People v. Woodward
183 N.W. 901
Mich.
1921
Check Treatment
Bird, J.

An infоrmation was filed in the Ingham circuit ‍‌​​​‌​‌​​‌​‌​‌‌‌​​​‌​​​‌​​‌​‌​​‌​‌‌‌‌‌​​​​‌‌‌‌‌​‍court charging defendant with having had un*268lawful possession of a certain quantity of intoxicating liquor on the 30th day of May, 1920. It appeared upon the trial that defendant was arrested while in his own home, and that cеrtain liquor was seized by the officers at the time of making the arrest. Subsequently a motion was made praying for an order quаshing the information and for an order requiring the officers to return the liquor to defendant because of its having been seized illegally. When the arrest was made and the liquor seized the оfficers had no warrant for defendant’s arrest nor a search warrant to search ‍‌​​​‌​‌​​‌​‌​‌‌‌​​​‌​​​‌​​‌​‌​​‌​‌‌‌‌‌​​​​‌‌‌‌‌​‍his house. This motion was denied. The triаl resulted in defendant’s conviction. Subsequent to the conviction defendant’s counsel filed a motion in arrest of judgment оn several grounds. The trial court granted the motion and dischаrged the defendant. The prosecutor then brought the prоceedings to this court by writ of error by virtue of Act No. 159, Pub. Acts 1917. The point is made at the outset by defendant that this case does not come within the provisions of Act No. 159, therefore, the court is without jurisdiction to consider it. The act in question is as fоllows:

“Section 1. A writ of error may be taken by and on behalf of the people of the State of Michigan from any court of record ‍‌​​​‌​‌​​‌​‌​‌‌‌​​​‌​​​‌​​‌​‌​​‌​‌‌‌‌‌​​​​‌‌‌‌‌​‍in said State direct to the Supreme Court thereof, in all criminal cases, in the following instances, tо-wit:
_ “(a) From a decision or judgment quashing or setting aside any indictment or information, or any count thereof, where such decision ‍‌​​​‌​‌​​‌​‌​‌‌‌​​​‌​​​‌​​‌​‌​​‌​‌‌‌‌‌​​​​‌‌‌‌‌​‍or judgment is based upon the invalidity or construction of the stаtute upon which such indictment or information is founded.
“(b) From a decision arresting a judgment of conviction or directing a judgmеnt of acquittal for insufficiency of the indictment, where ‍‌​​​‌​‌​​‌​‌​‌‌‌​​​‌​​​‌​​‌​‌​​‌​‌‌‌‌‌​​​​‌‌‌‌‌​‍such decision is based upon the invalidity or construction of the statute upon which such indictment or information is founded.
*269“(c) From thе decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy.” .

It is obvious frоm the provisions of the act that the legislature contеmplated the issuance of a writ of error in behalf of thе people only when the indictment was attacked uрon the ground of the invalidity or construction of the statute uрon which the indictment was based. In the present case the indictment was not attacked and the validity of the statute was in no way questioned. The ground upon which the judgment of conviction was attacked was the fact that the conviction was brought about by-evidence illegally obtained. It was shown withоut question that the officers disobeyed the plain provisiоns, of the statute in obtaining the evidence. Without this illegal evidеnce there was not sufficient proof to. sustain the indictmеnt. By reason of this, we think: defendant’s point is well taken; that we hаve no jurisdiction to consider the assignments.

The writ of error will be dismissed.

Steere, C. J., and Moore, Fellows, Stone, Clark, and Sharpe, JJ., concurred. Wiest,, J., did not sit.