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

text:
    MICHIGAN NATIONAL BANK, LANSING v CITY OF LANSING
    Docket Nos. 44162, 44163, 44164, 44165, 44166, 44167.
    Submitted February 14, 1980, at Lansing.
    Decided April 2, 1980.
    Leave to appeal applied for.
    Michigan National Bank, Lansing, petitioned the Tax Tribunal for review of six real property assessments made by the City of Lansing on certain of Michigan National’s property. The issue is whether bank vault doors, night depository equipment, drive-up teller window equipment and remote transaction systems are real property, subject to taxation, or are personal property and exempt from taxation. The Tax Tribunal found that the items were fixtures which were subject to taxation as real property. Michigan National appeals. Held:

    1. The Tax Tribunal properly found the items in question to be fixtures. They are all physically annexed to the realty in such a manner as to establish an intent to permanently affix them to the realty. The items are therefore real property for purposes of taxation.
    2. Michigan National alleges that the items are trade fixtures and are thus personalty. However, the trade fixture doctrine applies only to a lessor-lessee situation, and therefore does not apply in five of the six cases where Michigan National owns the realty.
    3. The trade fixture doctrine also does not apply in the sixth case, where Michigan National leases the property, because the doctrine applies only to lessors and lessees. As to a third party, i.e., the Tax Tribunal, trade fixtures are properly considered to be a part of the realty.
    Affirmed.
    1. Appeal — Tax Tribunal — Scope of Review.
    The Court of Appeals, in reviewing a decision of the Tax Tribunal, is bound by the factual determinations of the Tax Tribunal and, where no fraud is alleged, the review is limited to the question of whether the Tax Tribunal committed an error of law or adopted a wrong principle.

      References for Points in Headnotes
    [1] 2 Am Jur 2d, Administrative Law §§ 185, 618, 619, 641, 643, 653, 657, 675.
    [2] 71 Am Jur 2d, State and Local Taxation § 201 et seq.

    [3] 71 Am Jur 2d, State and Local Taxation §§ 207, 440.
    [4, 5] 71 Am Jur 2d, State and Local Taxation § 207.

      2. Taxation — Real Property — Statutes.
    Real property, for purposes of taxation, includes all lands within the state and all buildings and fixtures thereon (MCL 211.2; MSA 7.2).
    3. Fixtures — Real Property — Taxation.
    The test for determining whether or not an item is a fixture, and therefore real property for taxation purposes, includes three factors: (1) annexation to the realty, either actual or constructive; (2) adaptation or application to the use or purpose of that part of the realty to which it is connected or appropriated; and (3) intention to make the article a permanent accession to the realty.
    4. Fixtures — Trade Fixtures — Right of Removal.
    A trade fixture is a fixture which has been annexed to leased realty by a lessee for the purpose of enabling him to engage in a business; a trade fixture may be removed by the lessee and is characterized as personalty with respect to the lessee’s right of removal.
    5. Fixtures — Trade Fixtures — Real Property — Personal Property.
    The trade fixture doc.trine applies only in lessor-lessee situations; although a trade fixture may be personal property as between a lessor and lessee, as to third parties it is properly considered to be a part of the realty.

      Kramer, Mellen, Wagner & Ishbia, P.C., and Leo Goldstein, P.C., for petitioner.

      Stephen R. Sawyer, for respondent.
    Before: J. H. Gillis, P.J., and Allen and M. J. Kelly, JJ.
   J. H. Gillis, P.J.

This is an appeal from a Michigan Tax Tribunal order affirming six real property assessments made by the respondent on certain items of petitioner’s property. Five of the assessments concern properties owned by the petitioner and one of the assessments involves property leased by the petitioner. The matter in dispute is whether certain items of bank equipment, specifically, bank vault doors, night depository equipment, drive-up teller window equipment and remote transaction systems, are subject to assessment and taxation as real property or whether they are items of personal property which are exempt from taxation under MCL 211.9(m); MSA 7.9(m).

In an opinion dated February 14, 1979, the Tax Tribunal affirmed the assessments holding that each of the items was subject to assessment and taxation as real property. The petitioner appeals from that determination as of right. See CAF Investment Co v Saginaw Twp, 79 Mich App 559; 262 NW2d 863 (1977), MCL 205.753; MSA 7.650(53).

This Court’s authority to review a decision of the Tax Tribunal is very limited. On appeal, we are bound by the factual determinations of the Tribunal. Ironwood v Gogebic County Board of Comm’rs, 84 Mich App 464, 469; 269 NW2d 642 (1978). Where, as here, no fraud is alleged, our review is limited to the question of whether the Tribunal committed an error of law of adopted a wrong principle. Consolidated Aluminum Corp, Inc v Richmond Twp, 88 Mich App 229, 231; 276 NW2d 566 (1979), Const 1963, art 6, § 28.

For the purpose of taxation, real property includes "all lands within the state, and all buildings and fixtures thereon”. MCL 211.2; MSA 7.2. Petitioner contends that the Tribunal erred as a matter of law in concluding that the items were fixtures. We disagree.

The test to be applied in order to ascertain whether or not an item is a fixture emphasizes three factors:

(1) Annexation to the realty, either actual or constructive;

(2) Adaptation or application to the use or purpose of that part of the realty to which it is connected or appropriated; and

(3) Intention to make the article a permanent accession to the realty. Morris v Alexander, 208 Mich 387; 175 NW 264 (1919), Peninsular Stove Co v Young, 247 Mich 580; 226 NW 225 (1929). The intention which controls is that manifested by the objective, visible facts. The permanence required is not equated with perpetuity. It is sufficient if the item is intended to remain where affixed until worn out, until the purpose to which the realty is devoted is accomplished or until the item is superseded by another item more suitable for the purpose. See San Diego Trust & Savings Bank v San Diego County, 16 Cal 2d 142; 105 P2d 94 (1940).

Applying these factors to the present case necessitates the conclusion that the Tribunal properly found the items in question to be fixtures. All four items are physically annexed to the realty. The night depository equipment, drive-up window equipment and the vault doors are all cemented into place. Once installed, they are integrated with and become part of the wall in which they are mounted. The remote transaction units are also physically integrated with the land and the buildings. Such a unit consists of a roof-type canopy supported by pillars which extends from the building wall or roof over the customer unit. The customer unit is mounted with steel bolts to a specially constructed concrete island. A pneumatic tube system runs either up into the canopy or down into the ground and then into the building.

Furthermore, each item is adapted to the use of the realty. In fact, not only is the present use of these buildings dependent on the presence of these items, none of these items can be used unless they are affixed to a building or land.

Taken together, these factors establish the petitioner’s intent to permanently affix these items to the realty. The Tribunal did not err in classifying them as fixtures. As fixtures they are real property under MCL 211.2; MSA 7.2.

The petitioner further contends that, even if these items are found to be fixtures, they are trade fixtures and as such are classified as personal property which is exempt from taxation.

A trade fixture is merely a fixture which has been annexed to leased realty by a lessee for the purpose of enabling him to engage in a business. The trade fixture doctrine permits the lessee, upon the termination of the lease, to remove such a fixture from the lessor’s real property. With respect to the lessee’s right of removal, a trade fixture is characterized as personalty. See Cameron v Oakland County Gas & Oil Co, 277 Mich 442; 269 NW 227 (1936). The doctrine by its terms applies only in lessor-lessee situations. Accordingly, the petitioner cannot contend, with respect to the five involved properties which are owned, that the doctrine operates to exempt the items in question from taxation as personalty.

One of the involved properties, however, is leased by the petitioner. With respect to that property, the question remains whether the trade fixture doctrine operates to render the disputed items which are annexed thereto exempt from taxation. The answer is that it does not.

The rule regarding trade fixtures which arose out of commercial necessity for the limited purpose of protecting tenants in the ownership of certain kinds of property has no application between other parties in other relationships. Although as between lessor and lessee trade fixtures might be personal property, as to third parties they are properly considered as a part of the realty. In re Widening of Gratiot Ave, East Grand Boulevard to Townsend, 294 Mich 569, 577; 293 NW 755 (1940), Trabue Pittman Corp v Los Angeles County, 29 Cal 2d 385; 175 P2d 512 (1946), 2 Tiffany, Real Property (3d ed), §620, pp 605-606. Thus, for the purpose of taxation, trade fixtures are properly classified as real property. The petitioner’s contention that the Tribunal erred in not applying the trade fixture doctrine to the instant case is, accordingly, without merit.

In summary, the Tax Tribunal neither made an error of law nor applied a wrong principle in concluding that the items in question were properly taxed as realty. Its decision is therefore affirmed.


source: Caselaw Access Project

author: D. C. Riley, J.

license: Public Domain

text:
    PEOPLE v LeFLORE
    Docket Nos. 43655, 44467.
    Submitted February 14, 1980, at Detroit.
    Decided April 2, 1980.
    Leave to appeal applied for.
    Frank LeFlore and Joseph LeFlore were convicted of unarmed robbery and Joseph was also convicted of assault with intent to commit murder, Recorder’s Court of Detroit, Robert P. VanWiemeersch, J. The complaining witness, Warner Scott, testified that she and her sister-in-law were verbally abused by the defendants both on the street and in a store. At the store she purchased groceries and put some money into her brassiere. After the women exited from the store they were attacked by the LeFlores, her blouse was torn open and the money fell out. One of the defendants picked up the fallen money and the struggle continued. The encounter ended with Joseph attempting to run over complainant with his car. Defendants appeal. The appeals were consolidated by order of the Court of Appeals. On appeal, defendants allege that insufficient evidence was presented to and recognized by the trial court, acting without a jury, to establish an unarmed robbery. Joseph LeFlore also contends that it was error not to produce an alleged res gestae witness at trial. Held:

    1. Defendants argue that the evidence shows no more than larceny from the person since the taking of complainant’s money could only have occurred as an afterthought during the scuffle. Armed and unarmed robbery statutes require that a forceful act must be used to accomplish a taking and unless there is a purposeful relationship between the forceful act and the taking the criminal episode is merely two isolated crimes, larceny and perhaps assault and battery. From the record on appeal, it is impossible to determine if adequate evidence was presented to support the unarmed robbery convictions. Therefore, it is necessary to remand to the trial court for more specific findings of fact on whether defendants intended to force complainant to part with her money by assaulting her prior to or at the time of taking, or whether, following the taking, force was purposefully inflicted to insure complainant’s loss of possession. In either case, unarmed robbery would be established. If, however, the violence was perpetrated upon complainant with no larcenous intent and the intent to steal only occurred at the time of taking, only larceny from the person would be proved.

      References for Points in Headnotes
    [1, 4] 67 Am Jur 2d, Robbery § 2.
    [2] 67 Am Jur 2d, Robbery §§ 11, 26.
    [3, 4] 67 Am Jur 2d, Robbery §§ 20, 26.
    [5] 81 Am Jur 2d, Witnesses §§ 75, 76.
    [6] 41 Am Jur 2d, Indictments and Information § 60.

      2. A defendant’s failure to move for a hearing during trial or for a new trial will generally preclude appellate review of the issue of nonproduction of a res gestae witness, unless, absent review, manifest injustice would result. The trial transcript reveals that a meat clerk was present at the time of the altercation in the store. His unbiased testimony could have an illuminative effect on disputed trial testimony. Therefore, remand is necessary because manifest injustice could result if this witness is not heard.
    3. Joseph LeFlore’s claim of ineffective assistance of counsel is without merit.
    Remanded for further proceedings.
    1. Robbery — Unarmed Robbery — Force — Larceny From the Person.
    The element of force distinguishes the offense of unarmed robhery from that of larceny from the person.
    2. Robbery — Assault — Taking — Intent — Inferences.
    The general rule is that an assault must be concomitant with the taking in order to support a charge of robbery; the intent to rob may readily be inferred where the assault and taking are contemporaneous.
    3. Robbery — Armed Robbery — Unarmed Robbery — Forceful Act — Taking — Larceny — Assault and Battery.
    Armed and unarmed robbery statutes are clear that a forceful act must be used to accomplish a taking; unless there is a purposeful relationship between the forceful act and the taking the criminal episode is merely two isolated crimes, larceny and perhaps assault and battery.
    4. Robbery — Larceny — Forceful Act — Taking — Intent — Continuity of Intent.
    Larcenous transactions should be reviewed in their totality to determine if there is a continuity of intent between a forceful act and a taking; if there is a continuity of intent, a robbery conviction is possible, and if there is not a continuity of intent, there may merely be a larceny from the person.
    5. Witnesses — Criminal Law — Res Gestae Witnesses — Definition.
    A res gestae witness is one who was an eyewitness to some event in the continuum of a criminal transaction and whose testimony will aid in developing a full disclosure of the facts surrounding the alleged commission of the charged offense.
    6. Witnesses — Criminal Law — Res Gestae Witnesses — Indorsement and Production — Preserving Issue — Manifest Injustice — Appeal.
    A prosecutor has an affirmative duty to indorse all res gestae witnesses on the information and to produce them at trial, and if he does not comply, it is a defendant’s responsibility to move for a hearing during trial or for a new trial prior to seeking appellate review; failure to move for a hearing or a new trial will normally preclude consideration of this issue on appeal, unless, absent review, manifest injustice would result.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy Scallen, Assistant Prosecuting Attorney, for the people.

      Carl Ziemba, for Frank LeFlore.

      Culpepper, Slomski & Sorise, for Joseph LeFlore.
    Before: Bronson, P.J., and Beasley and D. C. Riley, JJ.
   D. C. Riley, J.

In these consolidated appeals, defendants Frank LeFlore and Joseph LeFlore were charged with unarmed robbery, MCL 750.530; MSA 28.798. Joseph LeFlore was also charged with assault with intent to commit murder, MCL 750.83; MSA 28.278. Following a bench trial, defendants were found guilty as charged. Defendant Frank LeFlore was sentenced to 7 to 15 years imprisonment. Defendant Joseph LeFlore was sentenced to 10 to 15 years for unarmed robbery and to life imprisonment for the assault. Both now appeal as of right.

Complainant testified that she and her sister-in-law were verbally abused by the defendants, both on the street and in a store. After buying some groceries at the store she put her money into her brassiere and began walking home with her sister-in-law. According to complainant and her sister-in-law, the two men then began kicking and hitting complainant and then tore open her blouse so that her money fell out. One of the two defendants picked up the fallen money and the struggle continued. The encounter ended with Joseph LeFlore attempting to run over complainant with his car, resulting in injuries to complainant’s arm. Defendant Frank LeFlore testified and denied this version of the incident.

Both defendants assert that insufficient evidence was presented to and recognized by the trial court to establish the unarmed robbery. They argue that the evidence shows no more than larceny from the person, MCL 750.357; MSA 28.589, since the taking of complainant’s money could only have occurred as an afterthought during the scuffle.

The statute of unarmed robbery provides:

"Any person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another, or in his presence, any money or other property which may be the subject of larceny, such robber not being armed with a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison not more than fifteen (15) years.” MCL 750.530; MSA 28.798.

It is the element of force that distinguishes this offense from that of larceny from the person. People v Chamblis, 395 Mich 408, 424; 236 NW2d 473 (1975), People v Tolliver, 46 Mich App 34, 37; 207 NW2d 458 (1973). Defendants maintain that the crimes are further distinguished by the requirement that in robbery, larcenous intent must exist at the time of the forceful act, rather than merely at the time of the taking.

There is support for defendant’s position in Chamblis, supra. There defendant was charged with armed robbery, MCL 750.529; MSA 28.797, based on his cohort’s knocking the complainant unconscious and then taking his money. He was found guilty of larceny from the person, a conviction upheld by the Supreme Court which said:

"In light of the evidence adduced at trial, the jury could have believed defendant’s story that he was reluctant to return to the house and intended to rob no one, and that the initial pistol crack across complainant’s head by the brother was in retribution for the earlier cane beating defendant had suffered. They could have believed the complainant became unconscious and the men only then decided to take his money. If the money were taken from the complainant under those circumstances, the offense would be larceny from the person.” (Emphasis added.) Chamblis, supra at 425.

Normally, the assault and the taking are concomitant, so that intent may readily be inferred. People v Beebe, 70 Mich App 154, 158; 245 NW2d 547 (1976), People v Herbert Sanders, 28 Mich App 274, 276; 184 NW2d 269 (1970). However, the violent act may only follow the taking, or perhaps even extensively precede it. Our Court has recognized that the assault may follow the taking if that force is used to completely sever the victim’s possession. Beebe, supra. Implicit in this recognition is the requirement that the defendant intend at the time of the assault to preserve his possession of the stolen goods; his larcenous intent must be constant. The larceny transaction should be viewed as a whole to determine the defendant’s intent. Sanders, supra.

We believe that this "transaction approach” is appropriate for analyzing any larceny, particularly robbery, where the forceful act may greatly precurse or lag behind the taking. Both the armed and unarmed robbery statutes are clear that the forceful act must be used to accomplish the taking. See MCL 750.529; MSA 28.797, MCL 750.530; MSA 28.798, People v Gould, 15 Mich App 83; 166 NW2d 530 (1968). Unless there is a purposeful relationship between these two elements, the criminal episode is merely two isolated crimes of larceny and perhaps assault and battery. LaFave & Scott, Criminal Law, § 94, pp 701-702. See Chamblis, supra at 425. The entire larcenous transaction should be reviewed to determine if there is a continuity of intent between the forceful act and the taking (or vice versa). If so, a robbery conviction is possible. See People v Mitchell, 32 Mich App 155; 188 NW2d 163 (1971). If not, there may merely be larceny from the person. Chamblis, supra.

In the instant case, there are insufficient factual findings as to the defendants’ intent, so it is impossible to determine if adequate evidence was presented to support the unarmed robbery convictions. It is necessary then to remand to the trial court for more specific findings of fact on whether defendants intended to force complainant to part with her money by assaulting her prior to or at the time of taking, or whether, following the taking, force was purposefully inflicted to ensure complainant’s loss of possession. In either case, unarmed robbery would be established. If however, the violence was perpetrated upon complainant with no larcenous intent and the intent to steal only occurred at the time of the taking, only larceny from the person and assault would be proven. People v Jackson, 390 Mich 621, 627; 212 NW2d 918 (1973).

Defendant Joseph LeFlore further contends that it was error not to produce an alleged res gestae witness at trial. The missing witness was a meat clerk in the store in which the alleged verbal confrontation took place, which later erupted into the on-the-street assault.

A res gestae witness is one "who was an eyewitness to some event in the continuum of a criminal transaction and whose testimony will aid in developing a full disclosure of the facts surrounding the alleged commission of the charged offense”. People v Hadley, 67 Mich App 688, 690; 242 NW2d 32 (1976). It is well established that the prosecution has an affirmative duty to endorse all such witnesses on the information and to produce them at trial. MCL 767.40; MSA 28.980, People v Abdo, 81 Mich App 635, 642-643; 265 NW2d 779 (1978), People v Hammack, 63 Mich App 87; 234 NW2d 415 (1975). However, if the prosecutor does not comply, it is the defendant’s responsibility to move for a hearing during trial, or for a new trial, prior to seeking appellate review. People v Robinson, 390 Mich 629; 213 NW2d 106 (1973). The failure to move for either will normally foreclose this issue on appeal, People v Pearson, 404 Mich 698, 722; 273 NW2d 856 (1979), unless, absent review, manifest injustice will result. People v Phillips, 75 Mich App 690, 694; 255 NW2d 733 (1977).

In the instant case, defendant never moved for a hearing on the issue of the clerk’s endorsement or production during or following trial. However, we believe this should not bar review since manifest injustice will result if this issue is not resolved. The lower court transcript reveals that the meat clerk was present at the time the altercation in the store occurred. Since there is a vast discrepancy between defendant’s version of what happened and the account given by complainant and her sister-in-law, the unbiased testimony of the meat clerk witness might have had an illuminative effect. On remand, the trial court should inquire into this issue according to the dictates of Pearson, supra, determining if the clerk was a res gestae witness, whether the prosecution adequately attempted to produce him and if defendant was prejudiced by the prosecution’s failure to produce the witness at trial. Pearson, supra at 722-723.

Defendant Joseph LeFlore’s final contention regarding ineffective assistance of counsel is without merit. People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

Remanded for proceedings consistent with this opinion.

       Force, violence and assault will be used interchangeably in this opinion (since all are acceptable under the unarmed robbery statute) to refer to the distinguishing element of robbery.


author: P. C. Elliott, J.

text:
    PEOPLE v BROWN
    Docket No. 44574.
    Submitted December 13, 1979, at Detroit.
    Decided April 2, 1980.
    John Brown was convicted, on his plea of guilty, of armed robbery of money from an assistant store manager, Mr. Cubba, Macomb Circuit Court, Howard R. Carroll, J. As a result of plea bargaining four other counts, including armed robbery of a purse from an employee, Cathy Niver, were dismissed. Court rules governing plea acceptance were fully complied with except as to the factual basis of the plea. In his answers to the court’s questions, defendant said that he and a woman entered the store by the front door while two men came through the back door and pronounced a stickup and defendant went behind the counter and took Cathy Niver’s purse and left. Defendant admitted that the other men had guns and that when he entered the store he did so with the intent to steal and rob somebody of some money. Defendant filed a motion to withdraw his plea. The prosecutor conceded that defendant’s narration was insufficient and asked for an opportunity to present evidence to show that Mr. Cubba was robbed. At a hearing on the motion, Mr. Cubba was allowed to testify. Defendant did not testify. James C. Daner, J., ruled that Mr. Cubba’s testimony, considered with defendant’s statements at the time of his plea, showed that Mr. Cubba had been robbed by armed men and that defendant was a knowing participant in the robbery. He observed that since defendant declined to say anything, there was no contrary evidence. The court denied a request of defense counsel for a delay to interview and possibly call the other robbers as witnesses and denied defendant’s claim that he was entitled to be resentenced. Defendant appeals. Held:

    1. A defendant must substantially admit his guilt at a plea-taking proceeding before a hearing on his motion to withdraw his plea has any meaning. Taking Cathy Niver’s purse and leaving does not state facts that establish adequate support for a finding of guilt as to the robbery of Mr. Cubba. A defendant is questioned directly to prevent acceptance of an involuntary or induced false plea of guilty and subsequent false claims of innocence. Omissions in the record recital of the factual basis for a plea may be established in some other manner. Defendant did substantially admit his guilt, in fact, he essentially admitted the robbery charged in another count. What was missing was only the assault and the taking of money from Mr. Cubba. Defendant did not deny this and, furthermore, he has never claimed that he was innocent.

      References for Points in Headnotes
    [1, 4, 5] 21 Am Jur 2d, Criminal Law § 494.1.
    [2, 3] 21 Am Jur 2d, Criminal Law §§ 503-506.
    [3] 21 Am Jur 2d, Criminal Law § 491.
    [5] 21 Am Jur 2d, Criminal Law §§ 485, 486.

      2. The trial court did not abuse its discretion by refusing to delay the plea proceeding to permit defense counsel to decide whether he would call witnesses and which witnesses he wished to call.
    3. All sentence information was disclosed and there was full opportunity to refute anything claimed to be inaccurate. The contention that defendant should be resentenced because the sentencing judge was furnished inaccurate information is without merit.
    Affirmed.
    1. Criminal Law — Plea of Guilty — Factual Basis — Direct Questioning — Court Rules.
    A court by questioning a defendant who pleads guilty shall establish support for a finding that he is guilty of the offense charged or the offense to which he is pleading (GCR 1963, 785.7[3][2]).
    2. Criminal Law — Plea of Guilty — Factual Basis — Vacation of Plea — Missing Element — Contrary Evidence — Judge’s Discretion — Court Rules.
    The proper procedure to follow when a plea is vacated and a case is remanded because of an inadequate factual basis for the plea is to give the prosecutor an opportunity to establish a missing element to complete an acceptable factual basis and, if he is able to do so and there is no contrary evidence, the judgment of conviction shall be affirmed; if, on the other hand, he is unable to establish the missing element, the judgment of conviction shall be set aside; where contrary evidence is produced the matter shall be treated as a motion to withdraw the guilty plea and the court shall decide the matter in the exercise of its discretion (GCR 1963, 785.7[4]).
    3. Criminal Law — Plea of Guilty — Motion to Withdraw Plea — Accuracy of Plea.
    The purpose of a hearing on a motion to withdraw a plea of guilty is to supplement the plea-taking proceeding and to determine the accuracy of the plea.
    4. Criminal Law — Plea of Guilty — Factual Basis — Direct Questioning — Omissions in Record — Other Proofs.
    Direct questioning of a defendant in a plea-taking proceeding is not an absolute requirement; where the judge makes a conscientious effort to establish a factual basis for a plea of guilty by direct questioning of the defendant, omissions in the record recital of the factual basis may be established in some other manner.
    5. Criminal Law — Plea of Guilty — Factual Basis — Direct Questioning — Admission of Guilt.
    The purpose of the requirement that the factual basis of a crime be established through direct questioning of a defendant at the time a plea is taken is to prevent acceptance of involuntary or induced false pleas of guilty and subsequent false claims of innocence.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Robert John Berlin, Assistant Prosecuting Attorney, for the people.

      Hannick & Hess, PC. (by David M. Hess and Martin J. Beres), for defendant on appeal.
    Before: M. J. Kelly, P.J., and M. F. Cavanagh and P. C. Elliott, JJ.

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

   P. C. Elliott, J.

Facts

After a preliminary examination, the defendant was bound over on five counts:

Count 1. Armed robbery of money from the assistant store manager, Mr. Cubba;

Count 2. Armed robbery of a purse from an employee, Cathy Niver;

Count 3. Armed robbery of a wallet from another employee;

Count 4. Possession of a firearm when committing a felony; and

Count 5. Carrying a pistol in a car without a license.

As a result of plea bargaining, defendant was allowed to plead guilty to Count 1 with a sentence concession that the maximum sentence would not exceed 20 years and with the further understanding that he would not be charged as an habitual offender and that counts two through five would be dismissed upon his sentence.

There is no claim that GCR 1963, 785.7 was not fully complied with except as to the factual basis for the plea. In his answers to the court’s questions, the defendant said that he and a woman entered the store by the front door on the day in question while two men "came through the back door and pronounced a stickup and I went behind the counter and took Cathy Knight’s purse and left”. The transcribed name "Knight” is a mistake; he said or meant "Niver”. He admitted that the other men had guns, and that when he entered the store he did so with the intent to steal and rob somebody of some money.

The judge who had accepted the plea and sentenced the defendant to a term of 10 to 20 years retired about 60 days later. Defendant filed a motion to withdraw his plea contending that there was an inadequate factual basis for his plea to Count 1: an armed robbery of money from the presence of Mr. Cubba. The prosecutor conceded that defendant’s narration was insufficient and asked for an opportunity to present evidence to show that Mr. Cubba was robbed. A visiting judge scheduled a hearing and expressed his opinion that the missing factual element would have to be supplied by the defendant, but the prosecutor notified defense counsel that another witness would be called. The retired judge’s successor permitted Mr. Cubba to testify over objection.

Mr. Cubba testified that the defendant came through the front door and was followed by a woman while a man entered by the back who announced it was a robbery. Mr. Cubba heard a gunshot in back and was directed by the man in back to go to the rear of the store where another man with a gun told him to lie on the floor where he stayed until he was made to go to the safe in front and to open it. He saw one of the men, not defendant, take the money bag out of the safe.

The defendant did not testify at the hearing. After conferring, his lawyer informed the court that defendant stands by what he said at the time of his plea "and he does not wish to state anything further”.

The judge ruled that Mr. Cubba’s testimony, considered with defendant’s statements at the time of his plea, showed that Mr. Cubba had been robbed by armed men and that defendant was a knowing participant in the robbery. He observed that since defendant declined to say anything, there was no contrary evidence.

The court denied the request of defense counsel for a delay while he interviewed the other robbers, who were imprisoned after guilty pleas, to see if he wished to call any of them as witnesses. The court also denied a claim that defendant was entitled to be resentenced.

Opinion

Although the prosecutor conceded that there was an insufficient recitation by defendant when he pled, we wonder whether this is really so. It is true that defendant was pleading guilty to Count 1, the armed robbery of Mr. Cubba, and that he did not state facts that established adequate support for a finding of guilt of that count. However, what defendant said with the inferences permitted by the Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975), showed that defendant took a purse from Cathy Niver as an accomplice of the armed men and, therefore, was guilty of Count 2 which would be dismissed as a result of the plea bargain. GCR 785.7(3)(a) only requires:

"If the defendant pleads guilty, the court, by questioning him, shall establish support for a finding that he is guilty of the offense charged or the offense to which he is pleading. (Emphasis added.)

For example, a defendant with a bargain who pleads to an attempt usually will admit the completed felony with which he was originally charged because that is what he actually did.

Our Supreme Court has addressed the question of the proper procedure to follow when a plea is vacated and a case is remanded because of an inadequate factual basis. The Guilty Plea Cases, supra, say at 129:

"On remand the prosecutor shall be given an opportunity to establish the missing element. If he is able to do so and there is no contrary evidence, the judgment of conviction shall be affirmed. If the prosecutor is unable to establish the missing element, the judgment of conviction shall be set aside. If contrary evidence is produced, the matter shall be treated as a motion to withdraw the guilty plea and the court shall decide the matter in the exercise of its discretion. GCR 1963, 785.7(4)”.

At a hearing on a motion to withdraw a plea because a factual element is missing, the issue is the same as when the matter has been remanded by an appellate court. It should not matter in which court the relief is sought. In either case, the hearing is to supplement the plea-taking proceeding and to determine the accuracy of the plea. By contemplating that the missing element might be shown and contradicted by "contrary evidencé” the Supreme Court obviously intended that other evidence could be offered by either side whether the defendant testified or not.

"Direct questioning is not an absolute. * * * where the judge makes a conscientious effort to establish a factual basis for a plea of guilty by direct questioning of the defendant, omissions in the record recital of the factual basis may be established in some other manner * * * >>

Guilty Plea Cases, supra, page 134, footnote 3. See also People v Stewart, 69 Mich App 528; 245 NW2d 121 (1976).

The defendant could have testified, but he chose not to. If he had testified and his plea was vacated, MRS 410 would prevent use against him at the trial of either his testimony or his earlier answers. However, what he said at the time of the plea and at the time of the remand hearing could be used against him in a criminal proceeding for perjury or false statement. For this reason it is advisable to swear every defendant before he is questioned at the time of the plea or at a "missing elettient” hearing. A sentence for perjury coilld be consecutive; MCL 768.7b; MSA 28.1030(2).

A defendant who appeals his plea-based conviction or who moves to withdraw his plea can be expected to deny the missing element unless, out of fear of a perjury charge, he remains silent. There is nothing to be gained by his appeal or motion if he is going to admit the missing element. On the other hand, there is nothing to lose if he is allowed to withdraw his plea because he will retain the benefit of his bargain due to People v McMiller, 389 Mich 425, 434; 208 NW2d 451 (1973), and see People v Taylor, 89 Mich App 238; 280 NW2d 500 (1979). Consequently a hearing that is limited to further inquiry of the defendant would be a waste of time. The purpose of the requirement that the factual basis of the crime be established through direct questioning of the defendant at the time the plea is offered is to prevent acceptance of "involuntary or induced false pleas of guilty”, and "subsequent false claims of innocence”. People v Barrows, 358 Mich 267, 272; 99 NW2d 347, 350 (1959). This purpose is perverted by application of the requirement to a situation such as this where defendant has substantially admitted his guilt and then refuses to testify further or make an offer of proof at the hearing on his motion to vacate the plea.

A hearing contemplated by the Guilty Plea Cases, supra, at which evidence other than defendant’s can be considered, is limited to instances where an essential element or elements were neither denied nor admitted by the defendant due to an oversight of the judge and prosecutor at the time of his plea. Such a hearing is not possible when the defendant has not substantially admitted his guilt. See People v Long, 86 Mich App 676; 273 NW2d 519 (1978).

In the case at hand, the defendant did substantially admit his guilt. In fact, he essentially admitted the armed robbery charged in another count. What was missing was only the assault and the taking of money from the victim named in the count to which he was pleading. Defendant did not deny this at the time of his plea. Moreover, he has never claimed that he was innocent.

The defendant could have testified and the trial judge was not required to delay the proceeding to permit defense counsel to decide whether he would call witnesses or whom he wished to call as witnesses. As stated in People v Parker, 76 Mich App 432, 439, 440; 257 NW2d 109, 113 (1977):

"Requests for adjournments or continuances are addressed to the trial court’s discretion, and absent an abuse of this discretion the decision will not be overturned. [Citations omitted.] Adjournments or continuances are not to be granted except for good cause shown.”

The contention that defendant should be resentenced because the sentencing judge was furnished inaccurate information is without merit. All information was disclosed and defendant and his counsel had full opportunity to refute anything claimed to be inaccurate. See People v McIntosh, 62 Mich App 422; 234 NW2d 157 (1975), People v Books, 95 Mich App 500; 291 NW2d 94 (1980).

Affirmed.


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

text:
    HALL v GROUP INSURANCE COMPANY OF MICHIGAN
    Docket No. 45146.
    Submitted February 5, 1980, at Detroit.
    Decided April 2, 1980.
    Leave to appeal applied for.
    Shirley P. Hall brought an action against Group Insurance Company of Michigan seeking recovery of insurance benefits as a result of her husband’s death Which occurred when the motorcycle on Which he was riding was involved in a collision with an automobile. Wayhe Circuit Court found that the insurance policy excluded coverage for injuries incurred while an insured was riding a motorcycle and entered judgment in favor of the defendant, Patrick J. Duggan, J. The plaintiff appeals, alleging that, because the motorcycle exclusion does not specifically exclude paymeht for a death that occurs While dn insured is riding a motorcycle, there is ah ambiguity as to whether the policy provides coverage When a motorcycle accident results in death rather than a nonfatal injury. Held:

    The phrase "bodily injury” as used in the exclusionary language of the policy includes bodily injuries which result in death. The language of the policy in question is unambiguously clear that no recovery is permitted when loss of life results from bodily injury sustained while riding a motorcycle.
    Affirmed.
    Insurance — Words and Phrases — Automobiles — Bodily Injury — Exclusions — Motorcycles.
    The term "bodily injury” in a provision in an automobile insurance policy which excludes coverage for bodily injury while riding a motorcycle includes bodily injuries Which result in death.

      Kleih & Bloom, P.C., for plaintiff.

      Dickinson, Pike, Mourad, Brandt & Hanlon and Gromek, Bendure & Thomas (by Carl L. Gromek and James G. Gross), for defendant.
    Reference for Points in Headnote
    [1] 7 Ám Jur 2d (Rev), Automobile Insurance § 287.

      Before: N. J. Kaufman, P.J., and D. E. Holbrook, Jr., and R. M. Maher, JJ.
   D. E. Holbrook, Jr., J.

Plaintiff appeals from a trial court judgment of no cause of action in favor of the defendant. It found that an insurance policy issued by the defendant to the plaintiff’s husband excluded coverage for his death resulting from an automobile-motorcycle crash which occurred while the plaintiff’s husband was riding a motorcycle. We affirm.

The issue raised is: Where an insurance policy excludes coverage for injuries sustained while riding a motorcycle, are the death benefits under the policy payable when the insured dies in an accident while riding a motorcycle?

The policy in question insured the member "against the loss of life * * * which results from bodily injury” when the injury was sustained under certain specified circumstances. The policy covered injuries sustained if an insured was struck on a public street by an automobile. However, under the "Exceptions and Definitions” section of the policy it was stated, "This Certificate does not cover injury: * * * while riding a motorcycle or bicycle.”

Plaintiff argues that, because the motorcycle exception does not specifically exclude payment for a death that occurs while riding a motorcycle, there is an ambiguity as to whether the policy provides coverage when a motorcycle accident results in death rather than a nonfatal injury. The plaintiff claims that, because ambiguities in insurance contracts must be construed in favor of coverage, she is entitled to insurance benefits for her husband’s death which resulted when he was struck by an automobile while riding a motorcycle. In support of her argument, plaintiff points out that the cover sheet of the insurance policy distinguishes injury and death when it states that the policy purpose is to provide aid "in case of personal injury or death resulting from accidents specified in this Certificate”.

While there are no previous Michigan cases which have considered this identical issue we find ourselves justified in applying the holding of this Court in Phelps v Dep’t of State Highways, 75 Mich App 442; 254 NW2d 923 (1977). In that case the trial judge concluded that in enacting MCL 691.1402; MSA 3.996(102), which permits recovery only for "bodily injury”, the Legislature had manifested an intent not to waive its immunity to suits for wrongful death. This Court, and we feel quite properly, stated at 446-447:

"We perceive no reason * * * to distinguish between persons who sustain bodily injury and persons who sustain such serious bodily injury that they are killed. Accordingly, on grounds of public policy and common sense, we hold that the phrase 'bodily injury’ * * * includes bodily injuries resulting in death.” (Emphasis supplied.)

We therefore hold the language of the insurance policy in question to be unambiguously clear that no recovery is permitted when loss of life results from bodily injury sustained while riding a motorcycle. Review of authorities from other jurisdictions further supports our holding.

Affirmed.

        LaPlante v Pyramid Life Ins Co, 267 NW2d 727 (Minn, 1978), American Ins Co of Texas v Estes, 141 SW2d 459 (Tex Civ App, 1940), Ritchie v Standard Surety Casualty Co of New York, 257 App Div 545; 13 NYS2d 1022 (1939), Robyn v New Amsterdam Casualty Co, 257 SW 1065 (Mo, St Louis App, 1923), Standard Life and Accident Ins Co of Detroit, Michigan v McNulty, 157 F 224 (CA 8, 1907).


author: Mackenzie, J.

text:
    PEOPLE v DUNIGAN
    Docket No. 46974.
    Submitted February 7, 1980, at Grand Rapids.
    Decided April 2, 1980.
    Defendant, Anthony Dunigan, a minor, was charged with murder and assault with intent to rob being armed in the Kalamazoo Circuit Court. A petition had been filed by the prosecutor in juvenile court asking the court to take jurisdiction of the defendant. A bond, was set and defendant was held in detention. The juvenile court held a preliminary hearing, found probable cause to exist that defendant committed the acts charged and continued the bond. The prosecutor requested a waiver of jurisdiction to the circuit court. Another hearing was held, pursuant to the Juvenile Court Rules, by a different judge, who found probable cause to believe that crimes were committed and that defendant committed them. A motion to lower the bond was denied. A later hearing was held pursuant to the rules and the court waived jurisdiction, binding defendant over to circuit court for arraignment. Defendant was arraigned in the circuit court and bond was continued. Defendant moved to quash the information and discharge him from custody on the ground that he had not received the proper preliminary examination as provided by law. The court, Donald T. Anderson, J., denied the motion. Defendant appeals by leave granted. Held:

    The right of a defendant to a preliminary examination is not a constitutional right, but is a fundamental right in most criminal cases and is a critical stage in criminal proceedings. The primary function of a preliminary examination is to determine if a crime has been committed and, if so, if there is probable cause to believe the defendant committed it. The advantages of a preliminary examination to an accused are: 1) the opportunity to gain knowledge of the evidence against him; 2) the opportunity for face-to-face confrontation with accusers; 3) the opportunity to perpetuate testimony; and 4) the opportunity to determine the amount of bail. All of these advantages were accorded to the defendant in the juvenile court hearings. Under the circumstances it is unlikely the defendant would have substantially benefited by a preliminary examination.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 443.
    [2] 21 Am Jur 2d, Criminal Law § 442.
    [3] 21 Am Jur 2d, Criminal Law § 442 et seq.

      Affirmed.
    1. Criminal Law — Preliminary Examinations — Probable Cause.
    The primary function of a preliminary examination is to determine if a crime has been committed and, if so, if there is probable cause to believe the defendant committed it.
    2. Criminal Law — Rights of Defendants — Preliminary Examination — Constitutional Law — Fundamental Rights.
    The right of a defendant to a preliminary examination is not a constitutional right, but is a fundamental right in most criminal cases and is a critical stage in criminal proceedings.
    3. Criminal Law — Preliminary Examinations — Juvenile Defendants.
    The advantages of a preliminary examination to an accused are: 1) the opportunity to gain knowledge of the evidence against him; 2) the opportunity for face-to-face confrontation with accusers; 3) the opportunity to perpetuate testimony; and 4) the opportunity to determine the amount of bail; a circuit court did not err in denying a preliminary examination to a juvenile criminal defendant who had undergone a probable cause hearing in juvenile court, been informed of the charges, was represented by counsel, had the opportunity to confront the witnesses against him, had the issue of bond raised several times, and had the issue of probable cause determined on two occasions by two different judges; under the circumstances it is unlikely the defendant would have substantially benefited by a preliminary examination.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Leroy E. Densmore, Jr., Assistant Prosecuting Attorney, for the people.

      DeVries & Lamb, P.C., for defendant.
    Before: Danhof, C.J., and R. B. Burns and Mackenzie, JJ.
   Mackenzie, J.

Defendant appeals, by leave granted and pursuant to an order for immediate consideration, from a Kalamazoo County Circuit Court order entered August 9, 1979, denying defendant’s motion to quash an information charging him with felony-murder, contrary to MCL 750.316; MSA 28.548, and assault with intent to rob while armed, contrary to MCL 750.89; MSA 28.284. Trial has been adjourned pending appeal.

On January 6, 1979, a petition in the Kalamazoo County juvenile court was filed by the prosecutor requesting that the court take jurisdiction of defendant, who was then age 15. Upon the holding of a detention hearing, bond was set at $100,000 and defendant was placed in detention.

A preliminary hearing in juvenile court was held on January 18, 1979. The court found that probable cause existed to believe that defendant committed the crime charged. Bond was continued at $100,000.

On the same day, the prosecutor filed a petition requesting a waiver of jurisdiction, pursuant to JCR 1969, 11. At the time of defendant’s waiver hearing, Rule 11 provided in part:

"1 * * * When a petition is filed requesting a waiver of jurisdiction under MCLA 712A.4; MSA 27.3178(598.4), the hearing consists of 2 phases. The interval between them, if any, is within the court’s discretion.

"(A) Phase 1: Showing of Probable Cause. The court shall first determine if a crime has been committed which, if committed by an adult, would be a felony and if there is probable cause to believe that the child committed the crime. The determination must be based on legally admissible evidence.

"(B) Phase 2: Criteria for Waiver. On a showing of probable cause, the court shall conduct a full investigation to determine whether the interests of the child and the public would best be served by granting a waiver of jurisdiction to a court of criminal jurisdiction.”

Phase 1 of the waiver proceedings was held on January 24, 1979, before probate judge James S. Casey. The judge declared that the purpose of the Phase 1 hearing was to determine if a crime has been committed which if committed by an adult would be a felony and if there was probable cause to believe the child committed the crime. The judge stated that the determination must be based on legally admissible evidence. At the conclusion of the hearing, the judge found probable cause to believe that defendant committed the crimes charged. The court denied a defense request to have the bond lowered.

Phase 2 of the waiver proceedings took place on March 26, 1979, pursuant to JCR 1969, 111.1(B). On April 24, 1979, the court entered an order waiving jurisdiction and binding defendant over to circuit court for arraignment.

On May 14, 1979, an information was filed in Kalamazoo County Circuit Court charging defendant with felony murder and assault with intent to rob while armed. A preliminary examination was not held in district court. Defendant was arraigned on June 18, 1979, and the previous bond was continued.

Defendant filed a motion to quash the information and to discharge him from custody on June 21, 1979, on the ground that defendant had not received the proper preliminary examination as provided by law. Such motion was denied by the trial court on August 9, 1979.

On September 20, 1979, this Court ordered immediate consideration of defendant’s emergency appeal application. In response to defendant’s motion, on October 10, 1979, the circuit court judge granted adjournment of trial and a stay of proceedings in circuit court pending appeal.

Defendant contends that the circuit court judge erred in denying his motion to quash the information, claiming that he cannot be tried on an information without the previous holding of a preliminary examination in district court.

The circuit court judge held that a preliminary examination was not mandatory once a juvenile has been transferred to the adult system. The court noted the procedures of Phase 1 of the waiver hearing and a district court preliminary examination are the same. In both hearings, the judge must make a determination that a crime has been committed and that there is reasonable cause to believe that defendant committed it. Further, in both hearings, the defendant is entitled to representation by an attorney, appointed if necessary. The judge noted that the statute concerning the waiver from juvenile court, MCL 764.27; MSA 28.886, states that the waiver shall be directed to a court of general criminal jurisdiction (circuit court).

The circuit court judge additionally noted that the rights of the accused juvenile are protected to an even greater extent in the juvenile waiver process than they are in the preliminary examination held in district court, since in Phase 2 of the proceedings the judge must consider various circumstances of the defendant.

We agree with the circuit judge that in the instant case it was not mandatory that defendant be provided a preliminary examination in district court prior to arraignment.

The significance of the preliminary examination was discussed by this Court in People v Skowronek, 57 Mich App 110, 114; 226 NW2d 74 (1974):

"The right of defendant to a preliminary examination is not a constitutional right, Woon v Oregon, 229 US 586; 33 S Ct 793; 57 L Ed 1340 (1913), but it is one which the Michigan Supreme Court has called a 'fundamental right in most criminal cases’, People v Duncan, 388 Mich 489, 502; 201 NW2d 629, 635 (1972), and the United States Supreme Court has found to be a 'critical stage’ in criminal proceedings. Coleman v Alabama, 399 US 1, 9; 90 S Ct 1999, 2003; 26 L Ed 2d 387, 397 (1970). 'The primary function of a preliminary examination is to determine if a crime has been committed and, if so, if there is probable cause to believe the defendant committed it.’ People v Duncan, supra, at 499; 201 NW2d at 633”.

Since the preliminary examination is a "critical stage” in the criminal justice system, the accused is entitled to representation of counsel. People v Hatt, 384 Mich 302; 181 NW2d 912 (1970).

As noted by the circuit judge, Phase 1 of the waiver hearing accomplishes the same purpose as the preliminary hearing. Further, this determination is made with the same procedural safeguards, such as right to counsel. In People v Duncan, 388 Mich 489; 201 NW2d 629 (1972), the Court recognized the following advantages of the preliminary examination to the accused: (1) the opportunity to gain knowledge of the evidence against him; (2) the opportunity for face-to-face confrontation with accusers; (3) the opportunity to perpetuate testimony; and (4) the opportunity to determine the amount of bail.

In the instant case, defendant was not prejudiced by the lower court’s refusal to grant him the opportunity for a preliminary examination in district court. At the Phase 1 probable cause hearing in juvenile court, defendant was informed of the charges against him; he was represented by counsel; he had the opportunity to confront the witnesses agaitist him; the issue of bond was raised several times. A probable cause determination was made on two separate occasions in juvenile court by two different judges. Therefore, it is unlikely that defendant in the present case would have substantially benefited by a preliminary examination in district court.

Affirmed.


author: V. J. Brennan, J.

text:
    VACLAV v VACLAV
    Docket No. 78-4419.
    Submitted October 10, 1979, at Detroit.
    Decided February 8, 1980.
    Leave to appeal applied for.
    Defendant, Karen A. Vaclav, and plaintiff, Robert G. Vaclav, were married in Texas in 1963. They had two children born of the marriage. In 1975, they purchased a house in Trenton, Michigan, on land contract. The present market value of that house is approximately $100,000. Plaintiff sued defendant for divorce in the Wayne Circuit Court. At trial, defendant testified: that she dropped out of college and worked as a billing clerk for three years prior to the birth of their first child while plaintiff attended medical school; that defendant’s father sent them $100 per week for support, totalling approximately $15,-000; that plaintiff also worked part time through school; that plaintiff did not allow defendant to work after the birth of their first child; that plaintiff moved out of the marital home in December of 1976; and that the divorce was precipitated by plaintiffs long hours, neglect of his family and, after 1975, his affairs with other women. The trial court, John H. Housner, J., found that plaintiff was not engaged in extramarital affairs and was not guilty of illicit or improper behavior. It awarded custody of the children to defendant and, based on a 1977 taxable income of $111,000 and a taxable income for the first five months of 1978 of $90,000, awarded $100 per week per child in child support. He ordered the home sold and awarded 60% of the proceeds to defendant and allowed defendant to remain in the home pending appeal at a monthly rent of $265. The court also awarded defendant $15,000 in alimony, to be paid over a three-year period, and $4,000 in attorney fees. Defendant appeals. Held:

      References for Points in Headnotes
    [1] 59 Am Jur 2d, Parent and Child §§ 50, 56.
    Adequacy of amount of money awarded as child support. 1 ALR3d 324.
    Excessiveness of amount of money awarded as child support. 1 ALR3d 382.
    [2, 4] 5 Am Jur 2d, Appeal and Error § 868.
    24 Am Jur 2d, Divorce and Separation § 662.
    [3, 5] 24 Am Jur 2d, Divorce and Separation § 630 et seq.

    [6] 24 Am Jur 2d, Divorce and Separation § 573.

      1. The amount of child support a parent should pay should be determined in light of the parent’s ability to pay, and, in making a determination, a court may rightfully consider the parent’s income and his unexercised or future ability to earn. A trial court’s determination of the amount of child support is presumed to be correct and will only be overturned where an abuse of discretion has occurred, that is, where the reviewing court is convinced that it would have reached a different result had it been in the lower court’s position. The Court of Appeals is convinced that it would have decided differently and modifies the child support to $150 per week per child. It also orders plaintiff to maintain one policy of insurance on his life in the amount of $50,000 for the benefit of the minor children until the youngest reaches the age of majority.
    2. A determination as to alimony necessitates consideration of: (1) the duration of the marriage; (2) contributions of the parties to the joint estate [sources of property]; (3) age; (4) health; (5) station in life; (6) necessities and circumstances; and (7) earning ability of the parties. Consideration should be given to such factors as the disparate earning capacity of the parties, each party’s relative responsibility in causing the marital breakdown and the needs of the minor children in deciding on a division of property. The Court of Appeals reviews divorce cases de novo but it will not revise or modify alimony awards and property settlements unless it is convinced that it would have reached a different result had it occupied the position of the trial court. The Court of Appeals is convinced that it would have reached a different result and modifies the alimony award to $15,000 per year until defendant remarries or dies, payable in equal monthly installments to the Friend of the Court. It also modifies the award to provide that the defendant may continue to reside in the marital home, rent free, until defendant remarries, elects to sell or the youngest child reaches 18. Plaintiff is ordered to make the land contract, tax and insurance payments on the property in the interim. When the house is sold, defendant shall receive 60% of the proceeds.
    3. The award of attorney fees in a divorce action is within the discretion of the trial court to enable a party to carry on or defend the lawsuit and the award of attorney fees to defendant was not an abuse of discretion.
    Reversed and judgment modified.

      1. Parent and Child — Support of Children — Ability to Pay — Future Earning Ability.
    The amount of child support a parent should pay should be determined in light of the parent’s ability to pay, and, in making a determination, a court may rightfully consider the parent’s income and his unexercised or future ability to earn.
    2. Parent and Child — Support of Children — Appeal.
    A trial court’s determination of the amount of child support is presumed to be correct and will only be overturned where an abuse of discretion has occurred, that is, where the reviewing court is convinced that it would have reached a different result had it been in the lower court’s position.
    3. Divorce — Alimony — Property Settlement — Considerations.
    A determination as to alimony necessitates consideration of: (1) the duration of the marriage; (2) contributions of the parties to the joint estate (sources of property); (3) age; (4) health; (5) station in life; (6) necessities and circumstances; and (7) earning ability of the parties.
    4. Appeal — Divorce — Alimony — Property Settlements — De Novo Review.
    The Court of Appeals reviews divorce cases de novo but it will not revise or modify alimony awards and property settlements unless it is convinced that it would have reached a different result had it occupied the position of the trial court.
    5. Divorce — Division of Marital Assets — Factors to Consider.
    Consideration should be given in a divorce action to such factors as the disparate earning capacity of the parties, each party’s relative responsibility in causing the marital breakdown and the needs of the minor children in deciding on a division of property.
    6. Divorce — Attorney Fees.
    The award of attorney fees in a divorce action is within the discretion of the trial court to enable a party to carry on or defend the lawsuit.

      Leonard Lemberg, P.C., for plaintiff.

      Craig, Fried & Heidt, for defendant.
    Before: J. H. Gillis, P.J., and V. J. Brennan and Mackenzie, JJ.
   V. J. Brennan, J.

This appeal by the defendant wife arises from a judgment of divorce. A hearing was held in the Wayne County Circuit Court on September 11 and 12, 1978. The trial court announced its findings of fact orally on October 10, 1978. A written judgment of divorce was filed on October 13,1978.

Defendant, Karen Vaclav, and plaintiff, Robert Vaclav, aged 34 and 35 respectively, were married in Amarillo, Texas on August 17, 1963. Two children were born of the marriage, David, age 12, and Vicky, age 9. Plaintiff is now a medical doctor. The marital home in Trenton, Michigan, was purchased in 1975 for $68,000 under a land contract and has a current market value of approximately $100,000.

Defendant testified that she dropped out of college and worked as a billing clerk for three years prior to the birth of her first child while plaintiff attended medical school. After her husband entered medical school, defendant’s father sent them $100 per week for support, totaling approximately $15,000. Plaintiff also worked part time. Plaintiff did not allow defendant to work after their children were born. Defendant stated that the divorce was precipitated by her husband’s long hours and neglect of his family and, after 1975, his affairs with other women. Plaintiff moved out of the marital home in December of 1976.

The trial court found that although plaintiff spent long hours away from home he was not engaged in any extramarital affairs, nor was he guilty of any illicit or improper behavior.

Plaintiff’s taxable income for 1977, as reflected by his tax return, was $111,000. Also, in the first five months of 1978 he reported over $90,000 income. Defendant requested $150 per week for each of the two children for child support but was awarded $100 per week per child. She was awarded 60% of the proceeds from the sale of the marital home but was ordered to pay $265 per month rent during the pendency of this appeal. Defendant was also awarded alimony in gross of $15,000, payable over a three-year period in equal, semi-annual payments, as well as $4,000 in attorney fees.

Defendant appeals the judgment of divorce alleging that, in view of the financial circumstances of the father, the trial court did not provide an adequate amount of child support. Defendant further contends that the property settlement mandated by the trial court was not fair and equitable, nor was the award of alimony sufficient to support and maintain her.

Child support payments are intended for the benefit of the child. Gallagher v Dep’t of Social Services, 24 Mich App 558, 565; 180 NW2d 477 (1970). The amount of child support should be determined by need in light of ability to pay. Baird v Baird, 368 Mich 536, 541; 118 NW2d 427 (1962). The father’s income is one of the factors to which the court must look in deciding the amount of support, but a father’s duty is not limited by his present income; the court may also look to the father’s unexercised or future ability to earn. Moncada v Moncada, 81 Mich App 26, 30; 264 NW2d 104 (1978).

Dr. Vaclav’s taxable income for 1977 was $111,-000. He argued that his family had lived for many years on a far lower income, closer to $15,000 per year. However, it is the present or potential income, which should determine the amount of child support. The children are not restricted to their past standard of living. Rather, it is the father’s current economic status along with his income potential which are the determining factors. Travis v Travis, 19 Mich App 128, 130; 172 NW2d 491 (1969). Moncada, supra. Plaintiffs records for the first five months of 1978 show earnings of over $90,000.

The record reflects that defendant interrupted her education and has been outside the labor force for about 12 years.

The trial court’s determination of the amount of child support is presumed to be correct by a reviewing court. The appellant bears the burden of showing that determination to be clearly erroneous. Moncada, supra, 29-30. The reviewing court will reverse the trial court’s determination if there was an abuse of discretion. A trial court will be found to have abused its discretion if the reviewing court is convinced that it would have reached a different result had it been in the lower court’s position. Cullimore v Laureto, 66 Mich App 463, 465; 239 NW2d 409 (1976).

The following changes in the trial court’s judgment are made because we find there was an abuse of discretion therein.

This Court is convinced that it would have reached a different result had it been in the lower court’s position. The trial court awarded $100 per child per week in child support; we would have awarded more. Therefore, the judgment of divorce shall be changed in the following manner as to support of the minor children: the plaintiff shall pay to defendant, through the office of the Wayne County Friend of the Court, for the support, care, and maintenance of the minor children, $150 per week per child until each child reaches the age of 18 or until further order of the trial court. GCR 1963, 820.1(7). Said payment is to be effective immediately. The remaining provisions in the support section shall remain in force.

We further believe that the trial judge’s disposition of the insurance policies was both inequitable and an abuse of discretion. Plaintiff was allowed to retain four life insurance policies; three on his own life having a total face value of $160,000 and a term policy on defendant’s life with a face value of $100,000! Defendant owns no insurance policies on plaintiff’s life. We recognize that the expense of rearing the two minor children continues whether or not plaintiff is alive. Accordingly, that portion of the judgment awarding plaintiff the named insurance policies is hereby modified. Plaintiff is to designate the two minor children as beneficiaries, with defendant named as their trustee, of an insurance policy on his life with a face value of $50,000. Plaintiff is to maintain said policy and pay all premiums thereon until the youngest child reaches the age of 18. GCR 1963, 820.1(7). See Smith v John Hancock Mutual Life Ins Co, 65 Mich App 193; 237 NW2d 244 (1975).

We now address the fairness of the award of alimony in gross.

The court’s power to award alimony is statutory, MCL 552.23; MSA 25.103. In determining the amount of alimony to be awarded a court must consider: (1) duration of the marriage; (2) contributions of the parties to the joint estate [sources of property]; (3) age; (4) health; (5) station in life; (6) necessities and circumstances; and (7) earning ability of the parties. Holbern v Holbern, 91 Mich App 566; 283 NW2d 800 (1979).

The matter of alimony is within the trial court’s discretion and even though this Court hears appeals in divorce cases de novo, we will not modify alimony awards unless we are convinced that we would have reached a different result had we occupied the position of the trial court. Henshaw v Henshaw, 83 Mich App 68, 71; 268 NW2d 289 (1978).

In the present case the marriage has endured for over 15 years and there are two minor children. The wife assisted her husband in acquiring his medical training, financially and otherwise. It is true that the husband contributed the money that was used to purchase the marital home, but he was awarded the only income producing property — his medical practice. The wife never acquired meaningful education or skills and has been out of the job market for more than 12 years. The husband is currently in private practice with an exceedingly high income potential.

The trial court determined that an award of $15,000 alimony in gross payable over three years was fair. This Court must conclude that, under the circumstances, the amount awarded to the wife in alimony was so low as to constitute an abuse of discretion. That section of the judgment of divorce is hereby stricken.

We feel that a more equitable award of alimony would be, and we hereby award defendant, $15,000 annually as permanent alimony to be paid until defendant remarries or dies. GCR 1963, 820.1(7). This shall be paid in equal monthly payments to the office of the Wayne County Friend of the Court.

The above analysis of the alimony award is also applicable to a review of the property settlement and we likewise conclude that the property settlement, as determined by the trial court, was insufficient to support and maintain defendant.

In Moss v Moss, 80 Mich App 693, 695; 264 NW2d 97 (1978), lv den 402 Mich 946 (1978), this Court recognized that the acquisition of a medical degree during the marriage is an asset which could be considered in a property settlement. The trial court in this case did not consider this asset in its determination of the property settlement, but this Court, had it been in the position of the trial court, would have. Defendant was awarded 60% of the proceeds from the sale of the marital home. However, the trial court also ordered the wife to pay $265 per month rental pending the resolution of this appeal. Meanwhile, plaintiff has purchased a $170,000 home for himself and his new wife.

Defendant is justifiably entitled to the greater share of the marital estate because of the disparate earning capacity of the parties, plaintiff’s responsibility in helping to cause the marital breakdown and the needs of the couple’s minor children. Tigner v Tigner, 90 Mich App 787, 790; 282 NW2d 481 (1979).

We believe that equity requires that the defendant be able to maintain a suitable home to properly raise their two children without worrying about being forced to sell or relocate. Therefore, this section of the judgment of divorce is hereby modified to provide that the defendant may continue to reside in the marital home and plaintiff shall continue paying the land contract, the taxes and the insurance on the property until the youngest child reaches 18 or defendant remarries or elects to sell, whichever comes first. GCR 1963, 820.1(7). At the time one of these conditions occurs, the marital home shall be sold and the defendant shall receive 60% of the sale proceeds, with plaintiff receiving 40%. That portion of the trial court’s judgment which ordered defendant to pay for the use and occupancy of the marital home is hereby stricken and any amounts paid under that order must be returned.

Plaintiff contends that the trial court erred in awarding defendant $4,000 in attorney fees.

We disagree. An award of attorney fees in a divorce action is within the trial court’s discretion. MCL 552.13; MSA 25.93. Such fees are awarded in a divorce action, not as a matter of right, but only when necessary to enable a party to carry on or defend the suit. GCR 1963, 726.1. It will not be disturbed on appeal except upon a showing of a manifest abuse of discretion. Tigner, supra, 791. The circumstances of the present case indicate that the award of attorney fees was not an abuse of discretion.

The remaining portions of the judgment of divorce not discussed here shall remain in full force and effect.

Reversed as directed. The plaintiff shall pay the costs of this appeal.

       In the event plaintiff dies, his children might have a claim against his estate. We are not unmindful, however, that it might take many months or even years before plaintiff’s affairs would be settled. In the interim the entire financial burden of support would fall upon defendant. As we have already indicated, this would be a financial burden which she would be ill-equipped to bear.


author: Per Curiam,

text:
    PEOPLE v GIRARD
    Docket No. 77-106.
    Submitted November 15, 1979, at Detroit.
    Decided April 3, 1980.
    David P. Girard was convicted of second-degree murder, Wayne Circuit Court, John H. Hausner, J. Defendant appeals, alleging that the trial court erred in its instructions to the jury on the issue of insanity. The instructions as given were based on the common law rather than on the statutory provisions defining insanity as a defense to a criminal act. Held:

    1. The standards for a finding of legal insanity under the common-law rule and the statute are not sufficiently similar to allow a trial court to instruct a jury under the common-law rule.
    2. The instructions as given erroneously defined legal insanity and confused the concepts of insanity and mental illness. The confusion was sufficient to preclude a finding of harmless error.
    Reversed and remanded.
    1. Criminal Law — Defenses — Insanity — Instructions to Jury —• Statutes.
    A trial court is required to instruct the jury on the definition of legal insanity before any testimony is presented on that issue where a defendant has expressed the intention of raising an insanity defense (MCL 768.29a[l]; MSA 28.1052[1][1]).
    2. Criminal Law •— Defenses — Insanity — Instructions to Jury •— Common Law Rule — Statutes.
    The standard for finding a defendant legally insane under the common-law rule is not sufficiently similar to the standard as formulated by statute to allow a trial court to instruct a jury under the common-law rule rather than pursuant to statute (MCL 768.21a[l]; MSA 28.1044[1][1]).

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 45, 53.
    75 Am Jur 2d, Trial §§ 738, 739.
    [2] 21 Am Jur 2d, Criminal Law § 45 et seq.

    75 Am Jur 2d, Trial § 742.
    [3] 21 Am Jur 2d, Criminal Law § 31 et seq.

    75 Am Jur 2d, Trial § 738 et seq.

      3. Criminal Law — Defenses — Insanity — Mental Illness — Instructions to Jury — Statutes.
    The statutory definitions of mental illness and insanity are not the same and a criminal defendant may not be found insane without a finding of mental illness; a trial court’s jury instructions which erroneously defined legal insanity and confused the concepts of insanity and mental illness require that a defendant’s conviction be reversed (MCL 330.1400a, 330.1500[g]; MSA 14.800[400a], 14.800[500][g]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.

      Rolf E. Berg, Assistant State Appellate Defender, for defendant on appeal.
    Before: Bronson, P.J., and D. C. Riley and E. A. Quinnell, JJ.

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

   Per Curiam,

defendant was convicted, after a jury trial of second-degree murder, MCL 750.317; MSA 28.549, in the stabbing death of Lloyd Adams. He was sentenced to a prison term of from 40 to 60 years and now appeals by right.

Defendant did not deny the killing, but relied at trial on an insanity defense. The principal issue on appeal is whether the trial court erred in its insanity instructions. The instructions given appear to have been drawn from the common law of Michigan, despite the fact that effective prior to the instant case the Legislature had undertaken to codify the Michigan law on insanity in a manner at least facially distinguishable from the common law. We must determine whether the differences between the old and new standards for measuring criminal responsibility are significant enough to warrant reversal in the instant case.

When defendant has expressed the intention of raising an insanity defense, the trial court is required to instruct the jury on the definition of legal insanity before any testimony is presented on that issue. MCL 768.29a(1); MSA 28.1052(1)(1), People v Mikulin, 84 Mich App 705; 270 NW2d 500 (1978). The statute defining legal insanity states:

"A person is legally insane if, as a result of mental illness as defined in section 400a of Act No. 258 of the Public Acts of 1974, being section 330.1400a of the Michigan Compiled Laws, or as a result of mental retardation as defined in section 500(g) of Act No. 258 of the Public Acts of 1974, being section 300.1500 of the Michigan Compiled Laws, that person lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.” MCL 768.21a(1); MSA 28.1044(1)(1).

Additionally, the trial court is required to instruct at the conclusion of the trial (1) that the jury is to consider separately the issues of the presence or absence of mental illness and the presence or absence of legal insanity, and (2) on the possible verdicts of guilty, guilty but mentally ill, not guilty by reason of insanity, and not guilty. MCL 768.29a(2); MSA 28.1052(1)(2). If the jury were to find a defendant mentally ill, it could find him not guilty, guilty but mentally ill, or, if the mental illness resulted in the defendant’s lacking substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law, not guilty by reason of insanity.

The Michigan common law has long recognized the defense of insanity, although there was initially some contradiction as to the applicable standard. See People v Garbutt, 17 Mich 9 (1868), People v Finley, 38 Mich 482 (1878), People v Durfee, 62 Mich 487; 29 NW 109 (1886). The Durfee rule prevailed, and was reaffirmed by the Supreme Court shortly before the Legislature’s codification of the insanity defense in People v Martin, 386 Mich 407, 418; 192 NW2d 215 (1971), cert den sub nom Lewis v Michigan, 408 US 929; 92 S Ct 2505; 33 L Ed 2d 342 (1972). The Martin Court stated the common law rule as follows:

"The salient elements of the Michigan test are: 1) whether defendant knew what he was doing was right or wrong; and 2) if he did, did he have the power, the will power, to resist doing the wrongful act? The Michigan test encompasses not only a sudden overpowering, irresistible impulse but any situation or condition in which the power, 'the will power’ to resist, is insufficient to restrain commission of the wrongful act.” People v Martin, supra, 418 (footnote omitted).

The Court confessed that if it were writing "upon a clean slate” it might well adopt another of the various alternative insanity rules available, but declined to do so for several reasons including deference to the Legislature, which was considering the question at the time.

The rule reaffirmed in Martin is substantially the rule that has become known as the "M’Naghten plus irresistible impulse” test. People v Martin, supra, 418, LaFave & Scott, Handbook on Criminal Law, § 37, pp 283-284. The rule adopted by the Legislature most closely resembles the standard promulgated by the American Law Institute as part of the Model Penal Code. The similarities between the "M’Naghten plus irresistible impulse test” (Michigan common law) and the ALI "substantial capacity” test (Michigan statutory) have been noted, some calling the latter a "modernized version” of the former. LaFave & Scott, supra, § 38, p 292. While we perceive the question of whether instructions modeled after the Michigan common law will suffice under the new statutory scheme to be one of first impression, we note that this Court has in passing recognized the similarities between the old and new tests. See People v Mangiapane, 85 Mich App 379, 391; 271 NW2d 240 (1978), People v Mikulin, supra, 707. See, also, commentary to CJI 7:8:03-7:8:13 at 1 Michigan Criminal Jury Instructions (Ann Arbor: Institute of Continuing Legal Education), P 7-143.

Despite the similarities in the way that the old and new standards approach the problem of criminal responsibility, there are substantial differences in degree between the two standards. These differences can be demonstrated by comparing the trial court’s instructions with the standards found in the statutes. Prior to the start of the prosecution’s case the trial court instructed the jury on insanity as required:

"Members of the jury, the defense claimed by the defendant is not guilty by reason of insanity. That is, that he lacked criminal responsibility at the time of the alleged crime. Everyone is presumed to be sane, but once evidence of insanity is introduced, the burden rests on the People to prove sanity beyond a reasonable doubt. Should you find that the defendant committed the crime charged, you must determine whether he lacked criminal responsibility as a result of insanity at the time he committed the alleged crime.

"In doing so, you must determine if the defendant was not capable of knowing that what he was doing was wrong; that is to say that he was not able to distinguish between right and wrong at the time of the crime charged.

"Second, if you find he could distinguish between right and wrong, but that he did not have the power to resist the impulse to do the act by reason of mental disease or insanity, then he is not criminally responsible.”

Similarly, at the conclusion of trial and prior to the jury’s deliberations, the trial court again instructed on the definition of legal insanity:

"First, as a result of mental illness or disease, did the defendant not know that what he was doing was wrong; or was the defendant unable to distinguish between right and wrong. If you find that the defendant suffered from a mental illness or disease and at that time could not distinguish between right and wrong, you must find him not guilty by reason of lack of criminal responsibility.

"Second, if you find that he could distinguish between right and wrong but was suffering from mental illness or disease, you must further consider whether, in that situation and in his condition, the defendant had the will power to resist doing the wrongful act. If you find that he was suffering from mental illness or disease and that his will power was insufficient to keep him from committing the wrongful act, you must find him not guity by reason of lack of criminal responsibility.

As can be seen, these instructions follow from the insanity test set out in Martin.

The most important difference between the trial court’s instructions and the definition of insanity found in the statute is the degree to which the defendant must be affected by mental illness in order to qualify for the insanity defense. Under the trial court’s instructions the jury must find that defendant was "not capable” of knowing his conduct was wrong or that he did "not know” what he was doing was wrong. He would have to be found to have been ’’unable to distinguish between right and wrong”. Similarly, under the "irresistible impulse” portion of the instruction, the jury had to find that defendant’s will power "was insufficient to keep him from committing the wrongful act” or that he "did not have the power to resist the impulse”. These instructions point out one of the most frequent criticisms of the ’’M’Naghten plus irresistible impulse” test; that it is an all-or-nothing proposition. The statute, on the other hand, speaks in terms of "substantial capacity” and accordingly reduces the degree to which defendant’s mental illness must affect his ability to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. The trial court’s instructions require that the defendant not know right from wrong while the statute requires only that he lack a substantial capacity to appreciate the wrongfulness of his conduct. The trial court’s instructions require that defendant not have had the power to resist the act while the statute requires only the lack of a substantial capacity to conform his conduct to the requirements of law. We do not believe that these standards are sufficiently similar to allow the trial court to instruct under the common law rule. " 'The problem is to differentiate between the wholly non-deterrable and persons who are more or less susceptible to influence by law.’ ” People v Martin, supra, 421, quoting Wechsler, The Criteria of Criminal Responsibility, 22 U Chi L Rev 367, 374 (1955). The common law’s all-or-nothing approach was unduly restrictive in realizing this goal. The statutory scheme recognizes that there are some who do not meet the common law test that nevertheless should not be held criminally responsible. Accordingly, the trial court’s instructions on insanity were erroneous.

In People v Crawford, 89 Mich App 30, 36; 279 NW2d 560 (1979), this Court held that the use of an erroneous insanity instruction did not require reversal. The Court reasoned that since a finding of insanity had first to be based on a finding of mental illness, and since defendant had been found guilty rather than guilty but mentally ill, the jury must have found no mental illness and could not, as such, have found defendant insane even under proper instructions. We decline to apply this analysis to the instant case, because review of the trial court’s insanity instructions reveals too much confusion between the concepts of insanity and mental illness. The new statutory scheme makes it clear that mental illness and insanity are not, as legally defined, the same thing. Insanity must be the result of mental illness (or mental retardation), but mental illness can be present without a finding of insanity. In such a case, assuming the other elements of the crime were sufficiently established by the prosecution, the proper verdict would be "guilty but mentally ill”. In the instant case, the trial court sought to comply with the statute by instructing the jury on the definition of insanity at the start of the trial and before any evidence was received on the issue of defendant’s sanity. MCL 768.29a(1); MSA 28.1052(1)(1). As noted above, that instruction erroneously defined legal insanity. The statute also specifically requires that the trial court instruct the jury on the definition of mental illness (or, if relevant, the definition of mental retardation), but the trial court failed to do so. While a finding of mental illness is necessary to a finding of insanity, the trial court’s preliminary insanity instruction only referred to mental illness once, and in that instance the instruction tended to equate it with insanity:

"Second, if you find he could distinguish between right and wrong, but that he did not have the power to resist the impulse to do the act by reason of mental disease or insanity, then he is not criminally responsible.” (Emphasis added.)

It is critical to the Crawford harmless error analysis that the jury be properly instructed on the distinctions between mental illness and insanity. When the two concepts are confused, we cannot ascribe to the jury the thought process necessary to obviate the error. In its final instructions to the jury on insanity, the trial court once again confused the concepts of mental illness and insanity:

"The defense claimed by the defendant is that he is not guilty because, as a result of insanity, that is mental illness or disease, he lacked criminal responsibility at the time of the alleged crime.” (Emphasis added.)

Nowhere in the final instructions on insanity is a definition of mental illness given. Although the trial court later defined mental illness in connection with the instructions on the verdict of "guilty but mentally ill”, it was crucial that mental illness be defined in the instructions concerning insanity. The trial court’s error in this regard resulted in sufficient confusion between the concepts of mental illness and insanity so as to preclude a Crawford harmless error analysis. Reversal is required.

We have examined the remainder of defendant’s arguments, and find that none independently requires reversal. The matter is reversed and remanded for a new trial.

Reversed and remanded.

       1975 PA 179; 1975 PA 180.

       The statute states:
      "If the defendant asserts a defense of insanity in a criminal action which is tried before a jury, the judge shall, before testimony is presented on that issue, instruct the jury on the law as contained in sections 400a [mental illness, MCL 330.1400a; MSA 14.800(400a)] and 500(g) [mental retardation, MCL 330.1500(g); MSA 14.800(500)(g)] of Act No. 258 of the Public Acts of 1974 and in section 21a [legal insanity, MCL 768.21a; MSA 28.1044(1)] of chapter 8 of this act.”
      Instructions on mental illness and mental retardation are required because under the statute legal insanity must result from one or the other.

         M’Naghten’s Case, 8 Eng Rep 718 (1843).
      The Court in Martin was quick to point out that the term "irresistible impulse” was somewhat misleading: "The Michigan test encompasses not only a sudden overpowering, irresistible impulse but any situation or condition in which the power, 'the will power’ to resist, is insufficient to restrain commission of the wrongful act.”

       "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.” Model Penal Code, § 4.01(1) (1962 Proposed Official Draft).

       The prosecution relies on People v Van Diver, 79 Mich App 539; 261 NW2d 78 (1977), since it was decided after the effective date of the new insanity statutes yet stated the common law test. The principal issue in Van Diver was whether the trial court erred in refusing to give an insanity instruction under the facts of that case. This Court held the failure was reversible, and remanded for a new trial. We do not know why the Court stated the.common law insanity test, but the precise issue involved in the instant case was not addressed in Van Diver and, accordingly, was not decided.

       The same instructions were later re-read to the jury at its request.

       Although no objection was raised to the trial court’s insanity instructions, we find review is necessary in order to prevent manifest injustice. See People v Hall, 77 Mich App 456, 462; 258 NW2d 517 (1977), lv den 402 Mich 909 (1978). Defendant’s sanity was the key issue in the instant case, and he was entitled to a properly instructed jury.

       See note 1, supra.