author: M. E. Clements, J.

text:
    BOROVOY v BURSAR REALTY CORPORATION
    Docket Nos. 77-4122, 77-4123.
    Submitted June 22, 1978, at Lansing.
    Decided November 6, 1978.
    Leave to appeal applied for.
    Matthew Borovoy and Sol Luft brought actions against Bursar Realty Corporation and other named defendants claiming that the defendants sold the plaintiffs limited partnership interests in Lone Pine Associates, a partnership intending to construct an office building, in violation of Michigan’s blue sky law. The cases were consolidated for trial. The Oakland Circuit Court, Alice L. Gilbert, J., granted a default judgment in favor of the plaintiffs and against defendant Bursar Realty Corporation. Defendant Bursar Realty Corporation appeals. Held:

    A default judgment may be entered when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by the rules regarding default judgments. A defendant must file his answer within 20 days after personal service of the summons and complaint. An amended pleading supersedes the former pleading, therefore, summary judgment was proper here since the defendant failed to answer the plaintiffs second amended complaint within the time allotted. The decision as to whether a default judgment should be set aside is discretionary and will not be reversed on appeal unless a clear abuse of discretion is shown. A default judgment may be set aside only if good cause is shown and an affidavit of facts showing a meritorious defense is filed. Defendant herein failed to show the requisite good cause. The tax consequences as a result of the purchase do not enter into the computation of damages under the Uniform Securities Act.
    Affirmed.
    1. Judgment — Default Judgments — Affirmative Relief — Failure to Plead — Court Rules.
    A default judgment may be entered when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by the rules regarding default judgments (GCR 1963, 520.1).

      References for Points in Headnotes
    [1] 47 Am Jur 2d, Judgments § 1165, 1166, 1168, 1181.
    [2] 47 Am Jur 2d, Judgments § 1171.
    [3, 5] 4 Am Jur 2d, Appeal and Error §§ 115, 127.
    [4] 47 Am Jur 2d, Judgments §§ 1173-1185.
    [6] 60 Am Jur 2d, Partnership § 390.

      2. Pleading — Summons—Complaint—Answer—Amended Pleadings — Court Rules.
    A defendant must file his answer within 20 days after personal service of the summons and a copy of the complaint; an amended pleading supersedes the former pleading, therefore, where a defendant fails to answer a plaintiffs second amended complaint within the time allotted, entry of a default judgment is proper (GCR 1963, 108.1, 118.1).
    3. Judgment — Default Judgments — Setting Aside Default — Discretion — Abuse of Discretion — Appeal and Error.
    The decision as to whether a default judgment should, be set aside is discretionary, and will not be reversed on appeal unless a clear abuse of discretion is shown.
    4. Judgment — Default Judgments — Setting Aside Default — Regular Entry.
    The established policy of the courts in this state is against setting aside defaults which are regularly entered.
    5. Judgment — Default Judgments — Setting Aside Default — Good Cause — Affidavits—Court Rules.
    A default judgment may be set aside only if good cause is shown and an affidavit of facts showing a meritorious defense is filed; good cause includes (1) a substantial defect or irregularity in the proceedings upon which the default was based, (2) a reasonable excuse for failure to comply with the requirements which created the default, or (3) some other reason showing that manifest injustice would result from permitting the default to stand (GCR 1963, 520.4).
    6. Damages — Tax Consequences — Civil Liability — Uniform Securities Act — Statutes.
    The tax consequences as a result of the purchase of a limited partnership interest do not enter into the computation of damages resulting from such purchase under the statute regarding civil liability under the Uniform Securities Act (MCL 451.810; MSA 19.776[410]).

      Ginn, Kramer & Jacobson, P.C., for plaintiff.

      Dykema, Gossett, Spencer, Goodnow & Trigg (by Joseph C. Basta), for defendant.
    Before: R. B. Burns, P.J., and D. F. Walsh and M. E. Clements, JJ.

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

   M. E. Clements, J.

Defendant Bursar Realty Corporation appeals as of right from an October 13, 1977, order of Oakland County Circuit Court Judge Alice L. Gilbert, denying defendant Bursar Realty’s motion to set aside a default judgment entered on September 8, 1977.

Plaintiffs filed complaints in October, 1974 against defendants, alleging that in 1972, defendants had sold plaintiffs limited partnership interests in Lone Pine Associates, a partnership intending to construct an office building, in violation of the Michigan blue sky law, MCL 451.801 et seq.; MSA 19.776(401) et seq.

Defendant Bursar Realty Corporation responded with a motion for accelerated judgment. Bursar claimed that plaintiffs’ action was barred by the applicable statute of limitations, MCL 451.810(e); MSA 19.776(410)(e).

A hearing on the defendant’s motion was held before Oakland County Circuit Court Judge William R. Beasley, Judge Gilbert’s predecessor, in January, 1975. The parties disputed the date on which the partnership agreement was actually signed and executed. Judge Beasley suggested that the matter be deferred pending discovery. Judge Beasley also indicated that the defendant, Bursar Realty, could renew its motion for accelerated judgment at a later date. No formal order denying the defendant’s motion was ever filed.

Plaintiffs filed a first amended complaint in January, 1975 and a second amended complaint in May, 1975. The effect of the amended complaints was to avoid the statute of limitations problem. Defendant Bursar Realty did not answer the amended complaints.

On November 19, 1976, plaintiffs moved for entry of a default judgment against defendant Bursar Realty Corporation. The court granted the motion on September 8, 1977, and awarded each plaintiff the $78,500 plus interest, costs, and attorney fees that each plaintiff had sought to recover from defendant Bursar Realty Corporation.

Defendant Bursar Realty Corporation brought a motion to set aside the default judgment or, in the alternative, to amend the amount of damages. Defendant argued that because plaintiffs had entered into the agreement with Lone Pine Associates to obtain tax losses, the amount of their loss was less than the $78,500 plaintiffs had invested in Lone Pine Associates. The trial court rejected this argument.

I. Was the default judgment erroneously entered?

According to GCR 1963, 520.1, a default may be entered when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend "as provided by these rules”.

GCR 1963, 108.1 requires a defendant to file his answer within 20 days after personal service of the summons and a copy of the complaint. GCR 1963, 118.1 provides that an amended pleading supersedes the former pleading. Therefore, as the defendant Bursar Realty failed to answer the plaintiffs’ second amended complaint within the time allotted, entry of a default judgment was proper.

The defendant argues that its motion for accelerated judgment based on the statute of limitations defense had never been denied, therefore, according to GCR 1963, 108.3(1), the time for filing an answer was extended until 20 days after denial of the motion.

It is true that no formal order denying the defendant’s motion was ever entered, but the trial court implicitly denied the defendant’s motion at the conclusion of the January 22, 1975, hearing.

The defendant relies on Hosner v Brown, 40 Mich App 515; 199 NW2d 295 (1972), lv den 388 Mich 758 (1972), which held that the time for an answer does not begin to run until after the defendant’s order is signed and filed by the trial court, and that the subsequent default judgment based on failure to answer must be set aside as defective. However, Hosner can be distinguished on its facts. In Hosner, the defendant’s motion to dismiss was heard on April 19, 1968, and denied orally. On April 30, 1968, the plaintiff submitted an order denying the defendant’s motion, but that order was never signed. On May 15, 1968, the plaintiff entered a default judgment, because the defendant had failed to answer the original complaint within 20 days of entry of denial of its motion.

In the case at bar, however, the trial judge orally denied the defendant’s motion on January 22, 1975. The plaintiffs filed their second amended complaint on May 22, 1975. This amended complaint superseded the original complaint. Bursar Realty did not answer the second amended complaint. The plaintiffs moved for a default judgment against Bursar Realty in November of 1976, and the actual default was entered in September, 1977. The record contains no reason for the defendant’s failure to take action on the amended pleading during that protracted time period.

II. Did the trial court err in refusing to set aside the default judgment?

The decision as to whether a default judgment should be set aside is discretionary, and will not be reversed on appeal unless a clear abuse of discretion is shown. Milinsky v Schmidt, Ellis & Associates, Inc, 48 Mich App 192, 197; 210 NW2d 367 (1973). The established policy of the courts in this state is against setting aside defaults which are regularly entered. Zinn v Fischer Distributing Co, 27 Mich App 591, 593; 183 NW2d 859 (1970), lv den 384 Mich 796 (1971).

GCR 1963, 520.4 provides that a default judgment may be set aside "only if good cause is shown and an affidavit of facts showing a meritorious defense is filed”. The "good cause” requirement was explained in Harrison v VMC Building Corp, 71 Mich App 458, 460; 248 NW2d 584 (1976):

"Commenting on this requirement, the authors in 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Comments, p 662, state:
" 'Good cause within the meaning of this provision would seem to include (1) a substantial defect or irregularity in the proceedings upon which the default was based, (2) a reasonable excuse for failure to comply with the requirements which created the default, or (3) some other reason showing that manifest injustice would result from permitting the default to stand.’ ”

The defendant herein has failed to show the requisite good cause. Furthermore, the defendant’s statute of limitations defense is not applicable to the second amended complaint.

The order denying the motion to set aside the default is hereby affirmed.

III. Did the trial court err in its award of damages?

The Michigan blue sky act, MCL 451.801 et seq.; MSA 19.776(401) et seq., provides in § 410 that a person violating the statute:

" * * * Is liable to the person buying the security or commodity contract from him, who may sue either at law or in equity to recover the consideration paid for the security or commodity contract, together with interest at 6% per year from the date of payment, costs and reasonable attorneys’ fees, less the amount of any income received on the security or commodity contract, upon the tender of the security or commodity contract, or for damages if he no longer owns the security or commodity contract. Damages are the amount that would be recoverable upon a tender less the value of the security or commodity contract when the buyer disposed of it and interest at 6% per year from the date of disposition.”

The defendant does not contest the amount of money the plaintiffs invested in Lone Pine Associates. Instead, the defendant presents the novel argument, for which no authority is cited, that the valuation of the plaintiffs’ investment should depend on the tax benefits which they may have received. We reject that argument. Tax consequences as a result of the purchase do not enter into the computation of damages under the statute.

Affirmed.


source: Caselaw Access Project

author: Danhof, C.J.

license: Public Domain

text:
    CARPENTER v MUMBY
    Docket No. 77-4474.
    Submitted June 8, 1978, at Grand Rapids.
    Decided November 6, 1978.
    Plaintiff Kenneth L. Carpenter and defendants Joan Carpenter Mumby, Beverly Morris Smith and Marlene Carpenter DeWitt are all children of Blake Carpenter, who died intestate in 1947 seized of certain property. At the time of his death, Joan and Marlene were minors. Rita Carpenter, Blake’s widow, was appointed administratrix of Blake’s estate. She sold the property to her brother at its appraised value and, one week later, her brother reconveyed to her. Both deeds were recorded on October 3, 1947. Proceeds of the sale were distributed in November, 1947, according to law. In 1948 and 1953 Joan and Marlene, respectively, acknowledged receipt of their shares of the estate assets and released Rita as guardian. In 1956 Rita conveyed to Kenneth and his wife, Lucille, who in 1968 executed an oil and gas lease to Shell Oil Co. Joan, Beverly and Marlene also gave Shell a lease on the property in 1973 when they were informed of their possible interest as a result of their mother’s sale and repurchase while administratrix, in possible violation of the probate code. Shell drilled a producing well and informed plaintiffs Kenneth and Marlene that the royalties would be escrowed pending clarification of title to the property. Plaintiffs filed an action to quiet title against Joan, Beverly and Marlene, who counterclaimed to quiet title in themselves. The Manistee Circuit Court, Charles A. Wickens, J., found that the deeds from Rita Carpenter to her brother and back again were void and that defendants were unaware of that fact until 1973 and ordered plaintiffs to deed a proportionate interest to Joan, Beverly and Marlene. Plaintiffs appeal. Held:

    1. The sale of real property in probate by the administratrix in violation of the statute prohibiting self-dealing is voidable only, the contrary statutory language notwithstanding.

      References for Points in Headnotes
    [1] 31 Am Jur 2d, Executors and Administrators § 358.
    [2] 61 Am Jur 2d, Pleading §§ 152-154.
    [3] 23 Am Jur 2d, Deeds § 137.
    27 Am Jur 2d, Equity §§ 157-163.
    [4] 27 Am Jur 2d, Equity §§ 164, 165.

      2. The limitation period for equity actions to recover lands claimed by another through a voidable deed made upon sale by an administrator is five years.
    3. One invoking the aid of equity, after apparently sleeping on his rights for a time equal to the statutory period of limitations must allege facts which excuse the delay and show strong equities in his favor; the allegation that the facts were undiscovered until lately is too general and indefinite to show the absence of laches and the presence of a family relationship cannot indefinitely excuse suit where no previous attempts were made to settle the dispute.
    Reversed and remanded.
    1. Executors and Administrators — Statutes—Sale of Real Property — Fiduciary Self-Dealing.
    Any sale of real property which is in probate and made contrary to statute prohibiting the fiduciary making the sale from having any direct or indirect interest in the purchase renders the sale and resulting deeds voidable only, notwithstanding the contrary statutory language (MCL 709.27; MSA 29.3178[487]).
    2. Pleading — Evidence—Failure to Object — Court Rules.
    Failure to plead an affirmative defense, as required by applicable court rule, is cured where evidence establishing such defense is introduced at trial, without objection, and the question is argued to the court by both parties (GCR 1963, 111.7).
    3. Limitation of Actions — Statutes—Equity—Recovery of Lands —Voidable Deeds — Executors and Administrators.
    By statute the five year period of limitation to recover lands claimed by another through a voidable deed made upon sale by an administrator applies of its own force to equity actions, yet the equitable doctrine of laches also applies where equitable relief is sought; under Michigan case law it is not clear whether the doctrine of laches in such suits can only be used to narrow the statutory period or whether it may also be invoked in special cases to expand the time for bringing suit. (MCL 600.5801(1), 600.5815; MSA 27A.5801, 27A.5815).
    4. Equity — Laches—Excuse of Delay — Recently Discovered Facts.
    One invoking the aid of equity, after apparently sleeping on his rights for a time equal to the statutory period of limitations, must allege facts which excuse the delay and show strong equities in his favor; the allegation that the facts were undiscovered "until lately” is too general and indefinite to show the absence of laches and the presence of a family relationship cannot indefinitely excuse suit where no previous attempts were made to settle the dispute.

      Thompson, Zirnhelt & Bowron, for plaintiff.

      Running, Wise & Wilson (by T. J. Phillips, Jr.), for defendants.
    Before: Danhof, C.J., and V. J. Brennan and R. H. Campbell, JJ.

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

   Danhof, C.J.

This appeal involves a family dispute over title of long standing to an 80-acre parcel of land, located in Manistee County. Both sides claim interests through a common owner, Blake Carpenter, who was seized of the property at the time of his intestate death on May 17, 1947. Coplaintiff, Kenneth Carpenter, is the son of Blake Carpenter. He claims virtually full ownership by purchase through a chain of title leading hack to a deed from the administratrix of Blake Carpenter’s estate. Defendants and counterclaimants, Joan Carpenter Mumby, Beverly Morris Smith, and Marlene Carpenter DeWitt, are also children of the late Blake Carpenter. Each seeks a 1/6 share of the Manistee property as heir to her father’s estate, arguing that the deed by the administratrix was void, because it was given by the administratrix under an illegal arrangement to purchase the property for herself. See MCL 709.27; MSA 27.3178(487).

These facts are undisputed. Blake Carpenter’s widow, Rita, was the administratrix of the estate. By license, she sold the land to her brother, at its appraised value, on September 25, 1947. One week later, the brother reconveyed it to her. Both deeds were recorded October 3, 1947. Proceeds of the sale, along with other estate assets, were distributed in November, 1947, to the widow and four children according to the laws of intestate succession.

At the time of the sale and repurchase, two of the defendant children, Joan Carpenter Mumby and Marlene Carpenter DeWitt, were minors. Upon reaching the age of majority in 1948 and 1953 respectively, each acknowledged receipt of her share of the estate assets and released Rita Carpenter as guardian.

In 1956, Rita Carpenter deeded the Manistee property to plaintiffs Kenneth Carpenter and his wife Lucille.

In 1968, plaintiffs executed an oil and gas lease to the Shell Oil Company. Subsequently, in 1973, defendants also gave oil and gas leases to Shell, after the company informed them of their possible interest in the property, due to their mother’s sale and repurchase while administratrix, which may have violated the probate code rule against self-dealing.

Shell drilled a successful well and notified plaintiffs it would place all royalties in escrow until the question of title was clarified. Plaintiffs therefore filed a quiet title action. Defendants counterclaimed to quiet title in themselves.

The trial court opined that the deeds from Rita Carpenter to her brother and back to her were void. It found that defendants were unaware of the facts until 1973, when they were contacted by Shell, which disproved any claim of ratification, acquiescence or laches. Therefore, it ordered plaintiffs to sign deeds granting defendants each a 1/ 6th interest in the land. For the reasons stated herein we reverse.

Plaintiffs apparently concede that the sale and repurchase by Rita Carpenter as administratrix in 1947 was invalid under MCL 709.27; MSA 27.3178(487). The main issue argued at trial and on appeal is whether this invalidity rendered the deeds void or merely voidable. Our holding, upon review of the controlling statute and case law, is that such a deed is voidable only, and that any interest passing through it is only voidable in the hands of a non-bona fide purchaser with knowledge of the facts rendering the sale invalid.

That was the rule at common law before enactment of the predecessor to MCL 709.27; MSA 27.3178(487). Hoffman v Harrington, 28 Mich 90, 106-107 (1873) (opinion by Graves, J.). When the Legislature first enacted the rule against self-dealing into positive law, it used the word "void” rather than "voidable.” See Mich Rev Stat of 1846, Ch 77, § 18, p 309. Yet, our Supreme Court, concurring in the position of a majority of the states, see Anno: Void or Voidable Character of Sale Made in Violation of Statute Providing that no Representative Making Sale Shall be Interested Therein, but Conñrmed by Court, 111 ALR 1362, 1366; 31 Am Jur 2d, Executors and Administrators, § 386, p 187, interpreted the statute as incorporating the common law doctrine. Houlihan v Fogarty, 162 Mich 492; 127 NW 793(1910); Otis v Kennedy, 107 Mich 312; 65 NW 219 (1895); 13 Callaghan’s Mich Pleading & Practice, § 105.28, p 258.

When the self-dealing provision was reenacted in 1939, the "void” language was retained. We do not discern a clear legislative intent in that enactment to change the law. Compare, Hoffman v Harrington, supra, at 91-99 (opinion by Christiancy, C.J.), with id. at 106-108 (opinion by Graves, J.). See also, 1A Sutherland, Statutory Construction (4th ed), § 22.33, p 191. Since the language of the present code is in pertinent part identical with its predecessor statute, see Hoffman v Harrington, supra at 95, Houlihan and Otis are authoritative interpretations of both.

Finally, we note that the common law rule is sound policy. It serves to increase the value of estate property by assuring the vigilant and cautious purchaser that his title will not be upset. See White v Iselin, 26 Minn 487; 5 NW 359 (1880).

Counterclaimants rely on Smith v Withey, 309 Mich 364; 15 NW2d 671 (1944), which decided, under the present version of the self-dealing provision, that an administratrix’s retained interest in property indirectly purchased by her while representing the estate was "in [that] instance void”. Id. 366. The Supreme Court’s use of the statutory language "void” in that case is ambiguous. The holding is not inconsistent with the rule of Houlihan and Otis. The interest in the hands of the administratrix was clearly voidable. Other interests which had passed through her deed to subsequent purchasers were not determined on appeal, those parties acquiescing in the lower court’s decree that they "be protected upon payment to plaintiffs of sufficient money to satisfy the value of their * * * interests] in the premises and thereby have their deeds validated”. Id. 367.

Whether plaintiffs’ deed is voidable in fact therefore depends on whether they qualify as bona fide purchasers without notice. It is doubtful on the record before us that they do. It is, however, unnecessary to decide that question, as we find defendants’ counterclaim is time barred.

In so ruling we reject counterclaimants’ procedural contention that plaintiffs have waived this defense by failing to plead it affirmatively in their answer to the counterclaim. See GCR 1963, 111.7. Both sides argued the issue of limitations at trial to the court. Any pleading error was thereby cured. Star Steel Supply Co v White, 4 Mich App 178; 144 NW2d 673 (1966); accord, Hornack v Young, 63 Mich App 650; 234 NW2d 746 (1975); Krager v Harold E Hedler Storage, Inc, 7 Mich App 644; 152 NW2d 708 (1967). See generally, Bigelow v Walraven, 392 Mich 566; 221 NW2d 328 (1974). While plaintiffs would have been more diligent if they had sought an amendment of their pleadings to conform to the evidence under GCR 1963, 118.3, Michner Plating Co v Davis Drilling Co, Inc, 10 Mich App 358; 159 NW2d 366 (1968), their failure to do so does not change our result. 1 Honigman & Hawkins, Mich General Court Rules Anno, p 415; see GCR 1963, 118.3.

The nature of relief sought by counterclaimants is equitable. MCL 600.2932; MSA 27A.2932. The periods of limitation prescribed by the Revised Judicature Act apply to equitable actions of their own force. MCL 600.5815; MSA 27A.5815. The limitations period for actions to recover lands claimed by another through a deed made upon sale by an administratrix is five years. MCL 600.5801(1); MSA 27A.5801(1).

Whether measured from the date of the sale, see MCL 600.5827; MSA 27A.5827, or the death of the decedent, see MCL 600.5829; MSA 27A.5829, counterclaimants’ rights of action accrued before the end of 1947. Thus, defendant Smith, who was of full age at that time, was barred from suing after 1952. Since defendants Mumby and DeWitt were minors, they had one year after reaching 21 to bring their actions, even if the statutory period had run. MCL 600.5851(1); MSA 27A.5851(1). This tolling provision did not affect Mumby’s claim since she reached the age of majority (in 1948) more than one year before the period had terminated (in 1952). The other child, DeWitt, was 21 in 1953; her claim was therefore barred after 1954.

It is not clear that this ends the matter. In addition to applying the statute of limitations to equity actions, the code provides that the "equitable doctrine of laches shall also apply in actions where equitable relief is sought”. MCL 600.5815; MSA 27A.5815. Two constructions of this language are plausible under Michigan case law.

One interpretation is that the prescribed period sets an outer limit, but an equity suit not barred under the prescribed period may nevertheless be barred by laches. This reading is consistent with this Court’s decision in Tray v Whitney, 35 Mich App 529; 192 NW2d 628 (1971), and the Supreme Court’s decision in Smith v Davidson, 40 Mich 632 (1879). The latter held that an action to set aside a conveyance under the self-dealing provision of the probate code, since it would have been barred at law, must also be barred in equity. The Court reasoned:

"The policy of the statute, which was to quiet all titles derived from such sales after five years’ peaceable possession under them, cannot be evaded by the party electing one forum rather than another for litigating the rights which he disputes; but equity by analogy will apply the limitation to his case.” 40 Mich at 633.

A subsequent Supreme Court case suggests that the doctrine of laches, under narrowly prescribed circumstances, may expand the period for bringing suit. In Sequin v Madison, 328 Mich 600; 44 NW2d 150 (1950), a unanimous Court found that "[c]ourts of equity accept the statute as fixing a proper period of repose for right in equity as well as at law and apply it unless the suit is peculiarly equitable in nature or compelling equities are shown”. (Emphasis added.) Id. at 607; 44 NW2d at 152, quoting Moross v Oakman, 257 Mich 464, 466; 241 NW 181 (1932). The Sequin Court approved a flexible rule to be controlled by the peculiar circumstances of each case.

We have found no authority deciding whether § 5815 was intended to codify the Smith or Sequin result. From a policy point of view we prefer the Smith holding; yet, until we are told otherwise by the Supreme Court, we cannot ignore the hue that Sequin casts upon the statute. Nonetheless, we find that counterclaimants have failed to show the absence of laches.

As the Sequin Court quoted:

"Where one invokes the aid of equity, after apparently sleeping on his rights for a time equal to the statutory period of limitations, he must allege facts which excuse the delay and show strong equities in his favor.” 328 Mich at 607; 44 NW2d at 153, quoting Moross v Oakman, 257 Mich 464, 466; 241 NW 181 (1932).

In this case counterclaimants apparently slept on their rights for a time far in excess of the statutory period. They did so with actual knowledge that their mother had administered Blake Carpenter’s estate and with actual or constructive knowledge that she had sold and repurchased the Manistee property. While plaintiffs do not claim prejudice, it is apparent on the record that their case was hampered by the uncertainty of recollection of the interested parties. It was crucial, for example, to find a prearrangement between Rita Carpenter and her brother to reconvey the Manistee property, as a sale to a close relative and repurchase by the fiduciary is not conclusive of self-dealing. The testimony strongly intimated and circumstantially evidenced such a secret agreement, but no one could say for sure. Rita Carpenter, who among all the witnesses would have been in the best position to know of such a deal, could not recall precisely how the transaction occurred. On these facts it would deeply contravene the policies of MCL 600.5801(1); MSA 27A.5801O) to undo the sale at this late date.

Under the circumstances, counterclaimants’ delay in bringing suit also amounts to a ratification and acquiescence in the sale. Egan v Grece, 79 Mich 629; 45 NW 74 (1890), Campau v Van Dyke, 15 Mich 371 (1867), 31 Am Jur 2d, Executors and Administrators, § 388, p 188.

Counterclaimants seek to excuse their delay on several theories.

First, they claim ignorance of their right to sue until Shell advised them in 1973. As a general rule such ignorance does not postpone the commencement of the limitations period. 51 Am Jur 2d, Limitations of Actions, § 146, p 715. An exception has been recognized when "the fact of the invasion of a right” is undiscovered. (Emphasis added.) Id. at 716. The trial court found that "defendants * * * were not aware of the [facts] until 1973”. Sequin, however, approved of the holding in Moross that an allegation by a party that he "did not discover the facts 'until lately’ is too general and indefinite to show the absence of laches.” 328 Mich at 607; 44 NW2d at 153, quoting 257 Mich at 466; 241 NW at 181. Moreover, the trial court’s finding is clearly erroneous; it is apparent from the trial transcript that counterclaimants were aware of the circumstances of the sale. Exercising reasonable viligance, they could have known long before 1973 that on these facts they had rights in the Manistee property.

Defendants next seek to excuse their delay because of the family relationship of the parties, citing Backus v Backus, 207 Mich 690; 175 NW 400 (1919). The presence of a family relationship is entitled to great weight in the laches determination, "not only because [relatives] may naturally and commendably be reluctant to engage in litigation, but also because they ought to be able to rely more on substantial justice being voluntarily done by a member of the family than by a stranger”. Wright v Wright, 37 Mich 55, 56 (1877). Relatives, however, cannot be excused from suing indefinitely, without making any attempt to settle the claim beforehand. Backus is distinguishable on this point. While the Court in that case gave equitable relief to a plaintiff who had delayed five years in suing his brother, it noted, in addition to the family tie, that 'plaintiff during the first three years of that period repeatedly had attempted to solve the dispute out of court. See generally, Anno: Settlement Negotiations as Estopping Reliance of Statute of Limitations, 39 ALR3d 127.

Counterclaimants also argue that any theory of limitation is inapplicable in this suit because Rita Carpenter was acting as their fiduciary. Since an administratrix by definition is a fiduciary for the heirs of the estate, counterclaimants in effect would have us read code § 5801(1) as providing: "When the defendant claims title * * * through some deed made upon the sale * * * by an * * * administrator * * * the period of limitations is five years [unless the suit is by an heir in which case no period of limitations is applicable]”. We find this position untenable. First, it is clear that our Supreme Court has applied the doctrine of limitations in suits by heirs to set aside a conveyance by an administrator. E.g., Smith v Davidson, supra. Second, the gaping hole we would have to cut into MCL 600.5801(1) to apply counterclaimants’ exception would seem to conflict with the subsection’s plain meaning. Third, the rule relied on by counterclaimants has been misstated. The statute of limitations is not inapplicable to any claim which accrues while a fiduciary relationship existed between the parties. The correct rule is that the period of limitations does not begin to run until the fiduciary relationship ends — that is, until all the fiduciary’s duties have been discharged or repudiated. See O’Toole v Hurley, 15 Mich 517, 521; 73 NW 805, 806 (1898); cf. 76 Am Jur 2d, Trusts, § 587, pp 794-795. In this instance, the fiduciary relationship ended when all affairs of the estate were wound up and the minor children released Rita Carpenter as their guardian substantially before the period of limitations had run.

Lastly, counterclaimants contend that their suit cannot be time barred because the deeds out by and back to Rita Carpenter were nullities and, therefore, never divested counterclaimants of their interest in the property. We have already answered that argument by our conclusion that the deeds did pass voidable title.

Reversed. Judgment entered for appellants. Costs to appellants.

       He claims co-ownership in all but a one-half interest in the mineral rights, which he and his wife conveyed to a third party in 1973.

       By those laws the widow took one-third, while each of the children took one-sixth of the estate.

       Rita Carpenter had entered into a land contract to sell the property to another person in 1951, but regained it because of a default in payment.

       Plaintiffs originally joined Shell as a defendant, but dismissed the company, by stipulation with defendants upon agreement to escrow the royalties.

       That section of the probate code provides:
      "The fiduciary making the sale shall not directly or indirectly purchase, or be interested in the purchase of any part of the property so sold, and all sales made contrary to the provisions of this section shall be void; but this section shall not prohibit any such purchase by a guardian for the benefit of his ward.”

       Plaintiffs had actual knowledge of the sale by Rita Carpenter to her brother and repurchase within one week. These were also matters of record. Although a subsequent purchase by an administratrix of land previously sold under license of the probate court is not per se invalid, Ketchum v Ketchum, 177 Mich 100; 143 NW 25 (1913) (sale to mother and repurchased same day legal under circumstances); Otis v Kennedy, 107 Mich 312; 65 NW 219 (1895); 13 Callaghan’s Mich Pleading & Practice, § 105.28, pp 258-259, the proximity of the sale and repurchase should have raised a suspicion in plaintiffs’ minds about the validity of the deeds. Winter v Truax, 87 Mich 324; 49 NW 604 (1891); McKay v Williams, 67 Mich 547; 35 NW 159 (1887). But see, Otis v Kennedy, supra, at 320-322; 65 NW at 221-222 (distinguishing Truax and Williams). Plaintiffs therefore would be held to the knowledge that could have been gained by a reasonable inquiry. Otis v Kennedy, supra at 322; 65 NW at 222.

        See note 6, supra.

       On direct examination, plaintiffs’ attorney asked Rita Carpenter why she did not just buy the property herself. She responded, "Well, I think I couldn’t. According to the Probate Judge, I couldn’t buy it.”


author: W. Van Valkenburg, J.

text:
    PEOPLE v THOMAS
    Docket No. 77-5025.
    Submitted June 14, 1978, at Grand Rapids.
    Decided November 6, 1978.
    Leave to appeal applied for.
    Bennie L. Thomas was convicted of two counts of first-degree murder, Saginaw Circuit Court, Hazen R. Armstrong, J. The defendant appeals, alleging that the trial court erred: 1) in denying his motion to suppress evidence which had been seized as a result of three improper searches, 2) in denying his juror challenges for cause and his motions for change of venue, and 3) by allowing the prosecutor to make prejudicial remarks to the jury and by allowing the prosecutor to establish the defendant’s lack of employment at the time the charged crimes occurred. Held:

    1. The trial court correctly denied the motion to suppress because the affidavit in support of the search warrant, when viewed in a common sense manner, afforded the magistrate sufficient probable cause to issue the search warrant.
    2. The denial of the motion for change of venue was not a clear abuse of the trial court’s discretion.
    3. There was no abuse of the trial court’s discretion in refusing to dismiss certain of the jurors challenged for cause.
    4. Any error which might have occurred as a result of the prosecutor’s remarks which pointed out that the denial of the defendant’s guilt was made by defense counsel and did not come from the testimony of any witness was cured by an instruction that the defendant’s silence could not be considered for any purpose.

      References for Points in Headnotes
    [1, 3] 68 Am Jur 2d, Searches and Seizures §§ 64-70.
    [2] 68 Am Jur 2d, Searches and Seizures §§ 66, 68.
    [4, 7] 21 Am Jur 2d, Criminal Law §§ 419, 427, 428.
    [5] 47 Am Jur 2d, Jury §§ 220, 265-268.
    [6] 47 Am Jur 2d, Jury §§ 213-216.
    [8] 21 Am Jur 2d, Criminal Law §§ 349-353.
    [9] 5 Am Jur 2d, Appeal and Error §§ 783, 867.
    [10] 5 Am Jur 2d, Appeal and Error §§ 624, 772-774, 809.
    75 Am Jur 2d, Trial §§ 293-295.
    Counsel’s reference in criminal case to wealth, poverty, of financial status of defendant or victim as grounds for mistrial, new trial, or reversal. 36 ALR3d 839.

      5. The admission of evidence about the defendant’s unemployment and poverty at the time the murders were committed was improper; however, in light of other overwhelming evidence of the defendant’s guilt, he suffered no manifest injustice.
    Affirmed.
    1. Searches and Seizures — Search Warrants — Probable Cause— Affidavits — Affiants—Statutes.
    The statute which provides that a magistrate shall issue a search warrant when he finds that there is reasonable or probable cause therefor covers two types of affidavits, namely: one in which the affiant states facts, and one in which the affiant states only informant information; the latter type may be sufficient if the information is reliable, from a credible person and if the affidavit contains affirmative allegations that the informant spoke with personal knowledge of the information (MCL 780.653; MSA 28.1259[3]).
    2. Searches and Seizures — Search Warrants — Affidavits—Common Sense Approach — Magistrates—Abuse of Discretion.
    An affidavit in support of a search warrant should be viewed in a common sense manner; the Court of Appeals should not substitute its judgment for that of a magistrate unless there has been a clear abuse of discretion in his determination of probable cause.
    3. Searches and Seizures — Search Warrants — Probable Cause— Evidence — Probability of Criminal Activity.
    A finding of probable cause sufficient to justify issuance of a search warrant may rest upon evidence which is not sufficient to justify conviction and which may not be legally competent in a criminal trial because it is only the probability and not a prima facie showing of criminal activity that is the standard of probable cause.
    4. Venue — Criminal Law — Change of Venue — Discretion.
    A trial court may properly defer determination on a request for a change of venue in a criminal case until an attempt has been made to select a jury in the county where the crime occurred; it is not an abuse of discretion to follow this established rule.
    5. Jury — Jurors—Challenge for Cause — Discretion—Court Rules.
    .A finding of bias or prejudice of a juror challenged for cause is a matter which is within the discretion of the trial court (GCR 1963, 511.4).
    6. Jury — Jurors—Challenge for Cause — Capacity to Render Fair Verdict.
    A litigant who challenges a prospective juror for cause must show that the juror has preconceived opinions or prejudices, or such other interests or limitations as would impair his capacity to render a fair and impartial verdict.
    7. Venue — Criminal Law — Motions—Discretion.
    The granting or denial of a motion for a change of venue is discretionary with the trial court, and the exercise of that discretion will not be disturbed on appeal unless there is a clear showing of abuse of discretion.
    8. Constitutional Law — Criminal Law — Right to Silence.
    A criminal defendant has a right to remain silent and no reference or comments should be made to subvert that right.
    9. Criminal Law — Prosecutor’s Statements — Factual Basis — Evidence — Miscarriage of Justice — Fair and Impartial Trial.
    A prosecutor may not make a statement of fact to the jury which is unsupported by the evidence in the case; however, a verdict in a criminal case should not be set aside unless it affirmatively appears that the error complained of has resulted in a miscarriage of justice; the test to be applied is not whether there were some irregularities, but instead did the defendant have a fair and impartial trial.
    10. Criminal Law — Evidence—Defendant’s Poverty — Defendant’s Unemployment — Appeal and Error.
    Generally it is error to allow the prosecution to introduce the question of a defendant’s poverty and unemployment because it is immaterial whether a person is employed or unemployed where proof of an alleged crime is concerned; however, there is no per se rule requiring reversal of a defendant’s conviction where questions about the defendant’s unemployment are asked; rather the question to be answered in determining whether reversible error occurred in allowing such testimony is whether the trial court abused its discretion in allowing this line of questioning.
    Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert Kaczmarek,
      Prosecuting Attorney, and Peter C. Jensen, Assistant Prosecuting Attorney, for the people.
    Thick, Bush & Harris, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P.J., and T. M. Burns and W. Van Valkenburg, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   W. Van Valkenburg, J.

Defendant was jury convicted on June 16, 1976, of two counts of first-degree murder, contrary to MCL 750.316; MSA 28.548. He was sentenced to life imprisonment on each count and appeals here as of right.

During the evening of August 22, 1975, defendant, with his girlfriend Juanita Clark (a/k/a Juanita Hunt), with whom he was living, together with the victims Arnie Davis and Leo Keenan, occupied their time at a bar in Saginaw, Michigan. Following the closing of the bar all four individuals entered Keenan’s pickup truck and drove to 516 N. Fourth Street where Juanita hoped to purchase some marijuana. She exited from the vehicle, according to her testimony, and knocked at the front door of the home. She received no answer. Feeling the need of visiting a bathroom she walked around the side of the house and behind a car. While there she heard shots being fired and upon returning to the street observed defendant walking away from both Davis and Keenan, one of whom was lying on the ground, the other in the truck.

When the police arrived, apparently having been called by someone who heard the shots, they found Keenan dead, Davis mortally wounded, their pockets empty and turned out, and the pickup truck’s keys missing.

Later, at approximately 4 a.m., a call was received at police headquarters from an anonymous caller who left his number and insisted on talking only with Captain Edward Chmielewski, chief of detectives. The latter telephoned the number left by the caller and was advised by the informant, hereinafter referred to as 1-328, that he picked up Ms. Clark, who was seen hurrying in the rain, at about 2:30 a.m. the night of the killing. Further, she advised him that her "old man Bennie” had just shot two white "dudes” and that she was looking for him. She requested transportation to her home at 1435 Gage Street, where defendant was observed sitting on the front porch.

Officers were dispatched to that address at about 10 a.m. for the purpose of arresting both Thomas and Clark. One policeman was left there as a guard until a search warrant could be obtained. Defendant on appeal has raised three issues for consideration.

I.

Did the trial court err in denying the motion to suppress the evidence which had been seized as a result of three searches?

Defendant contends that the warrant issued on August 23, 1975, was faulty since the affidavit did not provide reasonable or probable cause.

The statute, MCL 780.651; MSA 28.1259(1), provides that a magistrate shall issue a search warrant when he finds that there is reasonable or probable cause therefor. This is based,, however, on an affidavit, the requirements of which are set forth in MCL 780.653; MSA 28.1259(3):

"The magistrate’s finding of reasonable or probable cause shall be based upon all the facts related within the affidavit made before him. The affidavit may be based upon reliable information supplied to the complainant from a credible person, named or unnamed, so long as the affidavit contains affirmative allegations that the person spoke with personal knowledge of the matters contained therein.”

The basic requirements of the affidavit are summarized in 2 Gillespie, Michigan Criminal Law & Procedure (1978 rev ed), § 868, pp 712-713:

"The affidavit must contain facts within the knowledge of the affiant, as opposed to mere information and belief or conclusions of the affiant. The facts should be set forth clearly and distinctly and must be such that in law would make out a cause of complaint. It is not for the affiant to draw his own inferences. He must state matters which justify the drawing of them, since the purpose of an affidavit or complaint in support of a search warrant request is to supply the magistrate with reliable information on which the probable cause determination may be based.”

Further interpretation is promulgated in People v Rodriguez, 65 Mich App 723, 727; 238 NW2d 385 (1975):

"We read the statute as covering two types of affidavits, namely: one in which the affiant states facts, and one in which the affiant states only informant information. The latter type may be sufficient if the information is reliable, from a credible person and if the affidavit contains affirmative allegations that the informant spoke with personal knowledge of the information.”

Defendant, in his brief, relies heavily on Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), which does set forth the fundamental test and has been quoted by this Court on many occasions. There the Court held that the affidavit was insufficient. However, that case was distinguished in People v Jerry Johnson, 68 Mich App 697, 704-705; 243 NW2d 715 (1976), where the facts were similar to the ones in the case at bar:

"This affidavit also differs from that in Aguilar in that the Aguilar affidavit simply stated that the information had been received from a credible person, while in the affidavit in the instant case, it was stated that the credible person was 'known to your deponent as a credible and reliable person’. Thus, in the case before us, the affiant is swearing that, by his own personal knowledge, the informant is reliable. The magistrate may choose to believe or disbelieve the affiant; similarly, he would be forced to believe or disbelieve the affiant had it been sworn that the informant had given reliable information in the past. A magistrate may require more information from certain affiants than from others before reaching a determination as to the reliability of anonymous informants in different cases, but that is a decision for the magistrates, and not for this Court. Simply because a magistrate chooses to believe an affiant who claims he has information from an informant known to him to be reliable, is no reason for this Court to conclude that the magistrate has not acted as a 'neutral and detached magistrate’ in drawing 'inferences from the facts which led to the complaint’. Aguilar, supra, 378 US 115; 84 S Ct 1514; 12 L Ed 2d 729.”

Furthermore, the affidavit in support of a search warrant, according to another line of thinking, must be viewed in a common-sense manner. People v Iaconis, 29 Mich App 443, 454; 185 NW2d 609 (1971), affirmed by the Supreme Court in People v Bercheny, 387 Mich 431; 196 NW2d 767 (1972).

This theory was continued in People v Coffey, 61 Mich App 110, 117; 232 NW2d 320 (1975), and People v Battle, 71 Mich App 136, 144; 246 NW2d 389 (1976).

Quoting further from Iaconis, supra, at 462, it was concluded that

"This Court may not substitute its judgment for that of the magistrate unless there has been a clear abuse of discretion in his determination of probable cause.” (Citations omitted.)

A warrant, issued pursuant to an affidavit, reviewed in a common-sense manner, is preferable to action taken without one. United States v Ventresca, 380 US 102; 85 S Ct 741; 13 L Ed 2d 684 (1965).

Further, the United States Supreme Court held that a finding of probable cause sufficient to justify issuance of a search warrant may rest upon evidence which is not sufficient to justify conviction and which may not be legally competent in a criminal trial because it is only the probability, and not a prima facie showing, of criminal activity that is the standard of probable cause. Draper v United States, 358 US 307, 311; 79 S Ct 329; 3 L Ed 2d 327 (1959).

Application of the above rules to the affidavit in question is now in order. Information furnished by the informant on three prior occasions had been "proven to be true and correct”. This conclusion is stated as a fact and not a mere inference. A penciled-in paragraph requested by the judge stated in substance that a "shooting” took place "in the 500 block, N Fourth Street” and that Juanita Clark was known to have been in the vicinity at the time. She was delivered to 1435 Gage Street, which residence is described in detail.

Therefore, we come to the same decision as this Court did in Iaconis, supra, at 457, where it was held:

"We conclude, upon the authority of the above cases, that the affidavit in question, viewed in a common-sense manner, afforded the magistrate sufficient probable cause to issue a search warrant in this case, and that his action was proper.”

The trial court was therefore correct in denying the motion to suppress the evidence.

II.

Did the trial court err in denying defendant’s juror challenges for cause and his motions for change of venue?

The trial judge denied the motion for a change of venue pending an attempt to impanel a jury. That action was proper according to the rule promulgated in People v Swift, 172 Mich 473, 479; 138 NW 662 (1912).

This Court in People v Collins, 43 Mich App 259, 262; 204 NW2d 290 (1972), stated:

"Since People v Swift, 172 Mich 473 (1912), it has been the rule that it is proper for a trial court to defer determination on a request for a change of venue until an attempt has been made to select a jury in the county where the crime occurred. Defendant has not cited, nor has independent research disclosed, any authority which overrules Swift. Following an established rule is not an abuse of discretion.”

Turning now to the question of juror challenges, the record shows that some 60 venirepersons were examined before the jury was sworn. At least 40 of these individuals had not heard of defendant and were not familiar with the pretrial press coverage. Many of these individuals who had read something about the charged crime stated that no opinion as to guilt had been formed. The fact that defendant had exhausted his peremptory challenges is not controlling. Swift, supra, at 482.

GCR 1963, 511.4 provides in part:

"The following are grounds for challenges for cause:

(3) that the person is biased for or against a party or attorney;
(4) that the person shows a state of mind which will prevent him from rendering a just verdict, or has formed a positive opinion on the facts of the case or as to what the outcome should be.”

Therefore, according to the rule, the finding of bias or prejudice of a challenged juror is a matter which is within the trial court’s discretion.

A litigant who challenges a prospective juror must then show that the latter "has preconceived opinions or prejudices, or such other interests or limitations as would impair his capacity to render a fair and impartial verdict”. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 466.

A review of the record, in light of these rules, leads us to the conclusion that the trial judge did not abuse his discretion in refusing to dismiss the jurors for cause.

The entire record of this case shows a remarkable parallel to Collins, supra, and People v Ranes, 63 Mich App 498; 234 NW2d 673 (1975).

Collins was tried in Washtenaw County for a single murder following the killing of several coeds in and around Ypsilanti. It was held by this Court, in spite of the pretrial publicity surrounding these murders, that the defendant received a fair and impartial trial.

In Ranes, we have an almost exact duplicate, both as to the number of charges and the publicity, of the situation as it existed here. Ranes’ plan of operation was to rape, rob and murder his victims. In fact, two young ladies suffered their fates in one day. At the time of the trial in that case, the defendant had been convicted of second-degree murder and first-degree murder in the perpetration or attempted perpetration of rape. See People v Ranes, 58 Mich App 268; 227 NW2d 312 (1975).

We quote from the opinion in the second appeal, People v Ranes, 63 Mich App at 503:

"While either party may be granted a change of venue 'upon good cause shown’, MCLA 762.7; MSA 28.850, the denial of such motion rests in the trial court’s discretion. To set aside such a decision, a clear showing of abuse on the part of the trial court must be demonstrated.”

Accordingly we find, following a careful review of the record, that no abuse of discretion existed as to the denial of the motion for a change of venue or as to the challenges for cause.

III.

Did the trial court err by allowing the prosecutor to make prejudicial remarks to the jury and by allowing the prosecutor to establish defendant’s lack of employment at the time the charged crimes occurred?

During closing arguments, defense counsel argued that his client had repeatedly denied that he had robbed the victims. The prosecutor, in rebuttal, referred to defendant’s plea of not guilty, but pointed out that defendant’s denial of guilt was presented by defense counsel and did not come from the testimony of any witness.

It is, of course, well settled that a criminal defendant has a right to remain silent at trial and no reference or comments should be made to subvert that right. People v Balog, 56 Mich App 624, 629; 224 NW2d 725 (1974).

However, if error did occur by virtue of these remarks, it was cured by the instruction given by the trial court that defendant’s silence could not be considered for any purpose.

Also, in the closing arguments, the prosecutor made the following statements:

"The importance of a felony murder case, the importance of making a homicide complete during the course of a robbery, first-degree murder, it is not the value of the article that is stolen, it is the fact that someone’s death has occurred during the robbery.
"The Legislature has decided that they want to put high penalties, high charges on people going around committing robberies, armed robbers; and if a death follows, obviously you can’t bring that person back to life; so the Legislature is trying to make homicides committed during armed robbery in this case, that’s what we’re dealing with, homicide during the commission of an armed robbery, they’re trying to make it a very serious offense; and I think that the only reasonable inference that you can draw from the evidence in this case is that Bennie Thomas has committed a street mugging, armed robbery, on Fourth Street.”

Perhaps the making of these remarks was attributable to the fact that this was a highly emotional murder trial, and that the remarks were made in the heat of the closing hours thereof.

The conclusions of this Court in People v Wheat, 55 Mich App 559, 565; 223 NW2d 73 (1974), cover this subject:

"It is well settled that a prosecutor may not make a statement of fact to the jury which is unsupported by the evidence in the case. However, it is equally well settled that a verdict in a criminal case cannot be set aside unless it affirmatively appears that the error complained of has resulted in a miscarriage of justice. MCLA 769.26; MSA 28.1096; People v Green, 7 Mich App 346, 354; 151 NW2d 834, 838 (1967).
"A prosecuting attorney is properly held to a very high standard of performance. Nevertheless, the courts have recognized that infallibility will never be achieved:
" 'Great care should be taken by prosecuting officers and trial courts that no statement be made in the presence of jurors which would jeopardize a defendant’s right to a fair trial. But in the haste and heat of a trial it is humanly impossible to obtain absolute perfection, and of necessity some allowance must be made in determining whether impromptu remarks are to be held prejudicial. Statements should not be held prejudicial if they are made in good faith, and, when fairly construed, they do not appear to have been such as influenced the jury adversely to the rights of the accused.’ People v Burnstein, 261 Mich 534, 538; 246 NW 217, 218 (1933).”

Furthermore, "the test to be applied is not whether there were some irregularities but instead did the defendant have a fair and impartial trial”. People v Williams, 11 Mich App 62, 66; 160 NW2d 599, 601 (1968), aff'd, 383 Mich 118; 174 NW2d 564 (1970). Therefore, no reversible error was committed in the prosecutor’s argument to the jury.

Counsel for defendant, during cross-examination of Ms. Clark, elicited testimony to the effect that Arnie Davis had given her money and had promised to provide for her and her baby if she would get rid of defendant. The prosecutor, arguing that defense counsel opened the door, established that defendant was unemployed at the time the crimes occurred. The court agreed with the prosecution’s argument and allowed the evidence of unemployment to be presented.

Defense counsel objected to this questioning and on appeal maintains, relying on People v Johnson, 393 Mich 488, 496; 227 NW2d 523 (1975), that it was error to introduce the question of poverty and unemployment. Generally this would be true since it is immaterial whether a person is employed or unemployed where proof of an alleged crime is concerned.

It has been held by this Court, though, that the Michigan Supreme Court did not set out a per se rule requiring reversal where questions of a defendant’s unemployment are asked. Rather, the question to be answered in determining whether reversible error occurred in allowing such testimony is whether the trial court abused its discretion in allowing this line of questioning. People v Thomas Jones, 73 Mich App 107, 109; 251 NW2d 264 (1976).

Here, however, counsel for defendant merely brought out that he was not providing for Ms. Clark and her child, not that he was financially unable to do so because of the fact that he was unemployed. Under these circumstances, it would appear that the door was not opened for such questioning.

The application of Johnson to situations of this kind has brought about emphasis upon various factors by different panels of this Court.

In People v Jackson, 77 Mich App 392, 400; 258 NW2d 89 (1977), we find this attitude:

"Absent an express prohibition by the Supreme Court, we would hold that, with some limitations, a defendant’s need for money may be shown in order to establish a motive for a theft offense. We do not believe that People v Johnson, supra, prohibits that holding.”

See People v Henderson, 80 Mich App 447, 451; 264 NW2d 22 (1978), for a list of cases dealing with this subject.

Therefore, when we isolate Ms. Clark’s testimony in this area from the balance of the record, it would be concluded, in light of this line of cases, that the trial court abused its discretion in permitting the prosecutor to proceed as he did.

However, MCL 769.26; MSA 28.1096, provides:

"No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.” (Emphasis added.)

The crucial fact, in the instant case, was whether or not defendant committed the crimes charged in the information. The jury was confronted with a huge amount of testimony concerning the incident, with only a small part thereof being taken up by the error complained of. The evidence of guilt was overwhelming. Accordingly, defendant has not shown that he suffered a "miscarriage of justice”.

In People v Martin, 75 Mich App 6, 14; 254 NW2d 628 (1977), it is stated:

"The prosecution did not mention defendant’s unemployment or station in life during closing argument and the brief reference to this fact in this lengthy trial was not prejudicial.”

Absent proof of a manifest injustice, there can be no reversal of the defendant’s conviction. MCL 769.26; MSA 28.1096.

There has been no such showing here which would justify the reversal of this conviction.

Affirmed.


text:
    PEOPLE v FOURNIER
    Docket No. 77-5035.
    Submitted June 14, 1978, at Grand Rapids.
    Decided November 6, 1978.
    Robert Fournier was convicted of voluntary manslaughter in the Kalamazoo Circuit Court, Patrick H. McCauley, J. Defendant appeals. Held:

    1. The trial court’s failure to repeat the fact that the jury could find defendant not guilty at the close of the instructions was a mere oversight that did not mislead the jury. The instructions as a whole adequately informed the jury that they could bring in a verdict of not guilty and counsel did not object to the instructions.
    2. The trial court’s erroneous instruction regarding the presumption of malice where a death results from an assault with a deadly weapon was harmless error since the jury found the defendant guilty of manslaughter and thereby indicated that they found no malice.
    3. The trial court did not err in excusing the prosecution from producing a witness and in ruling that the people had exercised due diligence by their efforts to produce the witness.

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial § 762.
    [2] 40 Am Jur 2d, Homicide §§ 45, 509.
    [3] 40 Am Jur 2d, Homicide § 42.
    [4] 40 Am Jur 2d, Homicide §§ 500, 569.
    [5] 75 Am Jur 2d, Trial § 43.
    81 Am Jur 2d, Witnesses §§ 2, 74.
    [6] No Reference
    [7] 75 Am Jur 2d, Trial § 771.
    [8] 81 Am Jur 2d, Witnesses § 472.
    [9] 5 Am Jur 2d, Appeal and Error § 776.
    [10] 29 Am Jur 2d, Evidence §§ 876, 877.
    [11] 29 Am Jur 2d, Evidence § 831.
    40 Am Jur 2d, Homicide § 488.
    Physiological or psychological truth and deception tests. 23 ALR2d 1306.
    [12] 21 Am Jur 2d, Criminal Law § 324.
    23 Am Jur 2d, Depositions and Discovery § 307.
    [13] 4 Am Jur 2d, Appeal and Error § 18.
    [14] 40 Am Jur 2d, Homicide §§ 56-59.
    [15] 58 Am Jur 2d, New Trial § 189.
    [16] 21 Am Jur 2d, Criminal Law §§ 234, 235.

      4. Any error in initially denying defense counsel access to letters written by the defendant when they were first presented to refresh his memory was harmless error since it did not amount to a manifest injustice and defendant was not prejudiced by the erroneous ruling.
    5. The court did not err in preventing a defense expert witness from testifying as to his opinion which had been formed as a result of information obtained while defendant was under the influence of sodium brevital since such truth serum drugs have not been proven reliable by medical evidence or studies and, therefore, the testimony was too uncertain.
    6. The trial court abused its discretion in denying defense counsel access to reports regarding the deceased having a knife in his possession at the time of the shooting. The error was harmless however, since defendant testified that he saw something in the hand of the deceased, but did not know what it was, and two police officers testified that a knife was taken from the right front pocket of the deceased in the hospital emergency ward, thus bringing that fact before the jury to consider.
    Affirmed.
    1. Appeal and Error — Trial—Jury Instructions — Not Guilty Instruction.
    A trial court did not commit reversible error in failing to repeat, at the close of the jury instructions, the fact that the jury could find the criminal defendant not guilty where the entire panel was advised of this basic rule before the jury was selected, the court began its instructions to the jury by saying that if the prosecutor did not prove the defendant guilty beyond a reasonable doubt the jury must find him not guilty, where the instructions as a whole did not mislead the jury and adequately informed the jury that they could bring in a verdict of not guilty, and where defense counsel made no objections to the instructions.
    2. Homicide — Murder—First-Degree Murder — Second-Degree Murder — Elements—Malice—Jury—Inferences—Presumptions of Law.
    Malice is an element of the crime of first and second-degree murder; the determination of this element must be made by a jury; Michigan has long considered malice a permissible inference to be drawn by the jury rather than as a presumption of law.
    3. Homicide — Voluntary Manslaughter — Murder—Malice.
    Voluntary manslaughter is distinguished from murder by the absence of the element of malice.
    4. Appeal and Error — Trial—Homicide—Charge to Jury — First-Degree Murder — Assault—Deadly Weapons — Malice—Presumptions — Voluntary Manslaughter.
    A trial court’s erroneous charge to the jury was harmless error, in a trial for first-degree murder, where the jury was instructed that where a death results from an assault where a deadly weapon is used, and there is no evidence to the contrary, the presumption is that the death was inflicted with malice, and where the jury found the defendant guilty of voluntary manslaughter thus indicating that they found no malice.
    5. Witnesses — Criminal Law — Res Gestae Witnesses — Prosecutor’s Duty — Due Diligence — Court’s Discretion.
    A prosecutor has an affirmative duty to indorse and produce all res gestae witnesses to a crime at the time of the trial; the question of whether due diligence has been shown in producing such witnesses is a matter for the discretion of the trial court whose decision will be overturned on appeal only where a clear abuse of discretion is shown.
    6. Words and Phrases — Due Diligence.
    Due diligence in law means doing everything reasonable, not everything possible.
    7. Witnesses — Criminal Law — Trial—Witnesses—Prosecutors— Due Diligence — Jury—Adverse Witnesses.
    It is not error for a trial court to refuse to compel the prosecution to call witnesses whose names are indorsed on the information but who are not within the state and answerable to process of the court; it is permissible for a court to submit the question of the prosecutor’s due diligence in producing such a witness to the jury with instructions that if they find that the prosecutor failed to employ due diligence they may consider that the witness, if called, would be adverse to the people.
    8. Criminal Law — Trial—Cross-Examination—Trial Court’s Discretion — Harmless Error — Manifest Injustice.
    The extent and control of cross-examination in a criminal prosecution is within the discretion of the trial court: an error in the admission or exclusion of evidence will result in harmless error and will not require reversal unless it results in manifest injustice.
    9. Appeal and Error — Harmless Error — Test.
    A two-pronged test is used to determine whether an error committed in a trial is harmless or reversible error: first, is the error so offensive to the maintenance of a sound judicial process that it never can be regarded as harmless, and second, if not so basic, can the appellate court declare a belief that the error was harmless beyond a reasonable doubt; the purpose of the first step is to deter prosecutorial misconduct and to safeguard those individual rights which are so fundamental that the impact of their violation cannot be fully assessed.
    10. Witnesses — Testimony from Memory — Memory Refreshed by Writing — Evidence.
    The testimony of a witness who testifies from memory, after being refreshed by a writing, is what is introduced into evidence, not the writing itself.
    11. Homicide — Appeal and Error — First-Degree Murder — Evidence — Expert Witnesses — Truth Serums — Reliability.
    A trial court did not err, in a trial for first-degree murder, by preventing a defense expert witness from testifying as to his opinion, which had been formed as a result of information obtained while the defendant was under the influence of sodium brevital, a so-called "truth serum” drug, since such truth serums have not been shown to be reliable through medical evidence or studies, and therefore, the testimony was too uncertain to be allowed before the jury.
    12. Criminal Law — Evidence—Discovery—Admissibility—Fairness to Defendant.
    Discovery is not limited to whether the information sought is admissible at trial; the focus is upon whether fundamental fairness to a criminal defendant in preparing his defense requires that he have access to the requested information.
    13. Appeal and Error — Homicide—Abuse of Discretion — First-Degree Murder — Evidence—Harmless Error.
    A trial court’s abuse of discretion in a trial for first-degree murder, in denying defendant’s attorney access to reports regarding the deceased having a knife in his possession at the time of the shooting, was harmless error where the defendant testified on direct examination that he saw something in the deceased’s hand but did not know what it was, and where the fact that the deceased had such a knife was before the jury to consider since two police officers testified that a knife was taken from the right front pocket of the deceased in the emergency ward of the hospital.
    14. Homicide — Voluntary Manslaughter — Words and Phrases.
    Voluntary manslaughter is the killing of another intentionally, but in a sudden heat of passion, due to adequate provocation, but without malice.
    15. New Trial — Delayed Motion for New Trial.
    The Michigan Supreme Court does not look with favor upon a long-delayed motion for a new trial.
    16. Criminal Law — Trial—Fair Trials — Perfect Trials.
    A person charged with a crime is entitled to a fair trial, not a perfect one.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, Stephen M. Wheeler, Chief of Appellate Division, and Judy A. Hughes, Assistant Prosecuting Attorney, Appellate Division, for the people.

      DeVries & Lamb, P.C., for defendant.
    Before: D. E. Holbrook, Jr., P.J., and T. M. Burns and W. Van Valkenburg, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   W. Van Valkenburg, J.

Defendant was charged with the first-degree murder of Anthony Doss, contrary to MCL 750.316; MSA 28.548, but was convicted on November 7, 1975, following an 11 day jury trial, of voluntary manslaughter. He was sentenced on December 8, 1975, to 10 to 15 years and was given credit for 420 days spent in the county jail, with the further recommendation that he should not be paroled and that he be deported from the country.

A motion for a new trial was argued on September 20, 1977, and denied on October 25, 1977. The appeal to this Court followed as of right.

The shooting, which was an outgrowth of an "eternal triangle”, occurred on October 14, 1974, and Doss died on November 5, 1974. The three principals include: the deceased, who was pictured during the lengthy trial as a brutal thug; defendant, who appeared to be psychotic and could not live with the fact that women were not attracted to him; and the necessary woman, Sally Schippers, who was characterized as a fickle jezebel who had two fiances at the same time and led each of them to believe that she would marry him.

There is some confusion concerning the events on the 14th which led up to the shooting. However, the two men confronted each other, either at the residence of Sally Schippers or at the gas station where the deceased was employed. Thereafter, defendant returned to his mother’s home, obtained a 12-gauge shotgun and headed for the station where he kidnapped Sally at gunpoint and drove off in a red car. Doss followed and finally caught up with him at the intersection of West Michigan Avenue and South Park Street in downtown Kalamazoo. At this point the deceased rammed defendant’s car several times. The latter, finding that his steering gear was jammed, shot twice through the rear window of the Doss vehicle, reloaded the gun, exited from his car and ran south on Park Street. Doss followed him in his car driving the wrong way up Park Street, a one-way street, to the vicinity of Bronson Park, which is one block south of Michigan Avenue. There is some evidence that Doss was attempting to run the defendant down, but was prevented from doing so when he collided with a lamppost. He immediately exited from his automobile and, while attempting to approach defendant, was shot in the stomach.

A state police firearms expert testified at trial that three 12-gauge shotgun shells were found at the scene of the crime and that the tests showed that they matched the ones later fired from the gun.

The prosecution alleged that the acts of defendant were willful, deliberate and premeditated.

Defendant, on the other hand, claimed that at the time of the shooting he was acting in self-defense out of fear of the deceased, and that his psychological makeup was such that he could not form the intent to kill anyone.

The six issues raised by the defendant on appeal will be considered seriatim.

I

This issue is divided into two parts: (A) Did the trial court err in failing to advise the jury that they could return a general verdict of not guilty? (B) Was the burden of proof shifted to defendant when the trial judge gave his instruction on malice?

There is an admission in defendant’s brief that the court did begin his instructions by saying "that if the prosecutor did not prove the defendant guilty beyond a reasonable doubt, the jury must find him not guilty”.

This statement was followed up in the general instructions on presumption of innocence, burden of proof, and reasonable doubt as follows:

"Each and every one of you must be satisfied beyond a reasonable doubt after deliberating that the defendant is guilty or you must find him not guilty. You must begin this trial with these principles foremost in your mind. * * * The burden of proof means that every element of the offense charged must be proven by evidence beyond a reasonable doubt. By stating that the prosecution must prove the guilt beyond a reasonable doubt I mean that there must be such evidence as causes you to have a firm conviction, amounting to a moral certainty of the defendant’s guilt. If after considering all the evidence you do not have such a certainty, then that is a reasonable doubt.”

Undoubtedly, the failure to repeat the fact that the jury could find defendant not guilty at the close of the instructions was a mere oversight. The entire panel, before any jury was selected, was advised of this basic rule. The instructions as a whole adequately informed the members of the jury that they could bring in a verdict of not guilty. Under these circumstances it cannot be concluded that the jury, which must have been composed of reasonably intelligent citizens, was misled. Furthermore, counsel did not object to the instructions.

Defendant contends that the trial court made a more serious error when it instructed the jury as follows:

"It is the law that death resulting from an assault in the absence of any proof to the contrary is presumed to be felonious either murder or manslaughter. Where the death is shown to be resulted [sic] from the use of a deadly weapon in the absence of any proof to the contrary, an absence to any testimony in relationship to that, the presumption is that the death was inflicted with malice.”

This instruction was erroneous since malice is an element of the crime of first- and second-degree murder and determination of that element must be made by a jury.

"Michigan has long ago considered malice a permissible inference to be drawn by the jury rather than a presumption of law”. People v Martin,, 392 Mich 553, 561; 221 NW2d 336 (1974).

However, voluntary manslaughter is distinguished from murder by the absence of the element of malice. People v Townes, 391 Mich 578, 589; 218 NW2d 136 (1974).

Here, the jury must have found that the killing, although intentional, was committed under the influence of passion or heat of blood produced by an adequate or reasonable provocation before reasonable time had elapsed for the blood to cool and reason to resume its habitual control. A finding of manslaughter indicates that the jury found no malice, thus the trial court’s charge to the jury, although erroneous, constituted harmless error. People v Swan, 56 Mich App 22, 31; 223 NW2d 346 (1974).

II

Did the trial court commit reversible error in excusing the prosecution from producing witness Tom Hatcher and in ruling that the people had exercised due diligence by their efforts to produce him as a witness?

Prior to the voir dire of the jury on October 22, 1975, a hearing was held to give the prosecution an opportunity to show due diligence in attempting to serve witness Tom Hatcher with a subpoena. Officer Lewandowski testified that he was aware of the fact that Mr. Hatcher had moved to Grand Rapids. He contacted Mr. Hatcher’s mother there and was advised by her that the whereabouts of her son were unknown and that according to the latest information he was in Seattle, Washington and expected to leave for other destinations very soon thereafter. The officer made two additional calls and left his address and telephone number, which would enable the mother to contact him if the location of her son became known.

The trial judge ruled that due diligence had been exercised and commented that perhaps something would be learned as to the address of the witness during the trial.

It is well established, according to both case law and statute, MCL 767.40; MSA 28.980, that the prosecutor has an affirmative duty to endorse and produce all res gestae witnesses to a crime at the time of the trial.

Application of this rule has, however, brought about different interpretations. In People v Serra, 301 Mich 124, 130; 3 NW2d 35 (1942), the Supreme Court stated:

"It is not error for the court to refuse to compel the prosecution to call witnesses whose names are indorsed on the information who are not within the State and answerable to process of the court.”

In People v Ivy, 11 Mich App 427, 431; 161 NW2d 403 (1968), the witness left for New York and the prosecutor made no further efforts whatsoever to contact him. The trial court submitted the question of due diligence to the jury and instructed the members that if they found that the prosecutor had failed to employ due diligence, "they could consider that the witness, if called, would be adverse to the people”. Apparently, the jury was satisfied since defendant was found guilty. Such a procedure was held to be permissible.

In People v Robinson, 390 Mich 629, 634; 213 NW2d 106 (1973), the Supreme Court held that before filing a brief on appeal, a motion for new trial must be made. However, no mention was made of the line of cases holding that a motion for a continuance must be made in order to save the alleged error for review on appeal. See People v Gibson, 253 Mich 476; 235 NW 225 (1931), People v Tiner, 17 Mich App 18, 20-21; 168 NW2d 911 (1969), People v McNary, 43 Mich App 134, 137; 203 NW2d 919 (1972).

In Robinson the witness was not endorsed on the information and no due diligence hearing was held. Therefore, the question remains whether that decision overruled Gibson when a situation such as the one present here exists. Counsel in this case failed to ask for a continuance or make any similar request as permitted under circumstances set out in People v Ivy, supra. Nevertheless, we will consider the issue as presented.

It is well settled that the determination of due diligence rests within the sound discretion of the trial judge. This Court in People v Riley Williams, 57 Mich App 199, 202; 225 NW2d 691 (1974), even though the Gibson rule was still followed, adopted a definition from State v Scott, 110 La 369, 375; 34 So 479 (1903), which reads:

"Due diligence in law means doing everything reasonable, not everything possible.”

In People v Bell, 74 Mich App 270, 274-275; 253 NW2d 726 (1977), this Court said:

"The question of whether due diligence has been shown is a matter for the discretion of the trial court whose decision will be overturned on appeal only where a clear abuse of discretion is shown. People v Rimson, 63 Mich App 1; 233 NW2d 867 (1975). On the basis of the record we find no abuse of discretion.”

Of course, additional efforts to locate the witness could have been made, but we hold on authority of the above cited decisions, when applied to the facts as hereinbefore delineated, that the trial court’s ruling was correct.

Furthermore, it would appear that defendant suffered no injustice because of the inability to produce this witness since there were five other disinterested witnesses in addition to Sally Schippers, an unusually large number, who observed the crime.

Ill

Was defendant denied a fair trial by the prosecution’s injection of certain information into the record concerning the release of various individuals from the Center for Forensic Psychiatry after those individuals had been found not guilty by reason of insanity?

The defense called to the stand Dr. Dennis Co-son, a psychiatrist employed at the Center for Forensic Psychiatry at Ypsilanti, in order to prove the state of defendant’s mind at the time of the shooting. During cross-examination, in an attempt to discredit the witness, the prosecutor inquired about two citizens being prematurely released from the center who later committed serious crimes.

Clearly this testimony was irrelevant and the objection to the admission thereof should have been sustained.

Generally, the extent and control of cross-examination in a criminal prosecution is within the discretion of the trial court. People v DeLano, 318 Mich 557; 28 NW2d 909 (1947), People v Flenon, 42 Mich App 457, 467; 202 NW2d 471 (1972).

However, an error in the admission or exclusion of evidence will result in harmless error and will not require reversal unless it results in a manifest injustice. GCR 1963, 529.1, MCL 769.26; MSA 28.1096.

A two-pronged test to determine when reversible error has been committed was articulated in People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972):

" 'Where it is claimed that error is harmless, two inquiries are pertinent. First, is the error so offensive to the maintenance of a sound judicial process that it never can be regarded as harmless? * * * Second, if not so basic, can we declare a belief that the error was harmless beyond a reasonable doubt?’ ”

The purpose of the first step in determining whether an error is harmless is "to deter prosecutorial misconduct and to safeguard those individual rights which are so fundamental that the impact of their violation cannot be fully assessed”. People v Christensen, 64 Mich App 23, 33; 235 NW2d 50 (1975).

This was a long trial with many witnesses and a huge amount of testimony for the jury to consider. This error, when taken alone, could not have misled the jury and, therefore, would not be so fundamental as to result in a manifest injustice.

Although we do not condone the questions asked by |he prosecutor, we find that the evidence was so overwhelming that reasonable jurors could find defendant guilty beyond a reasonable doubt and it is not reasonable to conclude that, absent the errors now complained of, even one juror would find defendant not guilty.

IV

Was defendant denied a fair trial by the court’s ruling that his attorney could not have access to the letters written by him when they were first presented to refresh his memory?

During the cross-examination of defendant by the prosecutor, four letters allegedly written by the witness to Sally Schippers were brought to defendant’s attention.

Following a colloquy between the attorneys and the court it was decided that the letters could be used for the purpose of refreshing defendant’s memory, not for impeachment, and that counsel for defendant could not see them unless they were admitted into evidence.

When a witness testifies from memory, after being refreshed by a writing, his testimony is what is introduced into evidence and not the writing. People v Thomas, 359 Mich 251; 102 NW2d 475 (1960), People v Turner, 59 Mich App 589; 229 NW2d 861 (1975).

In the present case defense counsel was eventually allowed the right to examine the letters. After doing so, he stated that ordinarily he would have no objections to their admission into evidence, but he objected here because of notes made on the letters by the prosecutor.

Under the circumstances here present we hold that any error in initially denying defense counsel access to the letters was harmless under GCR 1963, 529.1, MCL 769.26; MSA 28.1096.

Furthermore, defendant was not prejudiced by the erroneous ruling since portions of the letters read to the jury presented nothing in addition to that which was testified to by other witnesses.

V

Did the trial court commit reversible error by preventing a defense expert witness from testifying as to his opinion, which had been formed as a result of information obtained while defendant was under the influence of sodium brevital, a so-called "truth serum” drug?

Dr. Ames Robey, former head of the center at Ypsilanti, was called as another expert by defendant in order to show the state of mind of the latter at the time of the shooting. The witness testified that in his opinion there was no wilful intent on the part of defendant to take a life, but that there was an intent to protect himself. No objections were raised to this testimony, but objections were made when there was an effort to bolster this opinion by facts obtained while defendant was under the influence of sodium brevital. The trial court sustained the objection on the ground that the witness could not "disassociate” himself from what he learned during that period.

It is argued in defendant’s brief that the "sodium brevital may or may not be admissible,” but that the facts obtained thereby should not be excluded.

The authorities in other jurisdictions are divided on this issue and up to the present time, this was a matter of first impression in Michigan. However, another panel of this Court in People v Cox, 85 Mich App 314; 271 NW2d 216 (1978), has decided the issue in a way that supports the conclusion of the trial judge and is controlling.

After considering the parallel with the admissibility of polygraph results and decisions in other states, the writer of that opinion stated:

"The large majority of states which have applied this type of standard to truth serum evidence has found it lacking in scientific recognition and accordingly excluded it from admission. See 3 Wharton’s Criminal Evidence (13th ed), § 630, pp 249-253; Anno: Admissibility of physiological or psychological truth and deception test or its results to support physician’s testimony, 41 ALR3d 1369.
"Applying this test to the case at bar, we find that the trial judge correctly ruled that the results of the brevital sodium test, and the witness’s opinions relating to those results, were inadmissible. The psychiatrist himself admitted upon inquiry from the court that there was no medical evidence or studies on the reliability of this drug as a truth serum. Absent such evidence, the court was obligated to rule that the testimony was too uncertain to be allowed before a jury, where it would have had a potentially significant impact.” 85 Mich App at 317-318. (Footnote omitted.)

The same reasoning which was applied in People v Cox, supra, applies here and, therefore, the trial judge did not err in excluding the testimony of Dr. Robey.

VI

Was defendant denied due process of law and a fair trial when his attorney was denied access to reports regarding the deceased having a switchblade knife in his possession at the time of the shooting?

Counsel, prior to trial, filed a motion requesting the examination of the shotgun, clothing of the deceased, diagrams and reports. The court granted certain examinations, but denied access to any reports concerning a switchblade knife alleged to have been in the possession of the deceased at the time of the incident.

There are some variations among different panels of this Court as to just how an issue of this type should be disposed of.

In People v Nkomo, 75 Mich App 71, 75; 254 NW2d 657 (1977), we find this statement:

"GCR 1963, 785.1(2) expressly excludes the application of discovery rules in criminal cases. A discovery motion in a criminal case, then, is addressed to the trial court’s sound discretion.”

A similar ruling can be found in People v Ranes, 58 Mich App 268, 274; 227 NW2d 312 (1975).

The tone for more liberal thinking was sounded in People v Johnson, 356 Mich 619, 621; 97 NW2d 739 (1959):

"The legal concept of a criminal trial has changed considerably in modern times. It is seen less as an arena where 2 lawyer gladiators duel with the accused’s fate hanging on the outcome and more as an inquiry primarily directed toward the fair ascertainment of truth.”

In People v Walton, 71 Mich App 478, 481-482; 247 NW2d 378 (1976), this Court said:

"Traditionally, information sought by a defendant is discoverable when, in the sound discretion of the trial court, the object sought is admissible into evidence and the suppression of it might result in a failure of justice. * * * But, discovery has not been limited exclusively to whether the information sought was admissible at trial. Rather, the focus has shifted to whether fundamental fairness to the defendant, in preparing his defense, requires that he have access to the requested information.”

The last sentence, above quoted, appears to be the key by which the issue should be judged. From this standpoint it is difficult to understand why a report of this type should be suppressed particularly in view of the defense employed by defendant. Accordingly, we hold that the trial court abused its sound discretion in this matter.

However, we hasten to add that the error was harmless for the following reasons:

1. Defendant testified on direct examination that he saw something in the hand of the deceased, but did not know what it was.

2. Two police officers testified that a knife was taken from the right front pocket of the deceased while the latter was in the emergency ward of the hospital. Therefore, the fact that Doss had such a knife was before the jury to consider and accordingly defendant suffered no injustice as a result of the error.

As previously noted, defendant was charged with first-degree murder, but found guilty by the jury of voluntary manslaughter. That term is defined in 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1658, p 2002:

"Voluntary manslaughter is the killing of another intentionally, but in a sudden heat of passion, due to adequate provocation, but without malice.”

Examination of the various elements gleaned from the record after the surplusage has been removed clearly shows that the jury was justified in reaching this verdict.

The facts in support thereof are that: defendant armed himself with a shotgun following a dispute over a girl friend. Any man who does that and then returns to face the enemy is asking for trouble. Sally Schippers testified that when defendant came to the door of the gas station, he shouted: "Don’t make a move or I’ll kill you”. After his car was rammed, he fired two shots through the back window of the car owned by the deceased. He reloaded the gun in order to have it ready for immediate action if necessary. And, there were three shells found at the site of the shooting.

The intention to kill was clear from defendant’s own statement and from his actions, which speak for themselves. He was provoked by a man thought to be stealing his girl friend, which in itself would bring about the "sudden heat of passion”.

Further, it should be observed that the motion for a new trial was heard almost two years after the conviction. Such a practice, which could have been planned, is looked upon with disfavor by the courts. People v Johnson, 386 Mich 305, 310; 192 NW2d 482 (1971).

As further support for this reasoning, we quote again from 2 Gillespie, Michigan Criminal Law & Procedure (1978 rev ed), § 726, p 395:

"In such cases, if a new trial is granted, the prosecution is handicapped in presenting a new case for the people, and defendant often goes free because the long lapse of time has made it impossible to procure the attendance of witnesses against him.”

A similar statement, recently published, says:

"The granting of a motion for new trial is discretionary with the trial court, and is not granted unless it is affirmatively shown that the error complained of has resulted in a miscarriage of justice. The Michigan Court Rules list grounds for which a new trial may be granted. The combination of relevant statutes and rules has resulted in the court’s careful scrutiny of demands for new trial.” (Footnotes omitted.) Note: People v Barbara: The Admissibility of Polygraph Test Results in Support of a Motion for New Trial, 1978 Det Coll L Rev 347, 350.

All trial judges are fully cognizant of the fact that it is virtually impossible to conduct litigation of this type, especially with the dramatic overtones present here, without some errors creeping into the proceedings. After all, a person charged with a crime is entitled to a fair trial — not a perfect one. People v Williams, 11 Mich App 62, 66; 160 NW2d 599, 601 (1968).

Defendant was represented by competent counsel during the long and tedious trial. On appeal, his attorney has presented in his behalf an excellent brief in which the errors, heretofore considered, were set forth in detail.

Following a careful review of the record, the issues raised, and the entire proceedings, we find no justificable reasons why a new trial should be granted at this late date.

Affirmed.