author: M. J. Kelly, J.

text:
    PEOPLE v PRICE
    Docket No. 77-510.
    Submitted June 15, 1978, at Lansing.
    Decided August 7, 1978.
    Leave to appeal applied for.
    Albert Price, Jr., was convicted, on his plea of guilty, of second-degree murder. Prior to sentencing, the defendant moved to withdraw his guilty plea. The trial court denied the motion and sentenced the defendant to life imprisonment, Saginaw Circuit Court, Fred J. Borchard, J. The defendant appeals. Held:

    The trial court did not abuse its discretion in denying the defendant’s motion to withdraw his plea. The standard that a withdrawal of a plea of guilty should be granted with "great liberality” does not apply here where the defendant did not enter his plea until trial was ready to commence and the prosecution had gone to great expense in preparing for trial and the reasons underlying the request to withdraw the plea, are frivolous.
    Affirmed.
    1. Criminal Law — Pleas of Guilty — Motions—Withdrawal of Pleas — "Great Liberality” Standard.
    No absolute right to withdraw a guilty plea exists in Michigan; however, a motion for withdrawal of a guilty plea should be granted with "great liberality” when made prior to sentencing.
    2. Criminal Law — Pleas of Guilty — Motions—Withdrawal of Pleas — Commencement of Trial — Frivolous Reasons For Withdrawal.
    The standard that a defendant’s motion for a withdrawal of his plea of guilty should be granted with great liberality when the request is made prior to sentencing is inappropriate where the defendant’s plea was offered after trial had begun and the reasons underlying the request to withdraw the plea are frivolous.
    References for Points in Headnotes
    [1, 2] 21 Am Jur 2d, Criminal Law §§ 503-506.
    Withdrawal of plea of guilty or nolo contendere, under Rule 32 (d) of Federal Rules of Criminal Procedure, before sentence. 6 ALR Fed 665.

      Frank J. Kelley, Attorney General, Robert A Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Peter C. Jensen, Assistant Prosecuting Attorney, for the people.

      Kim R. Fawcett, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. E. Holbrook, P. J., and M. J. Kelly and P. J. Marutiak, JJ.

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

   M. J. Kelly, J.

Defendant stands convicted by his plea of guilty to an amended information charging one count of second-degree murder, MCL 750.317; MSA 28.549, arising from his participation in a multiple murder in Saginaw, Michigan. Prior to sentencing, defendant moved to withdraw his plea of guilty. This motion was denied by the trial court which subsequently sentenced defendant to life imprisonment. Defendant raises three issues in this appeal. We find the second and third issues to be meritless and therefore address only his first issue.

It is the defendant’s contention that the trial court erred when it refused his request to withdraw his guilty plea. We find no error and affirm the trial court.

No absolute right to withdraw a guilty plea exists in Michigan. People v Cochrane, 40 Mich App 316; 198 NW2d 417 (1972). The Supreme Court, however, has ruled that a motion for withdrawal of a guilty plea should be granted with "great liberality” when made prior to sentencing in People v Lewandowski, 394 Mich 529, 530; 232 NW2d 173 (1975), which affirmed People v Bencheck, 360 Mich 430, 433; 104 NW2d 191 (1960), People v Zaleski, 375 Mich 71, 79; 133 NW2d 175 (1965).

We believe the facts and circumstances of the present case place the defendant outside the scope of the cited rule. The cases cited in Bencheck and Zaleski, evidencing reasons sufficient to grant a presentence motion to withdraw a plea, involved pleas accepted before trial had begun and which included either assertions of innocence made by the defendant in conjunction with the motion to withdraw or else assertions of serious deprivations of defendant’s rights. People v Case, 340 Mich 526; 65 NW2d 803 (1954), People v Banning, 329 Mich 1; 44 NW2d 841 (1950). Thus, the statement of the rule in Bencheck and Zaleski, and particularly the cases from which that rule was derived, indicate that the "great liberality” standard is inappropriate where defendant’s plea was offered after trial had begun and the reasons underlying the request to withdraw the plea are frivolous. People v Love, 72 Mich App 413; 250 NW2d 94 (1976).

This conclusion derives added support when the recent case of People v McClain, 81 Mich App 84; 264 NW2d 1 (1977), is considered. In that case, a panel of this Court held that the trial court should construe with great liberality the request of a defendant to withdraw his plea of guilty even though it appears that the withdrawal of the plea was motivated solely by the desire not to be sentenced by a judge who was temporarily replacing the judge who had originally accepted the guilty plea. In a peremptory order, the Supreme Court reversed, stating only that the trial court had not abused its discretion in refusing to withdraw the plea. This holding suggests that the "great liberality” standard is inapplicable even where the request to withdraw the guilty plea is made prior to sentencing yet appears patently frivolous. People v McClain, 402 Mich 824; 260 NW2d 287 (1977).

In the present case, we do not believe the defendant’s assertion that his plea was coerced because of his incarceration prior to trial, for the record indicates that his plea was knowing and voluntary. Nor do we believe that the defendant should profit by his use of delaying tactics. The defense had over one year to prepare the case and the state’s offer of a plea to an amended information was made well in advance of trial. Nonetheless, the defendant’s plea of guilty was entered on the day of trial. In the meantime, all was in readiness for the trial. The case had been removed to Macomb County and the Macomb County Circuit Court had supplied 75 jurors, a courtroom and a court reporter. In addition, hotel rooms had been reserved for the many witnesses who appeared from Saginaw and a pathologist had been flown in from Washington, D.C. By "sitting on” his plea until the last moment, the defendant engaged in a time consuming and expensive delaying game with the criminal justice system. We refuse to sanction such tactics.

Where a plea is offered after trial has begun, the state has expended time and money in preparing for trial, drawing and summoning jurors, subpoenaing witnesses, and making other preparations. If defendant’s plea is then accepted, much of this investment is lost and if the defendant is permitted to withdraw his plea for unsubstantial reasons or unsubstantiated nonfrivolous reasons, the same investment must be made again. Thus, as noted above, a standard of "great liberality” is inappropriate where, as here, evidence, witnesses and jury have been brought together for defendant’s trial. We therefore find no error in the trial court’s refusal to allow the defendant to withdraw his plea of guilty.

Affirmed.


source: Caselaw Access Project

author: T. M. Burns, J.

license: Public Domain

text:
    PEOPLE v HODGINS
    Docket No. 77-555.
    Submitted February 7, 1978, at Detroit.
    Decided August 7, 1978.
    Pamela L. Hodgins took the driver’s license, social security card and car registration of Mrs. Stephany A. Leemhuis and took this identification to a branch of the Liberty State Bank and opened a checking account in the name of Stephany A. Leemhuis. The appropriate signature cards were signed and a small deposit was made. After attempting to buy a television set using a check from this account for an amount $280 greater than the deposit and signed by Pamela Hodgins, with her signature as Stephany A. Leemhuis, the defendant was arrested, and charged with forgery. She was convicted of forgery, Macomb Circuit Court, Frank E. Jeannette, J. The defendant appeals. Held:

    The facts proven at the trial do not support a conviction for forgery under the Michigan forgery statute. The defendant was incorrectly charged.
    Reversed.
    1. Forgery — Statutes—Checking Account — Account Opened in Another Person’s Name.
    The forgery statute does not make it a forgery for a defendant to open a checking account at a bank using another person’s name and identification to open the account, nor does the statute make it a forgery for the defendant to use a check against such an account signed by the defendant using his own signature of the name in which the account was opened in an amount exceeding the balance in the account (MCL 750.248; MSA 28.445).
    2. Forgery — Fraudulent Act — Instruments—The Writing Itself a Lie.
    Forgery includes any act which fraudulently makes an instrument purport to be what it is not; the key appears to be that the writing itself is a lie.

      References for Points in Headnotes
    [1-3] 10 Am Jur 2d, Banks and Banking §§ 603-615.
    36 Am Jur 2d, Forgery §§ 1, 3, 26.
    Fictitious or assumed name, forgery by use of. 49 ALR2d 852.

      3. Forgery — Misrepresentation of Identity — The Writing Itself a Lie.
    A defendant’s misrepresentation of his identity to a bank manager in opening a checking account did not make the creation of a draft on that account a forgery when presented by the defendant to pay for merchandise; the writing itself was not a lie in those circumstances.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milborn, Chief Appellate Lawyer, and Alice F. Sage, Assistant Prosecuting Attorney, for the people.

      Lawrence A. Baumgartner, for defendant on appeal.
    Before: M. J. Kelly, P. J., and T. M. Burns and R. M. Maher, JJ.
   T. M. Burns, J.

The central issue in this case is whether one who opens a checking account using the name, identification and address of another person is guilty of forgery under MCL 750.248; MSA 28.445, when she writes a check on that account for more than the balance. In ruling on various defense motions, the trial court ruled yes. We disagree and reverse.

I

In November of 1975, defendant rented part of a house from Mr. and Mrs. Leemhuis. After defendant moved, Mrs. Stephany Ann Leemhuis discovered that her driver’s license, social security card and car registration were missing from her wallet. It is apparent that defendant had taken them.

Defendant took this identification to the assistant manager of the Sterling Heights branch of the Liberty State Bank and opened a checking account in the name of Stephany A. Leemhuis. The appropriate signature cards were filled in and a small deposit was made.

The assistant manager testified that defendant was considered the owner of the account and only checks matching the signature card she had filled out when opening the account would be honored, if there were sufficient funds in the account. The real Stephany Leemhuis could not draw on the account, nor could defendant using any signature other than Stephany A. Leemhuis.

The charge of forgery is not based on the opening of the account as described above. Rather, the charge is based on the fact that defendant used one of the checks she had obtained from the bank when attempting to purchase a TV set. The check was made out and signed by defendant using the signature Stephany A. Leemhuis in an amount exceeding her original deposit by some $280. Because of the shopkeeper’s suspicions, the transaction was not completed and defendant left the store without her purchase and without the check.

The facts proven at trial do not coincide with the charge.

II

The substantive wording of the forgery statute has remained virtually unchanged for over 100 years, although various additions have been made. It now appears as MCL 750.248; MSA 28.445 and provides:

"(1) Any person who shall falsely make, alter, forge or counterfeit any public record, or any certificate, return or attestation of any clerk of a court, public register, notary public, justice of the peace, township clerk, or any other public officer, in relation to any matter wherein such certificate, return or attestation may be received as legal proof, or any charter, deed, will, testament, bond or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange, promissory note, or any order, acquittance of discharge for money or other property, or any waiver, release, claim or demand, or any acceptance of a bill of exchange, or indorsement, or assignment of a bill of exchange or promissory note for the payment of money, or any accountable receipt for money, goods or other property, with intent to injure or defraud any person, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 14 years.”

Our Supreme Court in People v Susalla, 392 Mich 387, 390; 220 NW2d 405 (1974), reaffirming the definitions set forth in In re Stout, 371 Mich 438, 440-441; 124 NW2d 277 (1963), held that forgery "includes 'any act which fraudulently makes an "instrument purport to be what it is not.” ’ ” The Susalla Court concluded: "The key appears to be that the writing itself is a lie.” 392 Mich at 392-393.

Both Susalla and Stout involved charges of forgery based on the signing of his own name by the defendant to a corporate check with the apparent or actual representation that he had authority to do so. The forgery was making the instrument (the check) purport to be what it was not (an order to pay by a corporation).

Ill

One cannot conclude that the defendant in this case committed forgery as defined in Susalla. There may have been a litany of offenses committed, but not forgery. The check given by defendant did not purport to be anything other than a personal check drawn by the person who presented it on an account that that person had opened. The misrepresentation of identity to the bank in opening the account did not make the creation of a draft on that account a forgery when presented to pay for the television. See, Rapp v State, 274 So 2d 18 (Fla App, 1973), Smith v State, 379 SW2d 326 (Tex Crim App, 1964).

Simply stated, the writing itself was not a lie. Under MCL 440.3401; MSA 19.3401, only defendant would be liable on the instrument. This was confirmed by the testimony of the bank representative. The risk of loss to which the store was exposed was the result of the lack of funds in the account, not the manner in which the instrument was prepared.

This analysis is not inconsistent with People v Warner, 104 Mich 337; 62 NW 405 (1895). In Warner the maker, payee and drawee were all fictitious names or firms. The draft purported to create liability in someone other than the defendant. As shown above, when the defendant in this case made the draft, she created liability only in herself.

The only proper charge under the present statutes appears to be issuing checks without sufficient funds. MCL 750.131; MSA 28.326. We would suggest that the Legislature follow the example of other states and enact a specific statute making it a forgery for an individual to open an account or issue checks on an account opened in the name of another with the intent to defraud third persons. The present statute does not.

The defendant was incorrectly charged and the conviction must be reversed.

Reversed.

       The fact situation in the two cited cases is essentially the same as presented in this case. Reversal of forgery convictions occurred in both cases because the signature did not purport to be the act of another.

        Súsalla makes it clear that Michigan does not require that the signature purport to be the act of another, but the alleged forgery must make the instrument purport to be something which it is not. That is consistent with requiring a showing that liability is created in someone other than the defendant or some liability is enlarged.

       The information charged that the check was issued with the intent to defraud or injure the Liberty State Bank rather than the merchant. Our disposition makes it unnecessary to discuss this apparent error in the manner in which the oifense was alleged.


author: M. J. Kelly, J. Bashara, P. J.

text:
    PEOPLE v BENNETT
    Docket No. 77-935.
    Submitted March 14, 1978, at Lansing. —
    Decided August 7, 1978.
    Leave to appeal applied for.
    Isaac Bennett was convicted by a jury of larceny from a motor vehicle, and, on his plea of guilty, of being an habitual offender, fourth offense, Ingham Circuit Court, Jack W. Warren, J. The defendant appeals, contending that the trial judge abused his discretion by allowing the prosecutor to impeach the defendant through the use of the defendant’s two 1975 convictions for larceny from a motor vehicle. Held:

    It was an abuse of discretion for the trial judge to allow the impeachment of the defendant with the use of the two prior convictions in 1975 for larceny from a motor vehicle. The prosecution had already referred to three other prior convictions to impeach the defendant’s credibility and the reference to the two prior convictions for the offense identical to the charged offense tended only to prejudice the jury regarding the defendant’s guilt of the crime charged. This prejudice was not harmless error.
    Reversed and remanded.
    Bashara, P. J., dissented. He would hold that the trial judge properly exercised his discretion.
    Opinion of the Court
    1. Criminal law — Evidence—Impeachment of Defendant — Prior Convictions — Discretion.
    A trial judge, in his discretion, may admit evidence of a criminal defendant’s prior convictions when the defendant testifies in his own behalf; however, the discretion of the trial judge is not unlimited, and any ruling that the trial judge makes is not automatically correct simply because he has stated on the record that he is exercising his discretion.
    2. Criminal Law — Evidence—Impeachment of Defendant — Prior Convictions — Identical Crimes.
    Introduction of a defendant’s prior convictions for the same crime as the crime for which he is charged, as impeachment evidence, does not necessarily require reversal; however where the admission of evidence of prior convictions of two identical crimes is viewed cumulatively with three other nonidentical prior convictions, which were more than sufficient to impeach the defendant, the admission of evidence of the defendant’s prior convictions for the same crime as the one with which he was charged tipped the scales so that the prejudicial effect on the defendant outweighed any probative relevance and reversal is required.

      Reference for Points in Headnotes
    [1-3] 30 Am Jur 2d, Evidence § 327.

      Dissent by Bashara, P. J.
    3. Criminal Law — Evidence—Impeachment op Dependant — Prior Convictions — Discretion.

      A trial judge has the discretion to admit evidence of a criminal defendant’s prior convictions when the defendant testiñes in his own behalf; the Court of Appeals should not ñnd that a trial judge abused this discretion where a trial judge properly recognized and used his discretion and in so doing allowed the prosecution to allow evidence of ñve prior convictions rather than three.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, and Michael G. Woodworth, Chief Appellate Attorney, for the people.

      Charles A. Palmer, for defendant on appeal.
    Before: Bashara, P. J., and M. J. Kelly and Allen, JJ.
   M. J. Kelly, J.

Defendant was convicted on December 16, 1976, of larceny from a motor vehicle, MCL 750.356a; MSA 28.588(1), by an Ingham County Circuit Court jury. Immediately following the jury’s verdict, defendant pled guilty to an information charging him with being an habitual offender, fourth offense, MCL 769.13; MSA 28.1085. On January 14, 1977, the trial court sentenced defendant to 2-1/2 to 10 years imprisonment. He appeals of right raising three issues, one of which is dispositive.

Defendant argues that the trial judge abused his discretion by allowing the prosecutor to impeach the defendant through the use of defendant’s two 1975 convictions for larceny from a motor vehicle. He asserts that since these offenses were identical to the charged crime the jury could not help but be prejudiced. Three other 1975 felony convictions of the defendant were available for impeachment, and were crimes bearing more directly upon his credibility: two convictions for receiving or concealing stolen property over the value of $100, and one conviction for attempted forgery.

In exercising his discretion, the trial judge expressly revealed on the record his understanding of the law, and delineated its application to the facts before him, stating:

"THE COURT: Well, the Court recognizes clearly its responsibility to pass upon the matter of what previous offenses — more correctly, what previous convictions may be inquired into by the Prosecuting Attorney when the Defendant takes the witness stand. This Court further recognizes that previous cases have set forth certain standards that a Court should consider in passing upon this matter. In US versus Mahone, 537 Federal Second 922, a 1976 case, the Court there indicated some five criteria and made reference to Winston on Evidence.
The criteria set forth in the Mahone case are these: One, the impeachment value of the prior crime. Two, the point in time of the conviction and the witness’s subsequent history. Three, the similarity between the past crime and the charged crime. The importance of the Defendant’s testimony. And, finally, the centrality of the credibility issue.
In an article in the Wayne Law Review, Volume 21, page 470, the author, James K. Robinson, discusses the matter of the use of prior convictions. I make mention of that only because the Court has considered and reviewed it before passing upon this subject. In People versus Townsend, [60 Mich App 204; 230 NW2d 378 (1975)] I don’t know whether Mr. Edwards hit this or touched upon this case, a Court of Appeals decision April 7, 1975. The Court there said the fact that prior criminal convictions which the Prosecutor seeks to use to impeach a Defendant’s credibility are similar to the offense for which the Defendant is on trial does not require their exclusion. In our case the convictions relied upon by the Prosecutor are in close proximity of time with the case at hand. This lends or tends to cause the Court to lean towards admissibility.
It’s to be observed that two of these offenses are for larceny from an auto. Two are receiving and concealing over a hundred, and the final one is for attempted forgery. All deal with or are concerned with dishonesty. Mention of this is for the purpose of attacking credibility, believability, the honesty of the Defendant, if you please, at least in part.
Having all of this in mind, this Court does exercise its discretion and will permit inquiry into these five offenses. It’s to be observed that the Prosecuting Attorney is not attempting to utilize offenses ancient in time, far removed or offenses not indicative of dishonesty.”

The trial judge, in his discretion, may admit evidence of defendant’s prior convictions when the defendant testifies in his own behalf. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), MCL 600.2159; MSA 27A.2159. The trial judge reflected on the record that he was using his discretion when he ruled in favor of allowing all five of defendant’s 1975 convictions into evidence. See People v Cherry, 393 Mich 261; 224 NW2d 286 (1974). This Court has been reluctant to disturb such a discretionary ruling. See e.g. People v Gunter, 76 Mich App 483, 490-491; 257 NW2d 133 (1977).

We observe that the discretion of the trial judge is not unlimited, and any ruling that the trial judge makes is not automatically correct simply because he has stated on the record that he is exercising his discretion.

Upon a review of the instant facts we hold that the trial judge abused his discretion. Theoretically, he allowed the two prior convictions of larceny from a motor vehicle solely for the purpose of impeaching the credibility of the defendant. The reference to the three other convictions, however, more than adequately served the purpose of impeaching defendant’s credibility. The question becomes: How many convictions are allowable to support an impeachment purpose? We hold that the trial judge erred when he allowed the prosecutor to impeach defendant using defendant’s past convictions for the identical crime for which he was charged. We note that reference to identical crimes does not necessarily require reversal, but when viewed cumulatively with the three other nonidentical convictions which are more than sufficient to impeach defendant, reversal is required. Cf. People v Townsend, 60 Mich App 204, 206; 230 NW2d 378 (1975), People v Gunter, supra, at 491. The admission of defendant’s prior convictions for the same crime as the one he was charged with tipped the scales so that the prejudicial effect on the defendant outweighed any probative relevance. Cf. People v Stephens, 58 Mich App 701, 706; 228 NW2d 527 (1975).

The jury was informed that the defendant had been convicted twice in the past of crimes identical to the one on trial. We cannot say that the jury would not believe that defendant was more likely to commit this crime again because of his past conduct. The prejudice is not harmless. See People v Killebrew, 61 Mich App 129, 132; 232 NW2d 329 (1975), People v Florida, 61 Mich App 653, 666-667; 233 NW2d 127(1975). See also People v Jackson, supra, at 333.

We hold that the trial judge went beyond the proper scope of admitting evidence to impeach the defendant, and allowed testimony which tended only to prejudice the jury regarding defendant’s guilt of the crime charged.

Defendant’s other claimed errors require no discussion.

Reversed for a new trial.

Allen, J., concurred.

Bashara, P. J.

(dissenting). I respectfully dissent. When the trial judge elected to allow all of defendant’s prior felony convictions into evidence, he used that discretion which our Supreme Court has so forcefully advised must be implemented. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), People v Cherry, 393 Mich 261; 224 NW2d 286 (1974).

The majority correctly finds that we have been reluctant to disturb such a ruling. The Supreme Court or the Legislature has not proscribed the use of felony convictions for impeachment purposes. Until that time, I am loathe to say that when a trial judge allows five prior felony convictions into the record rather than three, he is abusing his discretion.

I would affirm the conviction.


author: N. J. Kaufman, J. J. H. Gillis, P. J.

text:
    PEOPLE v RICHENDOLLAR
    Docket No. 77-1112.
    Submitted May 3, 1978, at Lansing. —
    Decided August 7, 1978.
    Leave to appeal applied for.
    Charlotte F. Richendollar was convicted in Jackson Circuit Court of inducing first-degree murder, James G. Fleming, J. Defendant appeals alleging that the statute under which she was convicted is unconstitutionally vague and constitutes cruel and unusual punishment, that the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of inducing second-degree murder, and in failing to give a requested instruction on manslaughter, and that the prosecutor improperly commented during cross-examination of defendant on her exercise of her right to silence. Held:

    1. The statute proscribing the inducement, inciting or exhortion of another to commit life-threatening misdemeanors or felonies is not unconstitutional as a form of cruel and unusual punishment and is not unconstitutionally vague.
    2. Every charge of first-degree murder necessarily includes the lesser offense of second-degree murder; the trial court erred reversibly in failing sua sponte to give an instruction on inducing, inciting, or exhorting second-degree murder in a trial for inducing, inciting, or exhorting someone to kill another person, because a defendant who induces, incites or exhorts another to commit first-degree murder necessarily is inducing, inciting or exhorting second-degree murder.
    3. Manslaughter is not a necessarily included offense of the crime of murder, but it may become an included offense where the evidence adduced at trial would support a verdict of guilty of that crime; where there is no evidentiary support for manslaughter the trial court is not required to instruct the jury on it.

      References for Points in Headnotes
    [1] 40 Am Jur 2d, Homicide §§ 44 et seq., 525 et seq.

    [2] 40 Am Jur 2d, Homicide §§ 54-70, 525-535.
    [3] 16 Am Jur 2d, Constitutional Law § 552.
    [4] 21 Am Jur 2d, Criminal Law § 356.
    [5] 21 Am Jur 2d, Criminal Law §§ 115-123.
    [6] 40 Am Jur 2d, Homicide § 525 et seq.

      4. The rule proscribing comment by a prosecutor on a defendant’s assertion of the Fifth Amendment right to silence at questioning is not applicable where the prosecution is asking about a specific statement made by the defendant, because silence is not involved.
    Remanded for resentencing.
    J. H. Gillis, P. J., partially concurred, contending that a jury should be requested to determine whether the crime of first-degree murder or second-degree murder is involved in a charge of inciting, inducing or exhorting such a crime, but the jury finding, is relevant only to the degree of the penalty to be imposed; it does not constitute a finding of a greater or lesser included offense.
    Opinion op the Court
    1. Homicide — First-Degree Murder — Second-Degree Murder — Inducing Murder — Included Offenses.
    Every charge of first-degree murder necessarily includes the lesser offense of second-degree murder; a trial court erred reversibly in failing sua sponte to give an instruction on inducing, inciting, or exhorting second-degree murder in a trial for inducing, inciting, or exhorting someone to kill another person because a defendant who induces, incites or exhorts another to commit first-degree murder necessarily is inducing, inciting or exhorting second-degree murder (MCL 750.157b; MSA 28.354[2]).
    2. Homicide — Murder—Manslaughter—Evidence—Instructions to Jury.
    Manslaughter is not a necessarily included offense of the crime of murder but it may become an included offense where the evidence adduced at trial would support a verdict of guilty of that crime; where there is no evidentiary support for such a crime a trial court is not required to instruct the jury on it.
    3. Homicide — Constitutional Law — Inciting Murder — Cruel and Unusual Punishment — Vagueness.
    The statute proscribing the inducement, inciting or exhortion of another person to commit life threatening misdemeanors or felonies is not unconstitutional as a form of cruel and unusual punishment and is not unconstitutionally vague (MCL 750.157b; MSA 28.354[2]).

      4. Constitutional Law — Criminal Law — Right to Silence — Prosecutor’s Comments — Prior Statements.
    The rule proscribing comment by a prosecutor on the defendant’s assertion of the Fifth Amendment right to silence at the time of arrest is not applicable where the prosecution is asking about a specific statement which was made by the defendant at the time of arrest because silence is not involved.
    5. Criminal Law — Aiding and Abetting — Inducing Crime — Commission of Crime.
    A criminal offense must have occurred before a defendant may be charged as an aider and abettor; but an underlying criminal offense is not necessary for a charge of inducing, inciting or exhorting the commission of a crime.
    Partial Concurrence by J. H. Gillis, P. J.
    6. Homicide — Inducing Murder — Instructions to Jury — Penalty— Included Offenses.

      A jury should be requested to determine whether the crime of ñrst-degree murder or second-degree murder is involved in a charge of inciting, inducing or exhorting murder, but the jury’s ñnding is relevant only to the degree of the penalty to be imposed; it does not constitute a ñnding of a greater or lesser included offense (MCL 760.157b; MSA 28.354[2]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward Grant, Prosecuting Attorney, and Bruce A. Barton, Special Prosecuting Attorney, for the people.

      Myron E. Sanderson, for defendant on appeal.
    Before: J. H. Gillis, P. J., and D. E. Holbrook and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

Charged with conspiracy to commit first-degree murder, MCL 750.157a; MSA 28.354(1), MCL 750.316; MSA 28.548, and with inciting, inducing or exhorting first-degree murder, MCL 750.157b; MSA 28.354(2), defendant was acquitted of the conspiracy charge, and convicted of the inciting, inducing or exhorting charge. Defendant was sentenced to life imprisonment and appeals as of right.

Testimony by prosecution witnesses indicated that on Thursday, August 12, 1976, Roger Hinton and two other men were picked up by defendant while hitchhiking. Defendant told the men that her fiance and his family were trying to accuse her of embezzlement. Hinton suggested, "Why don’t you have, him killed?” Defendant took Hinton seriously and offered him $40,000 of a life insurance policy on her fiance of which she was the beneficiary. Hinton testified that defendant told them it would be best to do it at night and with a gun. Defendant also told them that her fiance would have $500 in his possession.

On Sunday, August 15, the three men went to the house of defendant’s fiance. Defendant’s fiance was struck with a pipe wrench and then stabbed to death. The house was ransacked in the search for the $500 and a radio and wallet were also taken. Hinton pled guilty to first-degree murder in a separate proceeding.

On appeal, defendant raises many issues, most dealing in some way with MCL 750.157b; MSA 28.354(2), which provides as follows:

"Any person who incites, induces or exhorts any other person to unlawfully burn any property, to murder, to kill, to wound or to commit an aggravated or felonious assault on any person or to do any act which would constitute a felony or circuit court misdemeanor, that may endanger or be likely to endanger the life of any person, or who aids and abets in any such inciting, inducing or exhorting shall be punished in the same manner as if he had committed the offense, incited, induced or exhorted.”

We will chiefly focus on the question of lesser included offenses. As noted earlier, defendant was charged with inciting, inducing, or exhorting first-degree murder. Defendant’s trial counsel requested that the trial court charge the jury on inciting to commit manslaughter. The trial court refused to give the requested lesser included instruction because it found that inducing, inciting, or exhorting someone to kill another person necessarily includes the intention to have that person killed, and thus only first-degree murder is involved.

Two major questions are presented: 1) Did the trial court commit reversible error by failing to give the requested instruction on manslaughter? 2) Did the trial court commit reversible error by failing to sua sponte instruct on the lesser included offense of inciting, inducing, or exhorting second-degree murder? We will treat them in inverse order.

In People v Jenkins, 395 Mich 440, 442; 236 NW2d 503 (1975), the Supreme Court held that:

"Because of the significant differences in the penalties between first- and second-degree murder, and because every charge of first-degree murder necessarily includes the lesser offense of second-degree murder, in every trial for first-degree murder, including felony murder, the trial court is required to instruct the jury sua sponte, and even over objection, on the lesser included offense of second-degree murder.”

Viewing an admittedly different factual situation than the traditional homicide scenario, we must decide whether the holding should be applied in this case. Since both the legal and policy considerations underlying the holding in People v Jenkins, supra, are present, we hold that the trial court committed reversible error in not instructing sua sponte on second-degree murder.

In People v Morrin, 31 Mich App 301, 310-311; 187 NW2d 434 (1971), lv den, 385 Mich 775 (1975), Justice (then Judge) Levin succinctly defined second-degree common-law murder:

"A person who kills another is guilty of the crime of murder if the homicide is committed with malice aforethought. Malice aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter. The intent to kill may be implied where the actor actually intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm.” (Footnotes omitted.)

To that base, we add the Supreme Court’s holding in People v Carter, 395 Mich 434, 437-438; 236 NW2d 500 (1975):

"Second-degree murder is always a lesser included offense of first-degree murder. First-degree murder is second-degree (common-law) murder plus an element, viz., either premeditation or the perpetration or attempt to perpetrate an enumerated felony. People v Allen, 390 Mich 383; 212 NW2d 21 (1973). Conversely, second-degree murder is first-degree murder minus premeditation or the enumerated felony.” (Emphasis in original.)

Legally, then, if a person incites, induces, or exhorts another to commit first-degree murder, necessarily that person is inciting, inducing, or exhorting second-degree murder. People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975).

Additionally, because a violator of MCL 750.157b; MSA 28.354(2), "shall be punished in the same manner as if he had committed the offense, incited, induced, or exhorted”, judicial concerns over the severity of punishment for first-degree murder warrant that the Jenkins holding be applied to the assailed statute. However, as in People v Jenkins, supra, a new trial is not required.

This case shall be remanded for entry of a judgment of conviction of the lesser-included offense of inciting, inducing, or exhorting second-degree murder and for resentencing. If, however, the prosecuting attorney is persuaded that the ends of justice would be better served, upon notification to the trial court before resentencing, the trial court shall vacate the judgment of conviction and grant a new trial on the charge that the defendant committed the crime of inciting, inducing, or exhorting first-degree murder. People v Jenkins, supra, People v Herbert Ross, 73 Mich App 588; 252 NW2d 526 (1977).

As noted above, defendant’s other lesser-included offense contention is that the trial court erred in not giving a requested instruction on manslaughter. The legal question subsumed in defendant’s argument was recently decided by the Supreme Court. People v Van Wyck, 402 Mich 266, 268; 262 NW2d 638 (1978). The Supreme Court concluded:

"We hold that manslaughter is not a necessarily included offense within the crime of murder but that it may nonetheless be an included offense if the evidence adduced at trial would support a verdict of guilty of that crime.”

A review of the evidence adduced at trial supports the trial court’s refusal to give the requested instruction. There was no evidence of mitigating circumstances or of criminally negligent behavior. Thus, the trial court’s refusal did not constitute reversible error.

Defendant’s other contentions may be answered with more brevity. The three factors considered by the Supreme Court in People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972), lead to the conclusion that MCL 750.157b; MSA 28.354(2) is not unconstitutional as a form of cruel and unusual punishment.

Defendant’s contentions that MCL 750.157b; MSA 28.354(2) is void for vagueness and punishes constitutionally protected speech were rejected in People v Chapman, 80 Mich App 583; 264 NW2d 69 (1978), with which we agree.

Defendant also contends that the prosecutor cross-examined her concerning her silence at the time of her interrogation by the police. Defendant’s reliance on People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), is misplaced. The assailed questions did not address defendant’s silence or any failure to make a statement. Rather, the prosecutor was asking defendant about a specific statement she had made. This Court has previously held that Bobo is not applicable where a defendant has made a statement because silence is not involved. People v Hunt, 68 Mich App 145; 242 NW2d 45 (1976), People v Gant, 55 Mich App 510; 222 NW2d 784 (1974).

Defendant’s other two contentions have been carefully considered and are rejected.

Remanded for proceedings in conformity with this opinion. We do not retain jurisdiction.

D. E. Holbrook, J., concurred.

J. H. Gillis, P. J.

(concurring). I agree that the trial court should have asked the jury to determine if the actions of the defendant constituted a request to commit a first-degree murder or a second-degree murder. The only reason that such a request should be made to the jury is to determine what penalty should be imposed on the defendant in the event of a conviction since the act provides that the person who incites, induces or exhorts another to murder or kill shall be punished in the same manner as if he had committed the offense which he incited, induced or exhorted.

I do not believe that this is a lesser included offense but it is a lesser penalty imposition.

I agree with the balance of the majority opinion and I too would remand this cause to the trial court for sentencing as though the jury had made a determination that the defendant had incited, induced or exhorted another to commit second-degree murder. If, however, the prosecuting attorney is persuaded that the ends of justice would be better served, upon notification to the trial court before resentencing, the trial court shall vacate the judgment of conviction and grant a new trial wherein the jury would, inter alia, be required to determine if the defendant incited, induced or exhorted another to commit first- or second-degree murder.

       In denying the requested instruction on lesser-included offenses, the trial court stated:
      "If you are inducing, inciting or exhorting somebody to kill somebody you are certainly intending that person be killed and looking at that standpoint an intentional killing is first degree murder”.
      It should be noted that the crime defined by the trial court was common-law second-degree murder. People v Morrin, 31 Mich App 301, 310-311; 187 NW2d 434 (1971), lv den, 385 Mich 775 (1975).

       Certainly, it may be contended that the act of inciting, inducing, or exhorting of necessity satisfies the element of premeditation. Legally, it is sufficient to state that the judicial policy of this state in this area (to be discussed in the text of this opinion infra) does not permit such a conclusion to be drawn. Factually, we note that even appellee concedes the possibility that "there might be other cases in which the facts indicate incitement to commit second-degree murder.”

       Defendant’s participation in the crime was sufficient to have charged her as an aider and abettor to the murder. As in People v Hodo, 51 Mich App 628, 634; 215 NW2d 733 (1974), lv den, 393 Mich 806 (1975), defendant "alone had the necessary information * * * to initially create and formulate the [murder] plan.” An aider and abettor may "be prosecuted, indicted, tried, and on conviction shall be punished as if he had directly committed [the] offense”. MCL 767.39; MSA 28.979. However, to be charged as an aider and abettor, a criminal offense must have occurred. That is not necessary under MCL 750.157b; MSA 28.354(2). A person may be convicted even if no offense took place.
      Thus, it seems anomalous to suggest that in the more serious situation — where a murder actually occurs — a defendant gets the benefit of a second-degree murder instruction, whereas in the less serious situation — where no murder takes place — a defendant is restricted to the first-degree murder instruction. It seems capricious to hold, as is the case here where the criminal offense did occur, that the range of instructions to which defendant is entitled is determined by the way she was charged.
      We further note that had Hinton not pled guilty to first-degree murder, under People v Jenkins, 395 Mich 440, 442; 236 NW2d 503 (1975), the trial court would have been required to instruct on second-degree murder.


author: D. E. Holbrook, P. J.

text:
    DOWELL v GENERAL TELEPHONE COMPANY OF MICHIGAN
    Docket No. 77-2174.
    Submitted June 15, 1978, at Lansing.
    Decided August 7, 1978.
    Leave to appeal applied for.
    Plaintiff Richard A. Dowell, a journeyman lineman employed by Harris McBurney Company, was injured on the job. At the time of his injuries his employer was under contract with defendant General Telephone Company of Michigan, and, pursuant to that contract, he was working to transfer telephone cables from an existing pole to a new pole. Plaintiff sued defendant for damages for his injuries alleging defendant failed in his duty: (1) to provide a reasonably safe place to work; (2) to provide reasonably necessary equipment to render the work safe; and (3) to warn plaintiff of existing hazardous conditions. The Genesee Circuit Court, Earl E. Borradaile, J., entered judgment in favor of plaintiff in the amount of $180,000 pursuant to a jury verdict. Plaintiff had moved the court for additur or, in the alternative, a new trial on the issue of damages only. Defendant had moved for judgment notwithstanding the verdict. Both motions were denied. Defendant appeals raising numerous issues. Held:

    1. In considering a motion for a directed verdict the trial court should consider all of the evidence in the record and, giving the party against whom the motion for a directed verdict is made the benefit of the most favorable interpretation of the evidence as a whole and the benefit of all reasonable inferences, should direct a verdict whenever there would be a duty to set aside a contrary verdict as being against the weight of the evidence.
    2. The term "inherently dangerous” means that type of danger which inheres in the instrumentality or condition itself at all times, thereby requiring special precautions to be taken with respect to it to prevent injury; whether an activity is inherently dangerous is a question of fact to be determined by the trier of facts.

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial § 481 et seq.

    [2] 57 Am Jur 2d, Negligence §§ 108, 109.
    [3, 4] 31 Am Jur 2d, Expert and Opinion Evidence § 16 et seq.

    [5] 41 Am Jur 2d, Independent Contractors §§ 24-36.
    [6] 57 Am Jur 2d, Negligence § 418 et seq.

      3. Rules governing the admissibility of testimony of expert witnesses are: (1) there must be an expert; (2) there must be facts in evidence which require or are subject to examination and analysis by a competent expert; and (3) there must be knowledge in a particular area that belongs more to an expert than to the common man; testimony of journeyman linemen with years of experience on the nature of the hazards encountered in their work and on the likelihood of avoiding these hazards was properly admitted as expert testimony because the evidence which had been presented to the jury could not be adequately comprehended, analyzed and weighed by it without the aid of the special knowledge of the expert as to the meaning and significance of the facts in evidence.
    4. One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
    5. The trial court properly instructed a jury on the rescue doctrine when it instructed: If you find that plaintiff failed to use such care as the court has just defined it, but you find that he was acting under what he saw in a reasonable effort to save the third person from harm, this may exclude him from being found contributorily negligent.
    Affirmed.
    1. Motions — Motion for Directed Verdict — Evidence—Inferences.
    A trial court, in considering a motion for a directed verdict, should consider all of the evidence in the record and, giving the party against whom the motion for a directed verdict is made the benefit of the most favorable interpretation of the evidence as a whole and the benefit of all reasonable inferences, should direct a verdict whenever there would be a duty to set aside a contrary verdict as being against the weight of the evidence.
    2. Negligence — Inherently Dangerous — Question of Fact.
    The term "inherently dangerous” means that type of danger which inheres in the instrumentality or condition itself at all times, thereby requiring special precautions to be taken with respect to it to prevent injury; whether an activity is inherently dangerous is a question of fact to be determined by the trier of facts.

      3. Evidence — Admissibility—Witnesses—Expert Witnesses.
    Rules governing the admissibility of testimony of expert witnesses are: (1) there must be an expert; (2) there must be facts in evidence which require or are subject to examination and analysis by a competent expert; and (3) there must be knowledge in a particular area that belongs more to an expert than to the common man.
    4. Evidence — Admissibility—Witnesses—Expert Witnesses — Journeyman Lineman as Expert Witness.
    Testimony of journeyman linemen with years of experience on the nature of the hazards encountered in their work and on the likelihood of avoiding these hazards was properly admitted as expert testimony where the evidence which had been presented to the jury could not be adequately comprehended, analyzed and weighed by it without the aid of the special knowledge of the expert as to the meaning and significance of the facts in evidence.
    5. Negligence — Master and Servant — Liability—Independent Contractor — Retained Control by Employer.
    One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physicial harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
    6. Negligence — Rescue Doctrine — Instructions to Jury.
    A trial court properly instructed a jury on the rescue doctrine when it instructed: If you find that plaintiff failed to use such care as the court has just defined it, but you find that he was acting under what he saw in a reasonable effort to save the third person from harm, this may exclude him from being found contributorily negligent.

      Manason & Ernstein, P. C., for plaintiff.

      Richard H. Ebbott, for defendant.
    Before: D. E. Holbrook, P. J., and M. J. Kelly and P. J. Marutiak, JJ.

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

   D. E. Holbrook, P. J.

This Court has been asked to review a judgment entered in favor of plaintiff Richard Dowell, a journeyman lineman, against General Telephone Company of Michigan in the amount of $180,000. Plaintiffs recovery represented damages for personal injuries suffered when he fell approximately 20 feet to the ground from a telephone pole. Although the injuries to plaintiffs leg and to his back were admitted, virtually every other factual incident surrounding plaintiffs accident was disputed.

The injuries to plaintiff occurred on May 10, 1972, at which time he was a member of a three-man crew employed by Harris McBurney Company, a firm under contract with defendant company to transfer telephone cables from an existing pole to a new taller pole at the corner of M-15 and Pine Street in Otisville, Michigan. The crew provided some of its own tools and Harris McBurney provided additional tools and a vehicle. The defendant furnished materials, some specialized equipment and blueprints.

At the job site, one of plaintiffs co-workers, Hal Strange, was atop the new pole preparing to transfer cable. Plaintiff and his foreman were apparently assisting from ground level. The testimony of plaintiff and Strange varied significantly with regard to events leading up to plaintiffs fall. Depending upon whose testimony the jury chose to believe, the plaintiff either began to climb the new pole primarily to render first aid to Strange or he ascended the pole in order to assist Strange in releasing a jammed vise. Testimony also conflicts as to whether it was necessary for the plaintiff, regardless of his purpose in climbing the pole, to transfer to the older pole alongside. He testified that Strange, and the equipment with which Strange was working, precluded him from continuing his ascension on the new pole. Strange felt that although they would be crowded, he would be able to make room for the plaintiff on the new pole.

At any rate, plaintiff did attempt to cross to the old pole to continue his climb. As he was attempting this maneuver his right gaff (a climbing spike attached to the lineman’s boots) failed to anchor in the old pole and he fell. Testimony as to the condition of the pole being replaced varied greatly. It was admittedly untreated cedar and soft to some extent; at one point one of the defendant’s witnesses suggested it was being replaced because it was unsafe. Plaintiff claimed that it had woodpecker holes, was cracked and rotten on the outside, and that its deteriorated condition had caused his fall. For the most part, testimony of defendant’s witnesses was to the effect that the pole was merely "ragged” and was. not unsafe. Testimony conflicted over whether the pole was likely to have received a close inspection by defendant recently.

The foreman, who testified on behalf of defendant, tended to corroborate Strange’s testimony, although he had no knowledge of many of the disputed matters. Strange had been continuously in the employ of the defendant since a few months after the accident which may have impaired his credibility.

The defendant-appellant’s first allegation of error relates to the trial court’s failure to deny its motion for directed verdict for failure to state a cause of action. Plaintiff proceeded on three alternative theories of negligence based on breach of defendant’s duty: (1) to provide a reasonably safe place to work; (2) to provide reasonably necessary equipment to render the work safe; and (3) to warn plaintiff of existing hazardous conditions. Defendant’s alleged breach of these duties was claimed to consist of its: (1) failure to detect the dangerous condition of the old pole; (2) failure to provide the Harris McBurney crew with a so-called "bucket truck”; and (3) failure to warn the plaintiff of the hazardous condition of the old pole.

The standard for evaluating a motion for directed verdict under GCR 1963, 515.1 is stated in the author’s comments to 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 530 as follows:

"[T]he trial judge should consider all of the evidence in the record, including that which supports and that which detracts from the issue in question, and, giving the party against whom the motion for a directed verdict is made the benefit of the most favorable interpretation of the evidence as a whole and the benefit of all reasonable inferences, should direct a verdict whenever he would have the duty to set aside a contrary verdict as being against the weight of the evidence.”

It is considered well-settled that:

"In considering the question whether defendant was entitled to a directed verdict, the testimony must be construed as strongly as possible in favor of the plaintiff. * * * The specific inquiry is whether this court can say, as a matter of law, giving to plaintiffs proofs the strongest probative force to which they are entitled, that the evidence was not sufficient to justify submitting to the jury the questions of defendant’s negligence and its knowledge or notice of the situation.” (Citations omitted.) Cabana v City of Hart, 327 Mich 287, 305; 42 NW2d 97 (1950).

Applying this restrictive standard to the instant case, we cannot say as a matter of law that the court erred in denying defendant’s motion for a directed verdict. The plaintiff presented sufficient proof to support each aspect of his several alternative claims and to build a prima facie case. While much of this evidence was contradicted by defendant’s witnesses, direction of a verdict under such circumstances would be a denial of the right to trial by jury. 50 CJS, Juries, § 130, pp 857-859. As the Court said in Schedlbauer v Chris-Craft Corp, 381 Mich 217, 229-230; 160 NW2d 889 (1968):

"It seems that we must constantly remind those interested in negligence law that a motion by the defendant for a directed verdict presents no question of credibility, also that the trial judge may not select among actual or seeming contradictory statements of a witness given on direct examination and cross-examination what he believes should be applied to the motion. Instead, the movant automatically stipulates that, for the purposes of his motion only, the trial judge may and should apply the submitted evidence in that light which our reports have portrayed steadily since these passages appeared a full century ago in the Van Steinburg Case (Detroit & Milwaukee R. Co. v. Van Steinburg [1868], 17 Mich 99, 117, 118):
" 'In determining this question, we must look at the case as it appears from the plaintiff’s own testimony, unqualified by any which was offered on the part of the defendants, and must concede to him any thing which he could fairly claim upon that evidence. He had a right to ask the jury to believe the case as he presented it; and, however improbable some portions of his testimony may appear to us, we can not say that the jury might not have given it full credence. It is for them, and not for the court to compare and weigh the evidence. For the purposes of any positive instructions which one party may demand upon the evidence, he must concede all that his opponent may claim from it.’”

The plaintiff’s evidence supplied a "reasonable basis for a jury finding contrary to the requested verdict”. 2 Honigman & Hawkins, supra, p 530.

The defendant further alleges that the trial court erred by instructing the jury with regard to inherently dangerous activity, and challenging the admissibility of evidence placed on the record in this regard by plaintiff’s expert witnesses. The plaintiff contended that the defendant’s liability could be predicated either upon its retention of control over the operation, and consequent liability for failure to take reasonable safety precautions to protect its workmen, or, upon the defendant’s nondelegable responsibility for injuries resulting from the performance of inherently dangerous tasks. McDonough v General Motors Corp, 388 Mich 430; 201 NW2d 609 (1972), and Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974).

According to 65 CJS, Negligence, § 66, p 944, n 32.25: "The term 'inherently dangerous’ means that type of danger which inheres in the instrumentality or condition itself at all times, thereby requiring special precautions to be taken with respect to it to prevent injury”.

Whether the activity being analyzed is "inherently dangerous” is thus a question of fact to be determined by the jury. Plaintiff proffered himself and another journeyman lineman as expert witnesses: each man testified as to the hazardous elements of their employment. Although the defendant challenges their status as experts qualified to give expert testimony, it is clear from a reading of the transcript that the subject of their testimony was "so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman” and that they had "sufficient skill, knowledge, or experience in that field or calling as to make it appear that his [their] opinion or inference will probably aid the trier in his search for truth”. McCormick, Evidence (2d ed), Expert Witnesses, § 13, pp 29-30.

On one of the several occasions when the Michigan Supreme Court has considered the problem, O’Dowd v Linehan, 385 Mich 491, 509-510; 189 NW2d 333 (1971), it set forth the following rules:

"[W]hat are the rules governing the admissibility of such [expert] testimony?
'T. There must be an expert. * * *
"2. There must be facts in evidence which require or are subject to examination and analysis by a competent expert. * * *
"3. Finally, there must be knowledge in a particular area that belongs more to an expert than to the common man.” (Emphasis omitted.)

In the instant case journeyman linemen with years of experience testified on the nature of the hazards encountered in their work and on the likelihood of avoiding these hazards; their testimony was of assistance to the jury in sifting the conflicting evidence which it heard. From the record, it appears that the admission of this testimony satisfies the above requirements as well as the more general test adopted in O'Dowd, supra, at 508:

"[T]he evidence which has been presented to the jury cannot be adequately comprehended, analyzed and weighed by it without the aid of the special knowledge of the expert as to the meaning and significance of the facts in evidence.”

The witnesses were lay experts. Admission of their testimony was properly within the trial court’s discretion. People v Zimmerman, 385 Mich 417; 189 NW2d 259 (1971), and People v Boyd, 65 Mich App 11; 236 NW2d 744 (1975).

The evidence adduced by the plaintiff’s witnesses clearly indicated adequate grounds from which the jury could reason that the task assigned to the plaintiff and his fellow employees was, as distinguished from Funk, supra, p 110, "an unusual construction job”. The testimony indicated, and the jury may reasonably have inferred, that well-recognized safety measures did not provide reasonable safeguards against injury and that in spite of these measures employees engaged in the instant work continued to face an unusual degree of risk.

The trial court instructed the jury that,

"[I]nherently dangerous can mean work which probably would result in injury; and the risk or danger is recognizable in advance as requiring special precautions. * * * [F]urther, you must find that the special precautions were not taken and thus it amounts to a breach of the duties described. [An owner of property who contracts to have work done which is inherently dangerous has a duty to see that his independent contractor implements reasonable safety precautions on the job.]”

Therefore, even if the Funk decision is interpreted in a most restrictive manner as a "hasty, if sub silentio, retreat” from the strict liability discussed in McDonough, supra, the trial court’s mode of posing the problem to the jury — as essentially a question of negligence — presented the jury with the appropriate question for determination. See Yoakum v Practical Home Builders, Inc, 55 Mich App 384; 222 NW2d 251 (1974). The court’s charge to the jury "fairly presented the questions involved” and was not error. Mandjiak v Meijer’s Super Markets, Inc, 364 Mich 456, 462; 110 NW2d 802 (1961), and cases cited therein.

The defendant further alleged error in the trial court’s submission of an instruction on retained control to the jury. 2 Restatement Torts, 2d, § 414, p 387 states:

"One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.”

As Mr. Justice Levin suggested in Funk, supra, at 104: "The policy behind the law of torts is more than compensation of victims. It seeks also to encourage implementation of reasonable safeguards against risks of injury.” Therefore, economic realities and public policy require that in some cases de facto control by the owner be recognized. The contract entered into between Harris McBurney and defendant reserved to the defendant significant elements of control; there was testimony indicating that one of defendant’s employees was at the job site, perhaps in a supervisory capacity; the defendant drew up blueprints for the work to be done and furnished some of the equipment to be used. Taken together these factors strongly suggest an inference of control by the defendant. In addition, the nature of Harris Mc-Burney’s undertaking was particularly within the knowledge and expertise of defendant and it is highly likely that the defendant was better acquainted with all the aspects of Harris Mc-Burney’s assigned task than was the contractor. Whether the defendant did in fact have control was a close question which was properly submitted to the jury: if the jury rested the defendant’s accountability upon retained control this would not be reversible error under the circumstances.

Finally, the defendant faults the trial court’s brief instruction on the rescue doctrine. The court charged that:

"If you find that Plaintiff failed to use such care as I have just defined it, but you find that he was acting under what he saw in [sic] a reasonable effort to save the third person from harm, this may exclude him from being found contributorily negligent.”

Defendant argues that this instruction was not proper as the facts do not indicate that Strange was in "imminent and serious” peril as required by the language adopted by the Supreme Court in Parks v Starks, 342 Mich 443, 449-450; 70 NW2d 805 (1955). Furthermore, defendant relies upon the same language, and its reaffirmation in Hughes v Polk, 40 Mich App 634; 199 NW2d 224 (1972), to fault the court for its failure to instruct that the rescue attempt must not be "recklessly or rashly made”. It would seem that each of these elements of the rescue doctrine was inherent in the court’s requirement that the plaintiff’s actions be reasonable, and the Supreme Court has suggested as much in Brown v Ross, 345 Mich 54, 63; 75 NW2d 68 (1956). The ultimate question in this regard is whether the plaintiff’s behavior was reasonable, and whether it was properly submitted to the jury phrased in that manner. We hold that it was properly submitted.

We find no merit in the other errors alleged by the defendant.

Affirmed. Costs to plaintiff.


author: D. E. Holbrook, J.

text:
    PEOPLE v CLARK PEOPLE v MARTIN PEOPLE v YOUNG
    Docket Nos. 77-2311, 77-2187, 77-2399.
    Submitted May 2, 1978, at Lansing.
    Decided August 7, 1978.
    Willie B. Clark, Herlin Martin, and John H. Young were convicted of second-degree criminal sexual conduct and larceny from the person in Genesee Circuit Court, Philip C. Elliott, J. Defendants appeal raising numerous issues. Held:

    1. It was not error for a court to deny a motion to quash an information charging second-degree criminal sexual conduct for lack of evidence that force had been used where the testimony at the preliminary examination indicated that the defendant and two others were together, that one had a gun, and that the defendant unzipped the complainant’s pants and touched her pubic hair and where there is no dispute concerning the woman’s nonconsent.
    2. The denial of a bill of particulars in cases where the long form of information is employed is reviewable only for abuse of discretion.
    3. Defendants, generally, do not have a right to separate trials and joinder of defendants for trial rests in the sound discretion of the trial court; in moving for a separate trial, a defendant must clearly, affirmatively and fully show that substantial rights will be prejudiced by a joint trial.
    4. The decision regarding substitution of appointed counsel is entrusted to the trial court’s discretion; the substitution should be granted upon a showing of good cause if it would not unreasonably disrupt the judicial process.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 449.
    [2] 41 Am Jur 2d, Indictments and Informations §§ 159-161.
    Right of accused to bill of particulars. 5 ALR2d 444.
    [3] 75 Am Jur 2d, Trial §§ 17, 18, 20, 22.
    Right to severance where codefendant has incriminated himself. 54 ALR2d 830.
    [4] 21 Am Jur 2d, Criminal Law § 321.
    [5] 76 Am Jur 2d, Trial §§ 1072, 1073.
    [6] 16 Am Jur 2d, Constitutional Law § 552.
    [7] 17 Am Jur 2d, Continuance §§ 3, 4.

      5. The trial court did not err in denying a motion for mistrial where the prosecutor asked a police officer whether he had an opportunity to talk with the defendant, defense counsel objected, and the court did not allow the witness to answer or allow the prosecutor to ask any more questions; such a question is not a comment on the defendant’s right to remain silent.
    6. The second-degree criminal sexual conduct statute meets the requirements of the due process clause.
    7. A denial of a motion for a continuance is reversible error only if it constitutes an abuse of discretion.
    Affirmed.
    1. Criminal Law — Criminal Sexual Conduct — Second-Degree Criminal Sexual Conduct — Preliminary Examination — Evidence — Sufficiency of Evidence.
    It was not error for a court to deny a motion to quash an information charging second-degree criminal sexual conduct for lack of evidence that force had been used where the testimony at the preliminary examination indicated that the defendant and two others were together, that one had a gun, and that the defendant unzipped the complainant’s pants and touched her pubic hair and where there is no dispute concerning the woman’s nonconsent.
    2. Criminal Law — Bill of Particulars — Appeal and Error — Discretion of Court.
    The denial of a bill of particulars in cases where the long form of information is employed is reviewable only for abuse of discretion.
    3. Criminal Law — Separate Trials — Discretion of Court- — Burden of Proof.
    Defendants, generally, do not have a right to separate trials and joinder of defendants for trial rests in the sound discretion of the trial court; in moving for a separate trial, a defendant must clearly, affirmatively and fully show that substantial rights will be prejudiced by a joint trial.
    4. Criminal Law — Right to Counsel — Appointment of Counsel— Substitution of Appointed Counsel.
    The decision regarding substitution of appointed counsel is entrusted to the trial court’s discretion; the substitution should be granted upon a showing of good cause if it would not unreasonably disrupt the judicial process.
    5. Criminal Law — Right to Remain Silent — Prosecutorial Comment — Motion for Mistrial.
    A trial court did not err in denying a motion for mistrial where the prosecutor asked a police officer whether he had an opportunity to talk with the defendant, defense counsel objected, and the court did not allow the witness to answer or allow the prosecutor to ask any more questions; such a question is not a comment on the defendant’s right to remain silent.
    6. Constitutional Law — Statutes—Due Process — Vagueness— Criminal Sexual Conduct.
    A law fails to meet the requirements of the due process clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case; the second-degree criminal sexual conduct statute meets the requirements of the due process clause (MCL 750.520c; MSA 28.788[3]).
    7. Criminal Law — Motion for Continuance — Discretion of Court —Appeal and Error.
    A denial of a motion for a continuance is reversible error only if it constitutes an abuse of discretion.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Edwin R. Brown, Assistant Prosecuting Attorney, for the people.

      Green & Moon, for defendants Clark and Young on appeal.

      Frank L. Talkow, for defendant Martin on appeal.
    Before: J. H. Gillis, P. J., and D. E. Holbrook and N. J. Kaufman, JJ.
   D. E. Holbrook, J.

On March 7, 1977, Willie Clark, Herlin Martin and John Young were found guilty by a jury of criminal sexual conduct in the second degree, contrary to MCL 750.520c; MSA 28.788(3). They were also found guilty of larceny from the person, contrary to MCL 750.357; MSA 28.589. On May 3, 1977, each defendant was sentenced from 7-1/2 to 15 years in prison on the criminal sexual conduct conviction and from 6 to 10 years in prison on the larceny from the person conviction. Defendants appeal as of right.

The testimony at trial disclosed the following facts: At approximately 2:30 a.m. on October 13, 1976, three women were sitting in a car outside a lounge in Flint. A blue car containing three black males drove up to the women’s car and stopped. The men got out of their automobile and approached the car in which the women were sitting. One of the men was carrying a gun.

One of the women was pulled from the car and her breasts and genital areas were fondled. At approximately the same time, the other two men molested the two women in the car. One of the women testified that Willie Clark put his hands on her breasts and the other woman stated that Herlin Martin sat down in front of her, unzipped her pants and touched her pubic hair. The woman dragged from the car was able to escape and the three men fled in a blue car taking two of the women’s purses. The police were notified and shortly thereafter a blue car was stopped and the three defendants were arrested. The woman that had been dragged from the car subsequently identified John Young as her assailant and Willie Clark as one of the men.

Clark and Martin testified in their own behalf. They stated that they had driven a friend from Indiana to Flint and were on their way home when the police arrested them.

The defendants raised many issues on appeal. The first five issues were raised only by Herlin Martin and we will deal with them first.

I. Did the circuit court err in denying the motion to quash the information, which charged criminal sexual conduct, second degree, due to the alleged failure of the prosecutor to present evidence that force had been used?

This issue is without merit. The testimony at the preliminary examination was sufficient to bind Martin over to circuit court as both a principal and an aider and abettor under the criminal sexual conduct, second degree, statute. The testimony of the three complaining witnesses indicates that the three men were together and each chose one of the women. One of the men brandished a gun and there is no dispute of the women’s nonconsent. One of the women identified Martin as the person who unzipped her pants and touched her pubic hair. Thus, we find no error.

II. Did the circuit court err in denying defendant’s motion for a bill of particulars?

The mandatory bill of particulars does not apply in the instant case because the defendants were not charged using the short form informations. People v Jones, 75 Mich App 261, 268-269; 254 NW2d 863 (1977), lv den, 402 Mich 822 (1977). The denial of a bill of particulars in cases where the long form of information is employed is reviewable only for abuse of discretion. Jones, supra, p 269. We find no abuse of discretion.

III. Did the trial court err in denying defendant’s motion to sever his trial from his two co-defendants?

Generally, defendants do not have a right to separate trials in this state and joinder of defendants for trial normally rests within the sound discretion of the trial court. In moving for separate trials, defendants must clearly, affirmatively and fully show that substantial rights will be prejudiced by joint trials. People v Gunter, 76 Mich App 483, 488-489; 257 NW2d 133 (1977). Martin made no such showing. Since no prejudice to Martin’s substantial rights was shown, the competing interests of the benefit to the courts, public and administration of justice come into play and severance was properly denied. People v Walter Moore, 78 Mich App 294, 300; 259 NW2d 351 (1977).

IV. Did the trial court err in denying defendant’s motion to suppress the gun taken from the car at the time of his arrest?

The police had received word that an armed robbery had taken place and to be on the lookout for a small blue car containing three black males. The facts indicate that the police had probable cause to search the vehicle in which Martin was riding and that the search without a warrant was reasonable and justified. People v Tillman, 59 Mich App 768, 772; 229 NW2d 922 (1975), Chambers v Maroney, 399 US 42; 90 S Ct 1975; 26 L Ed 2d 419 (1970), reh den, 400 US 856; 91 S Ct 23; 27 L Ed 2d 94 (1970).

V. Did the trial court err in denying defendant’s motion for substitution of attorneys?

On the first day of trial, the court refused defendant’s request that he be allowed to substitute counsel. The decision regarding substitution of appointed counsel is entrusted to the trial court’s discretion; the substitution should be granted upon a showing of good cause if it would not unreasonably disrupt the judicial process. People v Eddington, 77 Mich App 177, 185-186; 258 NW2d 183 (1977). We hold that the trial judge did not abuse his discretion.

Martin also raised two issues in a supplemental brief. Both issues do not require discussion.

The following issue was only raised by Willie Clark:

VI. Did the trial court err in requiring defense counsel to show photographs of both lineups to the complaining witness instead of photographs of only one of the lineups?

The defense counsel failed to object when the court told him to show the witness photographs of both lineups, therefore, he has failed to preserve this issue for appellate review.

The next issue was raised only by Willie Clark and John Young:

VII. Did the trial court err by failing to declare a mistrial in regards to a question asked of a witness by the prosecutor?

The sole question asked by the prosecutor was whether the police officer had an opportunity to talk with John Young. The defense attorney objected and the court did not allow the witness to answer or the prosecutor to ask any more questions. We do not consider the challenged question to be a comment on Young’s exercise of his right to remain silent and do not find any error.

The following issues were raised by all three defendants:

VIII. Is the second-degree criminal sexual conduct statute unconstitutionally vague and over-broad?

A law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case. People v Posner, 79 Mich App 63, 71; 261 NW2d 209 (1977). We find that the second-degree criminal sexual conduct statute meets the requirements of the Due Process Clause and defendants’ issue is without merit.

IX. Did the trial court err in holding that there was an independent basis for the in-court identifications of the defendants by the complaining witnesses?

The defendants’ attorneys moved to suppress the identification testimony of the three complaining witnesses. The trial judge ruled as follows:

"My ruling is going to be that I am going to permit each victim to identify in court the assailant that put his hands upon her.
"And, in addition, Mrs. Boggs can identify Mr. Clark. But, Miss Bancroft can identify Mr. Clark. Miss Schwartz can identify Mr. Martin, and Mrs. Boggs can identify both Mr. Young and Mr. Clark.
"As to those identifications, I ñnd that there is clear and convincing evidence articulated by them at the preliminary examination, or at the suppression hearing, and that the in-court identification at trial and at the preliminary examination by those witnesses of those defendants had a basis independent of the photographic line-up.
"Mrs. Boggs picked Mr. Young out at the physical line-up, although the hair of all the persons in the lineup was covered by wool hats. She also said that Mr. Clark looked like the one on the passenger side. The hats probably explain why the other women did not pick out their assailant in the physical line-up.
"Mrs. Schwartz referred to the distinctive hair style of Mr. Martin as the reason why she identified him in court. And, Miss Bancroft said at the suppression hearing that she thought the hat at the line-up was the reason she did not identify Mr. Clark at the line-up.
"Neither photographic line-up was suggestive or conducive to misidentification. The numbers and dates played no part in the selection of any defendant by any witness. The large number of mug shots used and the characteristics of the other persons in the other photos made the photographic line-ups very fair. Nothing was done or said by anyone to prompt or influence the identifications in any way.
"The fact that each victim was able to pick out her assailant from more than thirty-five different mug shots strengthens the reliability of the in-court identification.
"Mrs. Boggs’ identification of Mr. Clark is similarly strengthened. But, because there was no counsel at the first photographic line-up, the Prosecutor must be barred from direct testimonial evidence relating to the photographic line-up. The photographic line-ups are not to be mentioned by the witnesses except, of course, in answer to a question by defense counsel that would call for such a response.
"Although there is evidence that these victims are also able to identify one or both of the other men in court, and that such identification would also have an independent basis of the — or basis independent of the photographic line-ups, that evidence is not as convincing as is the evidence that each victim is clearly able to independently identify the man who handled her and who she had the best look at, and the evidence concerning Mr. Clark’s in-court identification by Mrs. Boggs.
"And, besides, the limited suppression ordered here may have a deterrent effect on the police and prosecution desired by the Supreme Court, because the photographic line-up was improper, although I don’t think it was a deliberate violation of their rights to counsel [sic], ” (Emphasis supplied.)

In People v Kachar, 400 Mich 78, 95-97; 252 NW2d 807 (1977), the Michigan Supreme Court identified factors to be used in determining whether a witness’s in-court identification is fruit of an improper pretrial identification. A review of the factors in Kachar reveals the absence of error in the instant case.

X. Did the trial court err when it refused to grant the pretrial motion to adjourn the proceedings until a transcript of the hearing on the pretrial motions had been transcribed?

A denial of a motion for a continuance is reversible error only if it constitutes an abuse of discretion. People v Riley, 33 Mich App 721, 728; 190 NW2d 569 (1971), lv den, 386 Mich 753 (1977). In the instant case, we find no abuse of discretion.

XI. Did the trial court commit reversible error by allowing the testimony of a witness concerning other criminal conduct allegedly involving the defendants?

The prior offense was a purse snatching which took place about five hours prior to the charged offense and had little similarity to the offense of criminal sexual conduct, second degree. We hold that the admission of evidence about the earlier purse snatching was error. However, the error was harmless. People v Swan, 56 Mich App 22, 31; 223 NW2d 346 (1974). The proof was so overwhelming, aside from the taint of the error, that all reasonable jurors would find guilt beyond a reasonable doubt. Swan, supra, p 33.

Affirmed.


author: Per Curiam.

text:
    PEOPLE v ROWE
    Docket No. 77-268.
    Submitted December 13, 1977, at Detroit.
    Decided May 25, 1978.
    James D. Rowe was convicted, on his plea of guilty, of possession of the controlled substance Diazepam, Jackson Circuit Court, James G. Fleming, J. The defendant appeals, alleging (1) that he did not receive proper notice of the addition of Diazepam to Schedule 4 of the Controlled Substances Act, (2) that the form of notice provided by the Administrative Procedures Act is not sufficient to apprise defendant of when penal sanctions begin to operate in regard to the added provision, and (3) that the defendant’s guilty plea was coerced when he was charged with an offense for which he could not have been convicted. Held:

    1. The defendant was not denied proper constitutional notice since the addition of Diazepam to Schedule 4 did not become effective until 15 days after the date of filing with the Secretary of State, as required by statute.
    2. The defendant was not convicted on the basis of a charge on which he could not have been convicted because that charge was later dismissed pursuant to the plea bargain reached.
    Affirmed.
    1. Drugs and Narcotics — Controlled Substances — Diazepam—Notice — Statutes.
    A defendant, convicted of possession of the controlled substance Diazepam, was not denied proper constitutional notice of the addition of Diazepam to Schedule 4 of the Controlled Substances Act where the addition of Diazepam to Schedule 4 did not become effective until 15 days after the date of filing with the Secretary of State, as required by statute (MCL 24.247; MSA 3.560 [147]).
    2. Criminal Law — Basis of Conviction — Pleas of Guilty — Charge on Which Defendant Could Not be Convicted — Plea Bargain.
    A defendant who pled guilty to another charge was not convicted on the basis of a charge for which he could not have been convicted, even though he was originally charged and bound over on such a count for which he could not have been convicted, where that charge was later dismissed pursuant to a plea bargain reached.

      References for Points in Headnotes
    [1] 25 Am Jur 2d, Drugs, Narcotics and Poisons §§ 16, 17.
    [2] 21 Am Jur 2d, Criminal Law § 484 et seq.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Assistant Prosecuting Attorney, for the people.

      Daniel J. Wright, Assistant State Appellate Defender, for defendant on appeal.
    Before: V. J. Brennan, P. J., and D. F. Walsh and H. L. Heading, JJ.

       Detroit Recorder’s Court judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

On November 3, 1976, defendant James Dale Rowe pled guilty in Jackson County Circuit Court to possession of a controlled substance, contrary to MCL 335.341(4); MSA 18.1070(41)(4). Defendant was originally charged both with possession of a controlled substance, Diazepam, and with bringing that substance into prison without a permit, contrary to MCL 800.281; MSA 28.1621. Pursuant to plea bargaining, the prosecution agreed to dismiss the count concerning MCL 800.281; MSA 28.1621, to abandon possible prosecution of defendant as an habitual criminal, MCL 769.10 et seq.; MSA 28.1082 et seq., and to refrain from any objection in sentencing defendant concurrently rather than consecutively on the charge admitted. The trial court accepted defendant’s plea for the possession count on December 8, 1976, under these conditions and sentenced defendant to a prison term of one to two years to be served concurrently with a sentence from a prior conviction. Defendant appeals as of right under GCR 1963, 806.1.

Defendant contends (1) that he did not receive proper notice of the addition of Diazepam to Schedule 4 of the Controlled Substances Act because such notice was not published in the Supplement to the Michigan Administrative Code before defendant was charged, (2) that the form of notice under MCL 24.261; MSA 3.560(161), is not sufficient to apprise defendant of when penal sanctions begin to operate in regard to the added provision, and (3) that defendant’s guilty plea was coerced when he was charged with an offense for which he could not have been convicted.

Upon review, we find the trial court did not commit error in this case. Defendant was not denied proper constitutional notice where the addition of Diazepam to Schedule 4 did not become effective until 15 days after the date of filing with the Secretary of State, as required by MCL 24.247; MSA 3.560(147). Defendant’s attempted analogy to the Federal Administrative Procedures Act is not persuasive. See 5 USC 551 et seq. The provisions of that act requiring Federal agencies to publish promulgated rules within 30 days in the Federal Register before they become operative does not establish a constitutionally required standard.

Because we find notice pursuant to MCL 24.247; MSA 3.560(147) sufficient to apprise defendant of the addition of Diazepam to Schedule IV, his second claim of error is without merit.

Finally, though defendant was originally charged and bound over on a count for which he could not have been convicted, that charge was later dismissed pursuant to the plea bargain reached. See People v Stanton, 400 Mich 192, 196; 253 NW2d 650 (1977). Defendant was not convicted on the basis of this charge. We find no basis to reverse defendant’s plea because the charge was brought or because defendant was bound over on that charge.

We sustain the guilty plea.

Affirmed.


text:
    PEOPLE v MONROE
    Docket No. 30125.
    Submitted April 21, 1978, at Detroit.
    Decided June 21, 1978.
    Norman E. Monroe was convicted of armed robbery in St. Clair Circuit Court, Halford I. Streeter, J. Defendant appeals. Held:

    1. The trial court committed reversible error by instructing the jury that they could discuss the case among themselves during the course of the trial.
    2. Testimony concerning the circumstances of a defendant’s arrest on another charge were irrelevant and potentially prejudicial and should not have been admitted.
    3. A witness who allegedly had seen the perpetrator fleeing the scene of the crime and who testified at a Robinson hearing that he could have identified the perpetrator of an armed robbery a month after the incident, but that the passing of two years precluded present identification is a res gestae witness who should have been indorsed and produced by the prosecution.
    Reversed.
    1. Trial — Instructions to Jury — Discussion Among Jurors — Error.
    An instruction that the jury is permitted to discuss the case among themselves during the course of a criminal trial is reversible error.
    2. Criminal Law — Evidence—Searches and Seizures — Other Bad Acts — Admissibility.
    A police officer’s testimony concerning the fact of an arrest on another charge and search and seizure of certain evidence linking defendant with the crime charged is admissible to establish a foundation for the evidence seized; however the officer’s testimony relating the details of the arrest which depicts defendant as a violent and assaultive person is irrelevant, potentially prejudicial and should not be admitted.

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial § 623.
    [2] 29 Am Jur 2d, Evidence §§ 252, 253.
    [3] 81 Am Jur 2d, Witnesses § 324.

      3. Witnesses — Criminal Law — Res Gestae — Production.
    A witness who allegedly had seen the perpetrator fleeing the scene of the crime and who testified at a Robinson hearing that he could have identified the perpetrator of an armed robbery a month after the incident but that the passing of two years precluded present identification is a res gestae witness who should have been indorsed and produced by the prosecution.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people.

      Marshall S. Redman, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. F. Walsh, P. J., and D. E. Holbrook and R. M. Maher, JJ.
   Per Curiam.

Defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797, and sentenced to 10 to 40 years imprisonment. He appeals as of right, raising three issues:

(1) Did the trial court commit reversible error by instructing the jury at the beginning of the trial that they were not to discuss the case with anyone "except one another”?

(2) Did the trial court err by failing to exclude testimony concerning the circumstances of the defendant’s arrest on another charge?

(3) Did the prosecutor exercise due diligence in attempting to discover, endorse and produce a res gestae witness?

Immediately after the jury was sworn, the trial court gave the following instruction:

"THE COURT; Ladies and gentlemen who have been selected to hear this case, you have already been advised pretty much as to what is involved. Throughout the case do not discuss it with anybody except one another. Don’t allow anybody to talk to you about it. If anybody endeavors to talk to you about it, advise me. Keep it off your mind until you’re here together, because you’re going to decide this together. Neither the lawyers nor myself will talk with you throughout the trial because we know we shouldn’t until your verdict is received.” (Emphasis added.)

During the trial no cautionary instructions were given advising the jury not to discuss the case until beginning their deliberations. Defendant argues that the trial court invited the jury to discuss the case among themselves without the benefit of counsels’ arguments and the guidance of the trial court’s instructions on the law, thereby depriving him of a fair and impartial jury. We agree and reverse his conviction.

In People v Hunter, 370 Mich 262; 121 NW2d 442 (1963), a unanimous Supreme Court forcefully condemned an instruction permitting the jury to discuss the case among themselves during the course of the trial. A panel of this Court recently held such an instruction reversible error. People v Blondia, 69 Mich App 554; 245 NW2d 130 (1976). Precedent and sound judicial policy mandate the same result in the case before us.

We discuss the remaining allegations of error insofar as they are likely to recur on retrial.

During the prosecution’s presentation a police officer testified that he arrested the defendant on another charge, at which time he discovered certain evidence linking the defendant to the armed robbery. In the course of that testimony the officer related the details of the arrest which depicted the defendant as a violent and assaultive person.

All concede that testimony concerning the fact of the arrest and search incident thereto were necessary to establish a foundation for the introduction of the evidence seized. The testimony describing the details of arrest was irrelevant and potentially prejudicial and should not have been admitted. See, People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978).

Pursuant to an order of this Court a Robinson hearing was held concerning three witnesses who allegedly had seen the perpetrator fleeing the scene of the crime. At the hearing two of the witnesses testified that they could not have identified the man whom they saw. However, Mr. Ernerich, the third witness, testified that he could have identified the man a month after the incident, but that the passing of two years precluded any present identification.

Contrary to the trial court’s ruling at the Robinson hearing, Mr. Emerich was a res gestae witness. People v Castelli, 370 Mich 147; 121 NW2d 438 (1963), People v Harrison, 44 Mich App 578; 205 NW2d 900 (1973). On remand, the trial court shall hold an evidentiary hearing to determine whether the prosecutor exercised due diligence in attempting to discover the witness. If it is determined that the prosecution failed to employ due diligence to locate the witness in time to preserve his evidence, the Court shall inform the jury as to the nature of the lost testimony and instruct them that they may infer that his testimony would have been favorable to the defendant. See, People v Gordon, 60 Mich App 412; 231 NW2d 409 (1975), People v Barker, 18 Mich App 544; 171 NW2d 574 (1969).

Reversed.

       The most fundamental prejudice arising from premature discussion by the jury is illustrated by the following passage from People v Hunter:

      "Under the court’s admonition the jurors were warranted as a result of discussion among themselves, either in small groups or large ones, to form opinions so long as such opinions were not so absolutely fixed that they would 'prevent you from changing after you had heard all of the evidence in the case.’ Such an opinion of necessity could result from a discussion of only a part of the evidence, the evidence not having all been submitted. Such an opinion once formed could only be removed, if at all, by evidence. This in effect shifted the burden of proof and placed upon the defendants the burden of changing by evidence the opinion thus formed. A juror having in discussion not only formed but expressed his view as to the guilt or innocence of the defendant, his inclination thereafter would be to give special attention to such testimony as to his mind strengthened, confirmed or vindicated the views which he had already expressed to his fellow jurors, whereas, had there been no discussion and no expression of tentative opinion, he would not be confronted with embarrassment before his fellow jurors should he change the tentative opinion which he might entertain from hearing evidence.” People v Hunter, 370 Mich 262, 271; 121 NW2d 442 (1963), quoting Winebrenner v United States, 147 F2d 322 (CA 8, 1945).

       In People v Blondia, 69 Mich App 554; 245 NW2d 130 (1976), the appellate Court assumed that having been invited to do so the jurors did in fact discuss testimony during the course of the trial. Where, as in the instant case, the jurors had an opportunity to discuss the case during trial, we consider the assumption sound.

       The trial court’s ruling that Mr. Emerich was not a res gestae witness because he did not have sufficient opportunity to observe the perpetrator was directly contrary to Mr. Emerich’s testimony. As such, it was necessarily premised upon the court’s disbelief of the witness’s testimony. However, the production of a res gestae witness is not excused because of the trial court’s view of his credibility. See, People v Blazenzitz, 212 Mich 675; 180 NW 370 (1920); cf. People v Castelli, 370 Mich 147; 121 NW2d 438 (1963).

       The trial court made no findings concerning due diligence at the Robinson hearing.