to do great bodily harm less than murder¹ and sentenced to prison. On appeal, he presents three claims of error.

First, and most substantial, is the question of whether there was a valid arrest of defendant so as to permit a reasonable search of his apartment incident to the arrest.

A brief review of the events will detail the information available to the authorities before the arrest:

(1) Defendant’s car, a 1965 dark colored Plymouth, was investigated at about 8:30 p.m. on August 14, 1965, by the Detroit police who were checking the ages of persons seen drinking.

(2) The police recorded the license number of the vehicle.

(3) The same automobile was seen parked in the same spot approximately one hour later (9:30 p.m.).

(4) The police saw the same Plymouth parked in a lot at the intersection of Evergreen and Warren in the vicinity of Rouge Park at approximately 12:30 a.m. of August 15, 1965.

(5) Charlestta Henderson was shot at 1:40 a.m. of August 15, 1965, in Rouge Park.

(6) A witness to the shooting described the automobile from which the shooting came as a “late model Plymouth.”

(7) No other automobile of similar description was seen or checked by the police during that time.

(8) Defendant’s name was obtained by tracing the license number through vehicle registration.

Based on the above, defendant was arrested. He agreed to a search of his premises. A gun was found in a refrigerator freezer which was later identified as the weapon involved in the shooting. .

The question, therefore, is whether the arrest was valid. This Court, in People v. Wolfe (1967), 5 Mich App 543, set out guidelines regarding arrests:

“It is the function of the court to determine whether the facts available to the officers at the moment of the arrest would justify ‘a man of reasonable caution in the belief’ that an offense has been committed, in order to determine whether there has been a valid arrest without a warrant.”

Thus,

“An officer must reasonably believe and not merely suspect that the person arrested has committed a felony before the officer may make an arrest without a warrant.”

The facts recited above created more than mere suspicion. These facts would create a reasonable belief in a man of reasonable prudence that defendant had in fact committed the crime. See People v. Crawford (1969), 16 Mich App 92.

Second, defendant assigns error to the trial court’s refusal to permit him to present testimony at the pretrial hearing on the invalid search and arrest.

The hearing on the motion to suppress consisted of the testimony of the arresting officer. He testified that he was admitted to defendant’s apartment and allowed to search the premises without any threats or any other deceitful or artful measures. He further stated that he asked defendant if they could search for a gun and defendant said, “Yes, go ahead.” Subsequently the revolver was found.

Defendant’s objection is that he was not allowed to testify in his own behalf. It is clear that defendant had a complete right of cross-examination of arresting officer Evans. The only thing that defendant could have possibly said was that he did not give the police permission to search. One may waive the issuance of a search warrant and by consent permit the search of his premises. People v. Weaver (1928), 241 Mich 616, and this is clearly what defendant elected to do.

The third matter on appeal relates to incidents during the trial. Defendant claims that allowing the complaining witness to testify as to the seriousness of her injuries was prejudicial. The case of People v. Sutherland (1895), 104 Mich 468, which allows such testimony to show the aggravated nature of an assault is directly on point and dispositive of this issue.

Other objections and portions of the prosecution’s closing argument relating to specific questions have been examined and deemed not prejudicial.

Affirmed.

T. M. Burns, J., concurred.

1 MCLA § 750.84 (Stat Ann 1962 liev § 28.279),