text:
    KROHN v BOARD OF MEDICINE
    Docket No. 45895.
    Submitted April 9, 1980, at Lansing.
    Decided May 8, 1980.
    Leave to appeal denied, 409 Mich 934.
    Don R. Krohn, M.D., was charged with immoral conduct under a section of the Medical Practice Act. A hearing examiner found that Krohn had engaged in the conduct charged, and those findings were adopted by the Michigan Board of Medicine, which imposed disciplinary sanctions against Krohn. Krohn sought review of the board’s findings in the Oakland Circuit Court, which held that the board was in error and struck all the disciplinary action except for a provision that Krohn undergo a medical regimen related to the health problem which allegedly was responsible for the actions with which he was charged, Francis X. O’Brien, J. The circuit court held that a new standard, that of "good moral character” found in the newly-enacted Public Health Code, should be applied. Krohn had been found by the hearing examiner to be a man of good moral character. The Michigan Board of Medicine appeals. Held:

    1. The trial court erred in applying the newly-enacted standard of "good moral character”. The proper standard was that expressed in the statute in effect at the time of Krohn’s actions. The board, therefore, had applied the proper standard.
    2. Krohn alleged that the failure of the Medical Practice Act to define "immoral conduct” rendered the act vague and therefore violated the constitutional guarantee of due process. The term "immoral conduct” has a definite and well-defined meaning and encompasses innumerable situations. The leeway in the application of the statute is well within the exercise of discretion of the Board of Medicine.
    Reversed, and the order of the Board of Medicine is reinstated.
    References for Points in Headnotes

       73 Am Jur 2d, Statutes § 418 et seq.

       2 Am Jur 2d, Administrative Law §§ 113, 116.

       61 Am Jur 2d, Physicians, Surgeons, and Other Healers §§ 49, 66.

      1. Statutes — Repeal of Statutes — Continued Effect of Statutes.
    The repeal of a statute does not release or relinquish any penalty, forfeiture or liability incurred under the statute unless the repealing act expressly so provides; the repealed statute is to be treated as being in force for the purpose of bringing or sustaining an action for the enforcement of the penalty, forfeiture or liability (MCL 8.4a; MSA 2.214).
    2. Administrative Law — Due Process — Standards.
    Substantive due process requires the existence of reasonably precise standards to be utilized by administrative agencies in the performance of their delegated legislative tasks; such standards must be as reasonably precise as the subject matter requires or permits.
    3. Physicians and Surgeons — Statutes — Medical Practice Act — Immoral Conduct.
    The term "immoral conduct” as used in the former Medical Practice Act has a definite and well-recognized meaning and encompasses innumerable situations; the leeway in the application of the statute is well within the exercise of discretion of the Michigan Board of Medicine (MCL 338.1811[2][h]; MSA 14.542[ll][2][h]).

      Turner, Mead, Wilson & Turner, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Thomas L. Sparks, Assistant Attorney General, for defendant.
    Before: D. C. Riley, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   Per Curiam.

Defendant Michigan Board of Medicine appeals a circuit court order which amended the board’s final order of discipline against plaintiff Don R. Krohn, M.D. After an investigation by the board, the Attorney General had issued a complaint charging plaintiff under § 11 of the Medical Practice Act, MCL 338.1811; MSA 14.542(11). It was alleged that plaintiffs conduct in the early morning hours of October 1, 1976, constituted immoral conduct within the meaning of MCL 338.1811(2)(h); MSA 14.542(H)(2)(h).

A hearing was held on the matter and the hearing examiner found that plaintiff had engaged in the charged conduct which included the uninvited entry of two homes in Bloomfield Hills, Michigan, and a sexual attack on a woman in the second home. Part of this attack was viewed by the woman’s daughter and when a man and another woman tried to rescue the victim they were struck or pushed by plaintiff. In trying to avoid apprehension by the police plaintiff drove his car at a reckless rate of speed through the residential area.

Plaintiff is not personally or professionally acquainted with any of the individuals involved in the incident and he asserts that he has no recollection of his actions. He stated that he had had approximately seven drinks during the prior evening, at a stressful business meeting. A possible explanation for plaintiff’s claimed inability to remember was offered by Robert Douglass, M.D., who stated that transient global amnesia, secondary to a cardiac arrhythmia, may have been caused by a hypoglycemic phase of diabetes triggered by alcohol and stress. The hearing officer found that plaintiff did not know that his cardiac arrhythmia could result in amnesia and acts of this nature.

In her conclusions of law, the hearing officer held that plaintiff had committed acts of immoral conduct and that § ll(2)(h) of the act did not require that an intent to commit the acts be proved. The hearing officer then discussed an amendment to the act which was enacted after the alleged incident. Section 11(2) of the act as amended provides for discipline upon a finding that the licensee was guilty of "unprofessional and dishonest conduct”. Subsection (h) of that section defines this to include conduct "lacking in good moral character” and this term is in turn defined by the statute. Plaintiff was found to be a man of good moral character.

The board adopted the findings of fact and conclusions of law made by the hearing officer except the discussion of the "good moral character” amendment to the act, which the board found to be immaterial to the allegation of the complaint. Based on its finding that the plaintiff’s conduct was within the language of the act as it existed at the time of the incident, the board ordered a 30-day suspension of plaintiff’s license and a three-year period of probation during which plaintiff was ordered to follow a medical regimen related to his health problem.

In reviewing the board’s order the circuit court held that the board was in error and struck all disciplinary action except the imposition of the medical regimen. The court held that the new "good moral character” standard should be applied at all times and that "[w]hile application of the old act by the Board may not be legally or statutorily or unconstitutionally incorrect, it is, in this Court’s opinion, considering all of these matters, deemed to be an abuse of discretion by the Board pursuant to M.C.L.A. 24.306”. The court declined to follow the "general rule” that the act in effect at the time of the alleged incident should be applied, MCL 8.4a; MSA 2.214, finding that it was the intent of the Public Health Code, MCL 333.1101 et seq.; MSA 14.15(1101) et seq., which repealed and replaced the Medical Practice Act, to have the "good moral character” standard relate back.

MCL 8.4a; MSA 2.214 provides:

"The repeal of any statute or part thereof shall not have the effect to release or relinquish any penalty, forfeiture, or liability incurred under such statute or any part thereof, unless the repealing act shall so expressly provide, and such statute and part thereof shall be treated as still remaining in force for the purpose of instituting or sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.” (Emphasis added.)

We find no express enactment by the Legislature that would have justified the board’s use of any statutory language other than that in effect when the incident herein was alleged to have occurred. We hold, therefore, that the board applied the correct legal standard. We consider next plaintiffs contention that the standard as applied is constitutionally infirm.

Plaintiff maintains that the act as it existed at the time of the alleged incident violated the Michigan due process clause because the act lacked clear and definite standards. Plaintiff asserts that the failure of the act to define "immoral conduct” rendered the act unconstitutionally vague.

Substantive due process requires the "existence of reasonably precise standards to be utilized by administrative agencies in the performance of delegated legislative tasks”. State Highway Comm v Vanderkloot, 392 Mich 159, 170; 220 NW2d 416 (1974). The standards must be "as reasonably precise as the subject matter requires or permits”. Osius v St Clair Shores, 344 Mich 693, 698; 75 NW2d 25 (1956). The purpose of this requirement is, as this Court has stated, "to ensure that individuals are not held responsible by the state for conduct they could not reasonably understand to be proscribed”. State Board of Dentistry v Blumer, 78 Mich App 679, 683; 261 NW2d 186 (1977). Further, "requiring reasonably clear guidelines for officials enforcing the laws prevents arbitrary and discriminatory enforcement”. Id.

In Blumer, supra, the Court held that § 18(n) of the dentistry act, MCL 338.218(n); MSA 14.629(18)(n), which gave the dentistry board power to suspend or revoke a dentist’s license "[f]or being guilty of dishonorable or unprofessional conduct in the practice of dentistry”, lacked precision and was insufficient for the board’s exercise of its powers. 78 Mich App 679, 685. In reaching its decision, the Court compared the dentistry act to the Medical Practice Act giving its approval of the Medical Practice Act in the form in which it was applied to the present case.

In 1938, the Michigan Supreme Court upheld language in the Medical Practice Act, as it then existed, which provided for the revocation or suspension of a physician’s license upon a finding that the physician had placed "grossly improbable” statements in advertising. Warnshuis v State Board of Registration in Medicine, 285 Mich 699; 281 NW 410 (1938). The Court found the terms had a "definite and well-recognized meaning”, and noted that it would be quite impossible for the statute to list specifically all of the statements which could be deemed "grossly improbable”. 285 Mich 699, 704.

In the case at hand, plaintiff has challenged the precision of the term "immoral conduct”. We find this to be a term which has a "definite and well-recognized meaning” and one which encompasses innumerable situations. Though the term does admit some leeway in the application of the statute, we find that this is well within the agency’s valid exercise of discretion in applying the statute. See, Coffman v State Board of Examiners in Optometry, 331 Mich 582, 590; 50 NW2d 322 (1951).

The decision of the trial court is reversed and the order of the defendant Board of Medicine is reinstated. No costs, a public question being involved.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CITY OF DETROIT v CITY CLERK OF DETROIT
    Docket No. 51298.
    Submitted June 12, 1980, at Lansing.
    Decided June 13, 1980.
    Plaintiff, the City of Detroit, announced its intention to participate in a nonprofit public corporation and to convey to that corporation Detroit General Hospital and the hospital’s liabilities. This transfer of the hospital was to be made so as to attempt to reduce the city’s financial responsibilities. Various groups drafted an initiative proposal for submission to the electorate which would have required the city to continue operation of the hospital. The initiative petition secured sufficient signatures to place the question on the ballot. Plaintiff commenced an action for a declaratory judgment and injunctive relief against the city clerk of the City of Detroit, seeking an order restraining the city clerk from certifying the petitions for the initiative and declaring the initiative petition to be invalid. Various groups were allowed to intervene as parties defendant in the action. The Wayne Circuit Court, John Hausner, J., after a hearing, issued an order granting declaratory judgment, holding that the initiative proposal was inappropriate in that it involved budgetary matters which, pursuant to the city’s charter, are not subject to the initiative process. The intervening defendants appeal by leave granted. Held:

    1. It was proper for the circuit court, prior to the presentation of the question to the electorate at an election, to rule upon the question of whether the subject of the initiative was a proper subject for an initiative.
    2. Since the proposed conveyance of the hospital by plaintiff was for the purpose of reducing the city’s financial responsibilities, that proposed conveyance constituted a budgetary matter within the meaning of the Detroit City Charter and the Uniform Budget and Accounting Act. Since the Detroit City Charter specifically exempts from the initiative process matters relating to the city’s budget or appropriations, the initiative in question, with its express intent being the continued financial support by the city of the hospital, was not within the scope of the initiative process and was, therefore, null and void.

      References for Points in Headnotes

       42 Am Jur 2d, Initiative and Referendum § 48.

       56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 549.

       42 Am Jur 2d, Initiative and Referendum § 54.

      3. A justiciable controversy existed such that the trial court could properly enter a declaratory judgment. Even though plaintiff presented no proofs, the trial court properly proceeded on the basis of the city clerk’s report and the contents of the initiative petition, both of which had been filed by the city clerk. The trial court properly took judicial notice of the provisions of the city charter.
    Affirmed.
    G. R. Deneweth, J., dissented.
    1. Courts — Initiative — Determination Prior to Election.
    Courts, prior to an election, may properly undertake to rule on a question of whether a matter is a proper subject for initiative or referendum.
    2. Municipal Corporations — Cities — Words and Phrases —■ Budgets — Initiative — City Charters — Statutes.
    The proposed conveyance by the City of Detroit of Detroit General Hospital to a nonprofit public corporation, such transfer being for the purpose of reducing the city’s financial responsibilities, is a budgetary matter within the meaning of the Detroit City Charter and the Uniform Budget and Accounting Act and is thus not a proper matter for an initiative petition brought pursuant to the initiative provision of the Detroit City Charter (Detroit City Charter, §§ 8-204, 12-101, MCL 141.422a[4]; MSA 5.3228[22a][4]).
    3. Judgments — Declaratory Judgment — Justiciable Controversy — Proofs — Judicial Notice.
    A justiciable controversy warranting declaratory judgment exists where the question before the court is the validity of an initiative petition concerning a proposed city ordinance; the report of a city clerk and the contents of the petition itself, along with a court’s power to take judicial notice of the provisions of a city charter, constitute a sufficient basis, in the absence of any dispute as to the facts, upon which a court can determine the validity of an initiative proposal.

      George W. Crockett, Jr., Acting Corporation Counsel, Kay D. Schloff and Nancy P. Vanderbeek, Assistant Corporation Counsels, and Tom Downs,
      Special Assistant Corporation Counsel, for plaintiff.

      Zwerdling & Maurer, (by George M. Maurer, Jr., and David E. Eason), for intervening defendants.
    Amicus Curiae: Philo, Atkinson, Darling, Stein-berg, Harper & Edwards; and Stephen C. Washington, for Amicus Curiae Detroit General Hospital Patient’s Counsel.
    Before: T. M. Burns, P.J., and Beasley and G. R. Deneweth, JJ.

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

   Per Curiam.

Plaintiff, the City of Detroit, has in the past operated Detroit General Hospital pursuant to permissive portions of the city charter. In an attempt to reduce its financial responsibilities, the city announced its intention to participate in a nonprofit public corporation, Detroit Medical Center Corporation, pursuant to the city charter and 1979 PA 217, and to convey Detroit General and its liabilities to the new corporation. Various groups drafted an initiative proposal which would have required the city to continue operation of the old hospital and secured petition signatures sufficient to place the question on the ballot.

On March 27, 1980, the plaintiff filed for a declaratory judgment and injunctive relief in the Wayne County Circuit Court seeking to restrain the city clerk from certifying the petitions for the initiative and to declare that the initiative is invalid. Certain parties were allowed to intervene. After a hearing, the circuit court issued an order granting declaratory judgment, holding that the initiative proposal was inappropriate as it involved budgetary matters which, pursuant to a city charter provision, were not subject to the initiative process and that the petition was therefore ineffective and unlawful. Intervening defendants chose to appeal by application for leave to appeal, which was granted, rather than as of right.

The circuit court judge ruled that the proposal went to the "heart of the budgetary process” and, therefore, was not a proper subject for an initiative under Article 12 of the Detroit City Charter. Article 12 states in relevant part:

"12-101 Initiative and referendum
"The voters of the city reserve the power to enact city ordinances, called the 'initiative,’ and the power to nullify ordinances enacted by the city, called the 'referendum.’ However, these powers do not extend to the budget or any ordinance for the appropriation of money”.

It is not error for a court to rule whether or not a matter is a proper subject for an initiative or referendum. The Michigan Supreme Court on five occasions has ruled, prior to an election, that increases in gasoline or weight taxes were not subject to a referendum. See, County Road Ass’n of Michigan v Board of State Canvassers, 407 Mich 101; 282 NW2d 774 (1979), Boards of County Road Commissioners v Board of State Canvassers, 391 Mich 666; 218 NW2d 144 (1974), Michigan Good Roads Federation v State Board of Canvassers, 333 Mich 352; 53 NW2d 481 (1952), Moreton v Secretary of State, 240 Mich 584; 216 NW 450 (1927), and Detroit Automobile Club v Secretary of State, 230 Mich 623; 203 NW 529 (1925).

Intervening defendants contend that, even if the ruling on the initiative proposal is not an unreasonable interference with the election process, the lower court’s decision that the ordinance sought by the initiative proposal "extends to the heart of the budgetary process” was clearly erroneous. The proposed ordinance provides in part:

"The City shall provide adequate financing for the operation, maintenance, support and control of Detroit General/Detroit Receiving Hospital * * *.
"The City pledges that Detroit General/Detroit Receiving Hospital shall be a premier medical facility, owned, operated, maintained and supported by and for all of the people of the City of Detroit, to serve as a medical refuge”.

The Detroit City Charter defines "budget” in Sec. 8-204:

"1. The budget shall constitute a complete financial plan for the city for the next fiscal year.
"2. The budget shall set forth estimated revenues from all sources and all appropriations. Any surplus or deficit during the fiscal year preceding that covered by the budget shall be entered as an item in the budget.
"3. The total of proposed expenditures shall not exceed the total of estimated revenues.”

MCL 141.422a(4); MSA 5.3228(22a)(4) defines "budget” as follows:

" 'Budget’ means a plan of financial operation for a given period of time, including an estimate of all proposed expenditures from the funds of a local unit and the proposed means of financing the expenditures. Budget does not include any of the following:
"(a) A fund for which the local unit acts as trustee or agent.
"(b) An intragovernmental service fund.
"(c) An enterprise fund.
"(d) A public improvement or building and site fund.
"(e) A special assessment fund.”

We hold that the lower court’s finding that the proposal is budgetary in nature was not clearly erroneous under the above definitions.

Intervening defendants also contend that the lower court committed an abuse of judicial discretion by granting the declaratory judgment. They cite Kuhn v East Detroit, 50 Mich App 502; 213 NW2d 599 (1973), and Ravenna Education Ass’n v Ravenna Public Schools, 70 Mich App 196; 245 NW2d 562 (1976), for the propositions that in a declaratory judgment action plaintiff must prove its case and there must be an actual justiciable controversy. Since in the present case the plaintiff presented no proofs and the proceedings were summary in nature, it is argued that it was an abuse of discretion to grant the declaratory judgment.

This argument is without merit. There were no disputed facts, the city clerk had filed his report and the contents of the petition, and judicial notice could be taken of the city charter. Moreover, there was an actual justiciable controversy: the validity of the initiative proposal was in question.

We do not find the remaining contentions to require reversal.

Affirmed. No costs, a public question being involved.

G. R. Deneweth, J., dissents.


author: D. C. Riley, J.

text:
    PEOPLE v LEWIS
    Docket No. 77-1603.
    Submitted November 13, 1979, at Detroit.
    Decided June 16, 1980.
    Raleigh E. Lewis was convicted of assault with intent to do great bodily harm less than murder in Detroit Recorder’s Court, Michael Connor, J. Defense counsel asked to have the jury individually polled. Inadvertently, one juror was not questioned regarding her finding on the defendant. The defendant failed to notify the court of the oversight at the time the jury was polled. The defendant appeals. Held:

    1. The right to poll the jury is protected by statute but it is not an absolute right and may be waived if not promptly asserted.
    2. Absent manifest injustice, the Court of Appeals will not review a claim of jury polling irregularity where there has been no objection lodged at trial.
    Affirmed.
    1. Juey — Polling — Right — Waiver.
    The right to poll the jury is protected by statute but it is not an absolute right and may be waived if not promptly asserted.
    2. Appeal — Jury — Polling — Irregularities — Review.
    Absent manifest injustice, the Court of Appeals will not review a claim of jury polling irregularity where there has been no objection lodged at trial.
    References for Points in Headnotes

       76 Am Jur 2d, Trial §§ 1122-1127. Accused’s right to poll of jury. 49 ALR2d 619.

       5 Am Jur 2d, Appeal and Error § 545, et seq.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, and Michael R. Mueller and Larry L. Roberts, Assistant Prosecuting Attorneys, for the people._

      Kenneth A. Webb, 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.

   D. C. Riley, J.

After a jury trial commencing on January 17, 1977, defendant was convicted of assault with intent to do great bodily harm less than murder, contrary to MCL 750.84; MSA 28.279. He was sentenced on February 10, 1977, to 4-1/2 to 10 years in prison and now appeals as of right. Defendant poses one question for our consideration — Is reversal mandated when, during a requested polling of the jury, one juror is not questioned regarding her verdict?

This issue arose at the instant trial when the jury returned to announce the verdict. In response to the court clerk’s questioning, all of the members of the jury agreed that they had found defendant guilty of the charged crime. Defendant’s counsel asked to have the jury individually polled and this was then done. However, one juror inadvertently was not questioned regarding her finding on defendant. Defendant asks that we reverse his conviction and grant him a new trial based on this oversight.

It is well settled in this state that either party may request a polling of the jury following the verdict’s announcement.

".2 Return; Poll. The jury agreeing on a verdict shall return into court and announce their verdict. A party may require a poll which shall be by the clerk asking each juror if it is his verdict. If any juror expresses disagreement on such poll and the number of those agreeing is less than required by law, the jury shall be sent out for further deliberation; otherwise the verdict is complete and the jury shall be discharged.” GCR 1963, 512.

While the right to poll the jury is protected by statute, it is not an absolute right and may be waived if not promptly asserted. People v Johnson, 58 Mich App 165, 169; 227 NW2d 272 (1975), People v Rushin, 37 Mich App 391, 399; 194 NW2d 718 (1971). This scheme corresponds to the view that errors which could have been corrected at trial are waived in the absence of an objection. Johnson, supra.

"Counsel cannot sit back and harbor error to be used as an appellate parachute * * *.” People v Brocato, 17 Mich App 277, 305; 169 NW2d 483 (1969).

Although there is no dispositive Michigan authority, we believe that a similar philosophy should apply to polling defects as utilized in other jurisdictions. In both Illinois and California for instance, failure to object to incomplete polling waives the issue for appeal. See People v Johnson, 18 Ill App 219; 309 NE2d 619 (1974), People v Lessard, 58 Cal 2d 46; 25 Cal Rptr 78; 375 P2d 46 (1962).

For our own jurisdiction, we select the procedure for testing jury verdicts followed in People v Clarence Williams, 37 Mich App 219; 194 NW2d 527 (1971). In that case, the trial court determined that there was a unanimous verdict from the jury’s raising of hands, rather than from individual polling. Although this Court admitted that the latter procedure was preferable, it found, absent an objection or proof of manifest injustice, that the issue was waived on appeal.

In the case sub judice, there was an oversight in polling one of the jurors. This error easily could have been corrected if the defendant had brought it to the trial court’s attention, but this was not done. We hold that, absent manifest injustice, we will not review a claim of jury polling irregularity when there has been no objection lodged at trial. In the instant case, we find no manifest injustice based on the incomplete polling. Prior to the separate polling, the jury replied en masse that they had found defendant guilty as charged. Thus, any inadvertent error in the individual polling was harmless.

Affirmed.

       This oversight apparently occurred due to the complexity of this trial which involved multiple defendants with multiple verdict possibilities and a resulting cumbersome polling process. The omission in this case then was evidently unintentional.


author: E. A. Quinnell, J. D. C. Riley, J.

text:
    PEOPLE v KING
    Docket No. 77-1690.
    Submitted November 13, 1979, at Detroit.
    Decided June 16, 1980.
    Michael King was charged with murder and was convicted of manslaughter and assault with intent to do great bodily harm less than murder, Recorder’s Court of Detroit, Michael J. Connor, J. Defendant appeals, alleging, among other things, that the trial court erred by instructing the jury on manslaughter and that the prosecutor’s failure to turn over a witness’s statement pursuant to a discovery order was error. Held:

    1. There was evidence from which the jury could have concluded that the circumstances of the killing created a reasonable provocation sufficient to negate malice. The instruction on manslaughter was, therefore, proper.
    2. The prosecutor’s violation of the discovery order requires reversal and remand for a new trial on both manslaughter and assault.
    Reversed and remanded.
    D. C. Riley, J., concurred in part and dissented in part. She would hold that it was error to instruct the jury on manslaughter as there were no mitigating circumstances surrounding the defendant’s actions to warrant reducing the murder charge to manslaughter. A retrial on the charge would violate the defendant’s right against double jeopardy; therefore, the manslaughter conviction should be vacated. Suppression of the witness’s statement in violation of the discovery order was error. The defendant should be offered a new trial on the assault charge.

      References for Points in Headnotes

       40 Am Jur 2d, Homicide §§ 42, 51, 438, 575.
    [2, 3, 6] 40 Am Jur 2d, Homicide § 44 et seq.

       40 Am Jur 2d, Homicide § 245 et seq.

       40 Am Jur 2d, Homicide §§ 498, 500.

       40 Am Jur 2d, Homicide §§ 27 et seq., 54 et seq., 507.

       40 Am Jur 2d, Homicide § 525 et seq.

       40 Am Jur 2d, Homicide § 183 et seq.

       63 Am Jur 2d, Prosecuting Attorneys § 27.
    Right of accused in state courts to inspection or disclosure of evidence in possession of prosecution. 7 ALR3d 8.
    Right of defendant in criminal case to inspection of statement of prosecution’s witness for purpos of cross-examination or impeachment. 7 ALR3d 181.

      Opinion of the Court
    1. Homicide — Manslaughter — Provocation — Criminal Law.
    Provocation is not an element of voluntary manslaughter because there is no such thing as a "negative element” of an offense, and provocation negates malice and reduces a killing that would otherwise be murder to manslaughter.
    2. Homicide — Manslaughter — Murder — Lesser Included Offenses — Criminal Law.
    Voluntary manslaughter is not a necessarily included offense within the crime of murder; however, voluntary manslaughter may be a lesser included offense if the evidence presented at trial would support a verdict of guilty of voluntary manslaughter.
    3. Criminal Law — Evidence — Jury — Lesser Included Offenses.
    A jury is free to disregard any of the evidence presented by the prosecution and may find a defendant guilty of any lesser included offense supported by the evidence and as to which the defendant had notice even where the jury could have found that the essential elements of the charged offense were proven beyond a reasonable doubt.
    4. Homicide — Manslaughter — Murder — Instructions to Jury — Criminal Law.
    A trial court properly instructed the jury in a murder case on the offense of voluntary manslaughter where there was evidence from which the jury could have concluded that the circumstances of the killing created a provocation sufficient to negate malice.
    5. Criminal Law — Instructions to Jury — Lesser Included Offenses.
    The prosecution, as well as the defense, has the option of precluding "all or nothing” verdict choices by requesting jury instructions on lesser included offenses as long as the defendant has fair notice of the inclusion of the lesser offense and inclusion of the lesser offense is supported by the evidence.

      Concurrence in Part, Dissent in Part by D. C. Riley,’J.
    6. Homicide — Murder — Manslaughter — Lesser Included Offenses.

      Manslaughter is not necessarily a lesser included offense of murder; there must be sufficient proof adduced at trial to support a verdict of guilty of manslaughter.

      7. Homicide — Manslaughter — Aiders and Abettors.

      Manslaughter is an intentional killing committed under passionate circumstances without malice and before tempers have had a chance to cool; an aider and abettor charged with manslaughter must be proven either to have shared that state of mind with the principal or to have participated in the criminal act with knowledge of the principal’s intent.

    8. Homicide — Murder — Manslaughter — Instructions to Jury.

      Instructing the jury, in a trial for murder, on the lesser offense of manslaughter was error where the facts show no mitigating circumstances surrounding the defendant’s actions which would warrant reducing the murder charge to manslaughter.

      9. Homicide — Murder — Manslaughter — Remand — Double Jeopardy.

      Conviction of the lesser offense of manslaughter in a murder case operates as an acquittal of the greater offense of murder, therefore a remand for a retrial on a charge of manslaughter would violate the defendant’s right not to be twice placed in jeopardy.

    10. Criminal Law — Witnesses — Pretrial Statements — Discovery.

      A prosecutor’s suppression of a witness’s pretrial statements that contradict statements made at trial and which would have been material to trial preparation is prejudicial, and if a judge has ordered that the pretrial statements be disclosed and the prosecutor has refused the charges against the defendant may be dismissed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor’s Repeat Offenders Bureau, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.

      Derrick A. Carter and Ronald J. Bretz, Assistant State Appellate Defenders, 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.

   E. A. Quinnell, J.

We are all agreed that the evidence was sufficient to justify the binding over of the defendant for trial on the charge of first-degree murder and for the submission of that issue to the jury. We are also agreed that the trial court did not err by admitting the knife into evidence and are further agreed that the prosecutor’s violation of the discovery order requires us to reverse the convictions and remand for a new trial. However, the majority votes to remand for a new trial on the manslaughter charge as well as the assault charge.

A. There was record evidence from which a rational jury could find beyond a reasonable doubt that the defendant participated in this killing with malice and with premeditation. Thus, as to first-degree murder, the requirements of People v Hampton, 407 Mich 354; 285 NW2d 284 (1979), have been met.

Analysis of voluntary manslaughter as a lesser included offense involves the application of somewhat different standards. The Supreme Court has wrestled with this concept previously.

"Part of the confusion concerning lesser included offenses appears to result from analysis which treats as positive elements of a crime such negative concepts as 'unarmed’. Considered in the context of lesser included offenses, 'unarmed’ is the absence of the element of use of a weapon. It is not a distinct, separate element. Elements are, by definition, positive. A negative element of a crime is a contradiction in terms. Adding the description 'unarmed’ to robbery adds nothing. 'Robbery’ and 'unarmed robbery’ are the same offense.” People v Chamblis, 395 Mich 408, 424; 236 NW2d 473 (1975). .

In People v Doss, 406 Mich 90, 96-99; 276 NW2d 9 (1979), the Supreme Court considered the meaning of "without malice” in involuntary manslaughter. The Court held that there is no such thing as a "negative element”. The prosecution does not have to present proof of the absence of malice to establish the elements of involuntary manslaughter. The Court noted:

"While the absence of malice is fundamental to manslaughter in a general definitional sense, it is not an actual element of the crime itself which the people must establish beyond a reasonable doubt.” Doss, supra, 99.

By the same reasoning, provocation is not an element of voluntary manslaughter; provocation negates malice and reduces a killing that would otherwise be murder to manslaughter. The Supreme Court discussed it in terms of reducing murder in People v Townes, 391 Mich 578, 589; 218 NW2d 136 (1974):

"It requires that a defendant be found to have had an intent to kill or an intent to do serious bodily harm to the deceased. To this extent the offense parallels the crime of murder; but, as noted above, it is distinguished from murder by an absence of malice. To reduce a homicide to voluntary manslaughter the fact finder must determine from an examination of all of the circumstances surrounding the killing that malice was negated by provocation and the homicide committed in the heat of passion. People v Scott, 6 Mich 287, 295 (1859).”

The Supreme Court’s holding of voluntary manslaughter to be a cognate — rather than necessarily included — lesser offense of murder does not alter this analysis. The Court reasoned:

"The absence of mitigating circumstances need not be established in order to convict one of first- or second-degree murder. Consequently, it cannot be said that voluntary manslaughter is a necessarily included offense within the crime of murder; it is incorrect to state that it is impossible to commit first- or second-degree murder without having first committed manslaughter.” People v Van Wyck, 402 Mich 266, 269; 262 NW2d 638 (1978).

Provocation, in its role in distinguishing manslaughter from murder, may be totally lacking in some cases. A homicide, for example, may be unquestionably murder, but the defendant may assert an alibi, in which case there would be no room for voluntary manslaughter as an included offense.

B. However, voluntary manslaughter may be a lesser included offense if the evidence presented at trial would have supported a verdict of guilty of voluntary manslaughter. People v Van Wyck, supra, People v West, 408 Mich 332; 291 NW2d 48 (1980). Moreover, a conviction for voluntary manslaughter does not necessarily require that the prosecution establish by credible evidence beyond a reasonable doubt that the defendant was provoked, for such a requirement would be inconsistent with the theory of lesser included offenses.

The underlying premise of lesser included offense analysis is that a jury is free to disregard any of the proof presented by the prosecution. People v Chamblis, supra, 419-425. Thus, in this case, the jury was perfectly within its proper sphere in determining that the prosecution’s proofs did not establish malice (or premeditation) because the defendant was provoked, despite strong prosecution proofs to the contrary.

C. Therefore, once the Hampton, supra, requirements had been met as to the charge of murder, permitting the jury to consider a lesser included offense of voluntary manslaughter must proceed under a Chamblis analysis, and such consideration requires only a modicum of evidence of provocation.

In People v Van Wyck (On Remand), 83 Mich App 581, 583, 582; 269 NW2d 233 (1978), this Court noted tersely: "While the record does not conclusively establish mitigating circumstances, it does not clearly establish a lack of passion”, and "The record contains slight but sufficient evidence to present a jury question.” The factual situation in People v West, supra, is also illustrative.

The record in the instant case also presented "slight but sufficient” evidence of provocation. Defendant King and his cohorts encountered the victim’s group. There had been bad blood between codefendant Houston and Kevin White, the deceased. Knives were brandished at the first confrontation. After this subsided temporarily, White’s group followed Houston’s and were said to have been carrying bricks. Dogs belonging to White and Silver began barking at Houston’s group and Houston threatened to stab the dogs. Silver then stated that although the dogs were not attack dogs, they would protect the family if needed. The fracas continued to escalate. Defendant King pointed a gun at Silver and demanded that he call off the dogs. Houston and White approached each other in the street, each carrying a weapon. There seemed to be a momentary truce as White dropped his brick and Houston put away his knife. Silver then attempted to enter the fray; but defendant, still holding him at gunpoint, ordered him back. Houston then pulled his knife out again and stabbed White, inflicting the fatal blow on the second try. Houston then turned his attention to Silver and stabbed him. King then hit Silver in the eye with the gun. From this evidence of a gang confrontation escalating into a homicide, the jury could have concluded that the circumstances created a reasonable provocation sufficient to negate malice. See Hurd v The People, 25 Mich 405 (1872), People v Milhem, 350 Mich 497; 87 NW2d 151 (1957).

D. Defendant objected to the inclusion of voluntary manslaughter as a lesser offense; the prosecution requested the instruction. The prosecution, as well as the defendant, has the option of precluding "all or nothing” verdict choices as long as the inclusion of the lesser offense does not create notice problems and is supported by the evidence. People v Chamblis, supra.

Reversed and remanded for a new trial as to both manslaughter and assault with intent to do great bodily harm less than the crime of murder.

Bronson, P.J., concurred.

D. C. Riley, J.

(concurring in part; dissenting in part). Defendant was convicted by a jury of manslaughter, in violation of MCL 750.321; MSA 28.553, and assault with intent to do great bodily harm less than murder, in violation of MCL 750.84; MSA 28.279. From a sentence of 5 to 15 years imprisonment for manslaughter and 5 to 10 years for assault, defendant appeals as of right.

Defendant poses four arguments on appeal, two of which I believe are meritorious. It is first asserted that the trial court erred in instructing the jury on manslaughter. Manslaughter is not necessarily a lesser included offense of murder; there must be sufficient proof adduced at trial to support a guilty verdict on that charge. People v Van Wyck, 402 Mich 266, 268; 262 NW2d 638 (1978).

Manslaughter is defined as an intentional killing, committed under passionate circumstances without malice and before tempers have had a chance to cool. MCL 750.329; MSA 28.561, People v Younger, 380 Mich 678, 681; 158 NW2d 493 (1968). An aider and abettor who is charged with manslaughter, as is the instant defendant, must be proven either to have shared this state of mind with his principal or to have participated in the criminal act with knowledge of the principal’s intent. People v Tolbert, 77 Mich App 162, 167; 258 NW2d 176 (1977).

There is evidence in the case sub judice to indicate that neither defendant nor the principal, Houston, possessed the state of mind necessary for manslaughter. Houston displayed a knife at the first confrontation with the victim’s group. Then, after he was attacked by dogs belonging to the victim and his friends, Houston pulled out his knife once more, threatening to stab the dogs. When they were called off, Houston put away his knife, only to pull it out again a few minutes later and fatally stab the victim, White. There was testimony indicating that Houston then stated that he had planned to kill White for a long time.

I find no credible evidence to indicate any provocation of Houston that was not followed by a cooling off period. Thus, I believe it was error to instruct on manslaughter in Houston’s case.

Since I conclude that Houston did not possess the necessary criminal intent for manslaughter, defendant’s manslaughter intent cannot depend on that of the principal, Houston. The evidence must then be examined to determine if defendant possessed the requisite intent on his own. See People v Folkes, 71 Mich App 95, 97-98; 246 NW2d 403 (1976). King aided in White’s killing by holding would-be defenders at bay with a shotgun while Houston stabbed White. There were no mitigating circumstances surrounding his actions to warrant reducing the murder charge to manslaughter. Hence, I believe that it was reversible error to instruct the jury on the lesser included offense of manslaughter. See People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975).

To remedy this faulty instruction, there cannot be a reversal and remand for new trial. Conviction of the lesser offense, here manslaughter, operates as an acquittal on the greater offense, murder, so any retrial would violate defendant’s double-jeopardy protection. See People v Hilliker, 29 Mich App 543; 185 NW2d 831 (1971). Therefore, I would advocate vacation of defendant’s manslaughter conviction.

Defendant further asserts that there is reversible error based on the prosecutor’s violation of a discovery order, specifically, failing to turn over a witness’s statement. Both the majority and I agree with defendant’s contention.

Discovery is becoming an increasingly important aspect of criminal trials. People v Thornton, 80 Mich App 746, 750; 265 NW2d 35 (1978), People v Aldridge, 47 Mich App 639, 644; 209 NW2d 796 (1973). To ensure the observance of discovery rules and to compel compliance with discovery orders, trial judges must be provided with tools of enforcement. See People v Owens, 74 Mich App 191; 253 NW2d 706 (1977). When a prosecutor has suppressed pretrial statements that contradict statements made at trial and which would have been material to trial preparation, nondisclosure must be considered prejudicial. Thornton, supra, 750-752. If a judge has ordered that these statements be turned over and a prosecutor has refused, the charges against the defendant may be dismissed. Owens, supra.

In the instant case, the witness’s statement was material to defense preparation; therefore, it was error to suppress it contrary to the discovery order. Defendant must be afforded a new trial on the assault with intent to do great bodily harm less than murder charge. The prosecutor should turn over the witness’s statement prior to this new trial or else risk dismissal of the charges against the defendant.

Defendant’s final two contentions need only be addressed briefly. Both the majority and I agree that there was sufficient evidence adduced to support the binding over of defendant for trial and the instructing of the jury on the charge of first-degree murder. See People v Gill, 43 Mich App 598, 603; 204 NW2d 699 (1972), People v Poplar, 20 Mich App 132, 136-137; 173 NW2d 732 (1969). Lastly, the trial court did not err in admitting into evidence a knife seized from the defendant, as it was relevant to the issue of defendant’s intent. See People v Panes, 58 Mich App 268, 271; 227 NW2d 312 (1975).

I would reverse in part and vacate in part._

       The discovery error is equally applicable to the manslaughter conviction, however, I believe that the protection against double jeopardy precludes any new trial on that charge.


author: Bashara, P.J.

text:
    WEBB v TRAVELERS INSURANCE COMPANY
    Docket No. 78-640.
    Submitted February 19, 1980, at Detroit.
    Decided June 16, 1980.
    James Webb, an employee of Jay-Dee Contracting Company, was injured in a tunnel cave-in while cleaning a mining machine leased by Jay-Dee from Don Gargaro Company, Inc. At the time of the cave-in, Mr. Webb was standing near the machine, which was not equipped with an overhead shield. Mr. Webb and his wife, Helen Webb, brought suit in Wayne Circuit Court against Travelers Insurance Company for failure to make adequate safety inspections and against Don Gargaro Company, Inc., alleging product liability and implied warranty. The jury returned a verdict in favor of plaintiffs against Travelers, finding that it breached its duty to make adequate inspections, and in favor of Don Gargaro on the products liability claim. The court, William J. Giovan, J., had previously directed a verdict in favor of Don Gargaro on the count based on implied warranty. Plaintiffs appeal. Held:

    1. Plaintiffs complained that the jury instructions injected the concept of assumption of the risk in instructions on contributory negligence. No prejudice to a plaintiff in a personal injury action resulted from an instruction on contributory negligence which injected the theory of assumption of risk where the jury found liability as to one defendant and no cause of action as to another.
    2. Plaintiffs also alleged that the trial court erred in failing to give to the jury their theory of the case in toto. A jury instruction must be considered in its entirety and if, on balance, the theories of the parties and the applicable law are adequately and fairly presented, the Court of Appeals will not find reversible error for failure to present in toto a party’s theory of the case.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 810 et seq. 57 Am Jur 2d, Negligence § 247 et seq.

       5 Am Jur 2d, Appeal and Error § 894.

       8 Am Jur 2d (Rev), Bailments § 157. 63 Am Jur 2d, Products Liability § 6.
    Application of warranty provisions of Uniform Commercial Code to bailments. 48 ALR3d 668.

      3. Liability under an implied warranty of suitability does not attach to a bailor for injuries resulting from an improper use of the bailed chattel over which the bailor had no control. The trial court did not err in directing a verdict on the implied warranty theory.
    Affirmed.
    1. Trial — Negligence — Instructions to Jury — Assumption op Risk.
    No prejudice to a plaintiff in a personal injury action resulted from an instruction on contributory negligence which injected the theory of assumption of risk where the jury found liability as to one defendant and no cause of action as to another.
    2. Appeal — Instructions to Jury — Theories op Parties — Court Rules.
    A jury instruction must be considered in its entirety and if, on balance, the theories of the parties and the applicable law are adequately and fairly presented, the Court of Appeals will not find reversible error for failure to present in toto a party’s theory of the case (GCR 1963, 516.7[c]).
    3. Products Liability — Bailments — Personal Property.
    Liability under an implied warranty of suitability does not attach to a bailor for injuries resulting from an improper use of the bailed chattel over which the bailor had no control.

      The Jaques Admiralty Law Offices, P.C. (by Robert E. Swickle), for plaintiffs.

      Ivin E. Kerr and Mark D. Willmarth, for defendant Travelers.

      Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. (by Sharon C. Ranucci, for defendant Don Gargaro, Inc.
    Before: Bashara, P.J., and D. F. Walsh and T. M. Burns, JJ.
   Bashara, P.J.

Plaintiff initiated this suit to recover for injuries sustained as a result of a cave-in which occurred in a tunnel where he was working. A jury returned a verdict in favor of plaintiff against defendant Travelers Insurance Company based on a finding that Travelers breached its duty to make adequate safety inspections. In a products liability suit against defendant Don Gargaro Company, Inc., based on negligence, the jury found no cause of action. The trial court had previously directed a verdict in favor of Don Gargaro in a count based on implied warranty.

Plaintiff was an employee of the Jay-Dee Contracting Company, which was constructing a tunnel for the State of Michigan. At the time of the accident, plaintiff was assigned to clean a certain Scott mining machine which had been leased by Jay-Dee from Don Gargaro. The machine was not in operation due to a broken blade in the cutting cylinder. Plaintiff was injured when he was struck by a large piece of mud when the tunnel caved in. Plaintiff was standing near the machine, which was not equipped with an overhead shield.

On appeal, plaintiff raises several issues relating to both procedural and substantive aspects of the trial below. (Further facts will be provided as required to develop these issues.)

Plaintiff first contends that the trial court erred by injecting the theory of assumption of risk in its charge to the jury on contributory negligence.

Michigan no longer subscribes to the doctrine of assumption of risk. Feigner v Anderson, 375 Mich 23; 133 NW2d 136 (1965). Consequently, it must not be used as a corollary of or a supplement to contributory negligence. Feigner v Anderson, supra, 56.

We have examined the lower court’s charge and find that it closely parallels the Michigan Standard Jury Instructions with respect to contributory negligence, as set forth in SJI 21.02. Moreover, in the case sub judice, liability was determined in favor of plaintiff as against Travelers. In order to reach this result, the jury must necessarily have found that plaintiff was not contributorially negligent.

The fact that the jury found no cause of action against Don Gargaro does not militate against this conclusion. Our examination of the jury instructions regarding contributory negligence indicates that the court gave the same instruction as to both defendants. The jury was never informed that plaintiff might be contributorially negligent with respect to one defendant and not the other. We are, therefore, unable to find any prejudice resulting to plaintiff and conclude that this argument is without merit. Moore v Spangler, 401 Mich 360; 258 NW2d 34 (1977).

Plaintiff next argues that the lower court erred by failing to present his theory of the case in- toto.

This Court will not disturb a lower court’s jury charge where, considered in its entirety, the party’s theory and the applicable law are adequately and fairly presented. Berlin v Snyder, 89 Mich App 38; 279 NW2d 322 (1978), Jones v Morgan, 58 Mich App 455; 228 NW2d 419 (1975), lv den 394 Mich 775 (1975).

GCR 516.7(c) further provides that a court is required only to present the material substance of a party’s theory.

Our examination of the record indicates that GCR 516.7(c) was complied with and, hence, we find no error.

Plaintiff finally contends that the trial court erred in directing a verdict in favor of defendant Don Gargaro as to the products liability claim based on a breach of an implied warranty.

The record reveals unrebutted testimony that plaintiffs employer, Jay-Dee Contractors, was extremely familiar with various types of mining machines. Jay-Dee’s vice president testified that his company had requested and leased a specific machine from Gargaro. There was no discussion between Jay-Dee and Gargaro as to the specific use for the machine.

There is no allegation that the machine malfunctioned, or that it did not perform the function for which it was designed. Plaintiffs theory is that the machine was defective because it was not equipped with an overhead shield. That no shield was attached was open and obvious. That a dangerous condition may have existed because of the use to which Jay-Dee put the machine is certainly open to question.

However, Gargaro stood, at best, in the position of bailor under the facts of this case. The trial judge correctly relied on the case of Jones v Keetch, 388 Mich 164, 168; 200 NW2d 227 (1972), wherein the Court, quoting from 8 Am Jur 2d, Bailments, § 144, pp 1039-1040, stated:

"It is the general rule that, in the absence of an agreement to the contrary, the bailor of a chattel to be used by the bailee for a particular purpose known to the bailor, impliedly warrants the reasonable suitability of the chattel for the bailee’s known intended use of it. The rule of implied warranty has been adopted by statute in some jurisdictions. The implied warranty is said to be raised by the delivery of the chattel to the bailee, where the quality or fitness of the article for the use specified in not visible and the defect is not discernible by an ordinary observer.”

The case of Campo v Scofield, 301 NY 468; 95 NE2d 802 (1950), is frequently cited for the proposition that recovery on the theory of negligent design is severely limited where the danger is patent or obvious. While that citation has some limited application to the case at bar, the danger was not in the design or functioning of the machine but the use to which it was put. It is safe to conclude that, where a bailor leases a machine to a bailee and injury results, liability cannot attach to the bailor as a result of an improper use over which the bailor has no control.

Affirmed. Costs in favor of defendants.

       Both defendants had claimed that plaintiff was contributorially negligent in working in an area of the tunnel close by the machine.