text:
    OAKLAND COUNTY v CITY OF DETROIT
    1. Municipal Corporations — Sewers—Sewer Rates — Constitutional Law — Statutes.
    A city may extend its sewer service beyond the city limits and may collect charges for the cost of such service, including a fair rate of return on the value of the property devoted to providing the sewer service (Const 1963, art 7, §24, MCLA 117.4f[4]; MSA 5.2079[4]).
    2. Municipal Corporations — Sewers—Sewer Rates — Reasonableness.
    The rate charged by a city for its sewer service is presumed to be reasonable in the absence of a showing that the rate is capricious, arbitrary, or unreasonable.
    3. Constitutional Law — Equal Protection — Legislative Classifications — Reasonableness.
    The Equal Protection Clause of the Fourteenth Amendment does not take from the state the power to classify in the adoption of police laws but allows the exercise of discretion in that regard, avoiding what is done only when it is without any reasonable basis and is therefore purely arbitrary (US Const, Am XIV).
    4. Constitutional Law — Equal Protection — Classifications.
    A classification having some reasonable basis does not offend against the Equal Protection Clause merely because it is not made with mathematical nicety or because in practice it results in some inequality (US Const, Am XIV).

      References for Points in Headnotes
    [1, 7] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 568.

       56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 574.

       16 Am Jur 2d, Constitutional Law § 506.

       16 Am Jur 2d, Constitutional Law § 512.

       16 Am Jur 2d, Constitutional Law § 174.

       Discrimination between property within and that outside municipality or other governmental district as to rates for use of sewers. 4 ALR2d 610.

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

       30 Am Jur 2d, Evidence §§ 1040, 1069, 1070, 1072.

       4 Am Jur 2d, Appeal and Error § 521.
    5 Am Jur 2d, Appeal and Error § 738.

      5. Constitutional Law — Classifications—State of Facts.
    Any state of facts which reasonably can be conceived that would sustain a classification must be assumed to have existed at the time such a law was enacted, where such classification is called into question.
    6. Constitutional Law — Classifications—Arbitrariness—Burden of Proof.
    One who assails a classification carries the burden of showing that the classification does not rest upon any reasonable basis, but is essentially arbitrary.
    7. Municipal Corporations — Sewers—Sewer Rates — Municipal Customers — Suburban Customers.
    A city sewer system is justified in charging a higher rate to customers located outside the city than it charges to customers within the city because the city incurs costs related to operation of the sewage treatment system which the suburbs do not, such as police and fire protection for the treatment plant, the risk of tort liability arising from the system’s operation, and the loss of tax base resulting from devoting land to a tax-free utility, and because the suburban areas served by the sewer may have an enhancement in valuations which the city can not tax.
    8. Appeal and Error — Appellate Courts — Function.
    The function of an appellate court is restricted to the test of questions which, in the court below, have been raised and saved for review, and a claim not so raised should not be considered by an appellate court, even if the claim may be of some merit and even if it is a constitutional question.
    9. Evidence — Parol Evidence — Contracts—Admissibility.
    The question in a case involving parol evidence is whether the proffered parol evidence is inconsistent with the written language of the contract; if there is no inconsistency, the parol evidence is admissible.
    10. Evidence — Erroneous Exclusion — Reversal.
    The erroneous exclusion of evidence does not require reversal unless it has caused a denial of substantial justice.
    Appeal from Iosco, Allan C. Miller, J.
    Submitted December 7, 1977, at Lansing.
    (Docket No. 30710.)
    Decided February 7, 1978.
    Leave to appeal applied for.
    Complaint by the County of Oakland against the City of Detroit, its Board of Water Commissioners, and the Detroit Metro Water Department challenging the rates charged for sewage treatment to those customers located outside the City of Detroit and in Oakland County, and for breach of contract. Judgment for defendant. Plaintiff appeals.
    Remanded.

      Fraser, Trebilcock, Davis & Foster (by Michael H. Perry) (Robert H. Fredericks, II, of counsel), for plaintiff.

      Dyer, Meek, Ruegsegger & Bullard (by Richard J. McClear), for defendant.
    Before: R. B. Burns, P. J., and Allen and R. M. Maher, JJ.
   Per Curiam.

The County of Oakland appeals the trial court’s determination that the sewage treatment costs adopted by the City of Detroit and charged Oakland County residents are fair, reasonable and properly related to the costs incurred for providing the services received. The court ruled that the City of Detroit could charge its resident customers $.75 per 1,000 cubic feet of sewage while charging suburban customers $.89 per 1,000 cubic feet. It found the $.14 differential a reasonable 7% rate of return on investment.

Plaintiff Oakland County alleges that defendant city has no right to charge suburban customers more for sewage treatment than city residents are charged; and that the City of Detroit, by charging more to its suburban customers, has breached contracts with three sewer districts in Oakland County. The contracts call for an assessment of "reasonable rates”.

The Michigan Constitution, Const 1963, art 7, § 24, allows a city to extend its sewer treatment lines beyond city limits. MCLA 117.4f(4); MSA 5.2079(4), part of the home rule act, allows a city to provide in its charter for the extension of sewer service beyond city limits and to collect charges for the cost of such service. A part of the charge a city collects may include a fair rate of return on the value of the property devoted to providing sewer service.

A city’s sewage rate is presumed to be reasonable in the absence of a showing that it is capricious, arbitrary, or unreasonable. Detroit v Highland Park, 326 Mich 78; 39 NW2d 325 (1949).

At issue in the instant case is the classification made by the City of Detroit by which nonresidents, unlike city residents, are charged an extra rate of return for sewage treatment. Plaintiff argues that the classification is unfair and that the extra charge constitutes an unreasonable rate.

The standards to be applied in evaluating the reasonableness of a municipality’s system of classification are summarized in Land v Grandville, 2 Mich App 681; 141 NW2d 370 (1966).

" T. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.’ ” 2 Mich App at 690.

Plaintiff contends that since it costs the same to treat the city’s and the suburbs’ sewage, the sewage rate should be the same for both and that since the rate is not the same the classification is unjust.

Costs attributable solely to sewage treatment and costs associated with the financing of the sewage treatment system are the same for city and suburbs. But to focus on these costs alone is to ignore other costs related to sewage treatment which the city incurs while the suburbs do not. The city supplies police and fire protection for the treatment plant. It faces the risk of tort liability arising out of the operation of the system. Because the water department pays no taxes, the city loses a large amount from its tax base. The suburbs, however, receive sewage treatment without having to devote any of their land to a tax free utility.

City areas with connection to the sewage treatment system have higher valuations than areas which do not have the utility. The city levies and collects taxes on this enhanced value. Suburban areas, not taxed by the city, receive the same benefits of enhanced value but bear no part of the additional burden. See Faxe v Grandview, 48 Wash 2d 342; 294 P2d 402 (1956), Town of Terrel Hills v San Antonio, 318 SW2d 85 (Tex Civ App, 1958).

Plaintiff suggests that when city taxpayers are not liable for the utility’s revenue bonds, as is the case here, no rate difference should be allowed. That city taxpayers are not directly liable for the bonds is of little moment. Plaintiff’s argument ignores the above mentioned indirect costs that the city residents must pay but from which their suburban counterparts are free. Detroit taxpayers must pay for fire and police protection of the system and must compensate for the utility’s tax exemption by paying higher taxes.

Hence, the rate difference is justified. One could reasonably view the extra amount which the Oakland County residents pay directly as tantamount to the sums paid, indirectly, by City of Detroit residents.

Oakland County’s objections based on the Revenue Bond Act, MCLA 141.101 et seq.; MSA 5.2731 et seq., and on the Federal Water Pollution Control Act, 33 USCA 1251 et seq., are not properly before this Court. Plaintiff failed to raise the issues at trial and is thus precluded from asserting it here. The function of an appellate court is restricted to the test of questions which, in the court below, have been raised and saved for review. Swartz v Laurencelle, 371 Mich 153; 123 NW2d 244 (1963). This is true even if the claim may be of some merit and even if it is a constitutional question. Falk v Macomb County Civil Service Commission, 57 Mich App 134; 225 NW2d 713 (1974).

In any event, we would reject plaintiff’s claim. The revenue bond act contains no limitation or directive as to what methods of developing rates may or shall be used by the governing body of the borrower. To determine what rates and charges can lawfully be fixed by a city, this Court defers to the home rule "act, MCLA 117.4(f)(4); MSA 5.2079(4). This section of the act specifically provides that a municipality may fix "charges” for its sewage service and that such may include a fair rate of return.

As a substantive matter, the Federal Water Pollution Control Act does not apply in the instant case. Oakland County contends it is paying more than its proportionate share of the treatment costs, as the statute requires. Since the Water Pollution Control Act does not define treatment costs, we again defer to state law. In Meridian Twp v East Lansing, 342 Mich 734; 71 NW2d 234 (1955), the Court determined that "[p]rudent business administration requires that the item of costs incurred include, among others, operating expenses, upkeep of the property, and a fair return on the value thereof’, 342 Mich at 751. (Emphasis supplied.)

During trial plaintiff attempted to introduce its proposed exhibit number 22 which, it is alleged, demonstrated that the transportation rate for providing sewage disposal service was estimated on a "cost” basis. Plaintiff contends that the proposed exhibit would have helped the trial court in its efforts to construe the term "reasonable in relation to costs” in the contracts. The trial court ruled that the evidence arose out of negotiations and that it attempted to give a specific meaning to the term "reasonable” which was not explained in the contract and would, therefore, be varying the terms of the contract and contrary to the parol evidence rule.

Defendant city’s contention, that the issue has not been properly preserved for review, is without merit. Plaintiff made an offer of proof sufficient to comply with GCR 1963, 604. See Hes v Haviland Products Co, 6 Mich App 163; 148 NW2d 509 (1967), Schwartz v Davis Mfg Co, 32 Mich App 451; 189 NW2d 1 (1971).

In Goodwin, Inc v Orson E Coe Pontiac, Inc, 392 Mich 195, 204; 220 NW2d 664 (1974), the Supreme Court stated the parol evidence rule in these terms: "Where a contract is clear and unambiguous, parol evidence of negotiations cannot be admitted to vary the contract.” The Court noted several exceptions to the rule, one of which allowed the admission of parol evidence to explain ambiguous language in the contract. The Court propounded the following rules concerning clarification of ambiguous terms:

"1) Where ambiguity may exist in a contract, extrinsic evidence is admissible to prove the existence of ambiguity.
"2) Where ambiguity may exist in a contract, extrinsic evidence is admissible to indicate the actual intent of the parties.
"3) Where ambiguity exists in a contract, extrinsic evidence is admissible to indicate the actual intent of the parties as an aid in the construction of the contract,” 392 Mich 209-210.

In Union Oil Co v Newton, 397 Mich 486; 245 NW2d 11 (1976), however, the Court, in a perceptible shift, adopted a modified interpretation of the parol evidence rule. Newton noted that the real question in a case involving parol evidence is whether or not the proffered parol evidence "is inconsistent with the written language. If there is no inconsistency, the parol evidence is admissible.” 397 Mich at 488. In support of this, the Court cited Restatement 2d, Contracts, § 239(1), which reads, "A binding integrated agreement discharges prior agreements to the extent that it is inconsistent with them”. 397 Mich at 488, n 1. (Emphasis in original.)

In Michigan National Bank v Holland-Dozier- Holland Sound Studios, 73 Mich App 12; 250 NW2d 532 (1976), a panel of this Court held, and we believe correctly, that Newton had surreptitiously reversed Goodwin. The Court interpreted the word "inconsistent” to be synonymous with "contradictory”. Using the standards articulated in Newton and Holland-Dozier-Holland, we do not find the exhibit offered by plaintiff to be inconsistent with or contradictory to the written language of the contract, viz., "reasonable in relation to the cost”.

Rather, the exhibit may, perhaps, explain what "reasonable in relation to the cost” means. There is clearly a misunderstanding about this term’s definition. The basic issue in the case is whether the parties intended or knew that a rate of return was to be a cost for which the suburbs were liable. In cases of misunderstanding, the court must inquire into the meaning that each party attached to the term in question.

GCR 1963, 529 provides that if the trial judge erroneously excludes evidence this will not require reversal unless it has caused a denial of substantial justice. The evidence here excluded would have helped the court interpret the contract in question. The evidence went to the heart of the issue before the court. Since it might have altered the outcome of the case, its exclusion was reversible error.

Accordingly, the cause is remanded to the trial court for its consideration of the document in question. Should the court still find that a rate of return can be charged despite the contract, such a rate of return is, as a matter of law, proper.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    WAYNE COUNTY PROSECUTOR v RECORDER’S COURT JUDGES
    1. Courts — Superintending Control — Generalized Practices.
    Superintending control is the proper remedy for challenging the generalized practices of a court.
    2. Bail — Recorder’s Court — Recognizance Bonds — Default— Hearing — Court’s Discretion — Statutes.
    Any person against whom the default of a recognizance bond may have been entered by a Recorder’s Court has a right to apply to that court within 20 days after the judgment for vacation of the judgment for good and sufficient cause shown, and the court in its discretion may vacate such judgment on such terms as it may deem just; a surety against whom a judgment of forfeiture of a recognizance bond has been entered may address a petition for relief in the Recorder’s Court issuing the judgment after the 20 day period and seek the discretion of the court.
    3. Appeal and Error — Recorder’s Court — Bail—Recognizance Bonds — Sureties—-Forfeiture of Bonds — Relief.
    A surety seeking remittance of a forfeited recognizance bond may appeal to the Court of Appeals if he fails to obtain the requested relief in Recorder’s Court.

      4. Bail — Recorder’s Court — Recognizance Bonds — Forfeiture of Bonds — Sureties—Courts—Judges—Progress of Assigned Cases — Court Rules.
    A surety seeking remittance of a bond ordered forfeited by the Recorder’s Court must seek relief initially from the Recorder’s Court judge who ordered the forfeiture of the bond because this judge is responsible for the progress and ultimate disposition of the cases and proceedings on his docket of assigned cases (RCR 16.4).

      References for Points in Headnotes

       4 Am Jur 2d, Appeal and Error § 17 et seq.

       8 Am Jur 2d, Bail and Recognizance §§ 201, 202.

       8 Am Jur 2d, Bail and Recognizance § 206.

       8 Am Jur 2d, Bail and Recognizance § 201.

       8 Am Jur 2d, Bail and Recognizance §§ 139-143.

       46 Am Jur 2d, Judges § 47.

       8 Am Jur 2d, Bail and Recognizance § 203.

      5. Courts — Recorder’s Court — Judges—Reassignment of Petitions —Bail—Recognizance Bonds — Forfeiture of Bonds — Reinstatement of Bonds^-Court Rules.
    One Recorder’s Court judge may reassign a matter to another Recorder’s Court judge provided the order of reassignment is signed by both judges; without such signed orders it is entirely improper for one Recorder’s Court judge to entertain a petition to reinstate a recognizance bond which was ordered forfeited by another judge of co-equal power (RCR 16.11).
    6. Courts — Judges—Recorder’s Court Judges — Judge’s Discretion —Statutes.
    A Recorder’s Court judge may not review or revise any order, judgment, sentence or act of any other Recorder’s Court judge involving the personal discretion, judgment or opinion of such other judge (MCLA 726.2; MSA 27.3552).
    7. Bail — Recognizance Bonds — Forfeiture of Bonds — Hearing— Notice to Prosecutor — Void Petitions — Court Rules.
    An application for the remission of penalties, including the remittance of forfeited recognizance bonds, may not be heard until reasonable notice has been given to the prosecuting attorney and until he has an opportunity to examine the matter and to prepare to resist such application; orders for the remittance of forfeited recognizance bonds which are based on petitions filed without proper notice to the prosecutor’s office are void (GCR 1963, 108.4, 110.2, 772.4).
    Original action in the Court of Appeals.
    Submitted November 16, 1977, at Detroit.
    (Docket Nos. 31270-31279.)
    Decided February 7, 1978.
    Leave to appeal applied for.
    Complaint in the Court of Appeals by the Wayne County Prosecutor for superintending control seeking relief from a series of orders which set aside bond forfeitures and remitted bail in certain criminal cases. Charles B. Goldfarb was added as a party defendant by order of the Court of Appeals. Referred to Recorder’s Court of Detroit for further proceedings.

      William L. Cahalan, Prosecuting Attorney, Patrick J. Foley, Robert H. Healy and John E. Steele, Assistants Prosecuting Attorney, for plaintiff.

      Norman L. Zemke, for defendant.
    Before: Bronson, P. J., and Allen and T. M. Burns, JJ.
   Per Curiam.

The Wayne County Prosecutor, in a complaint for superintending control, seeks relief from a series of orders which set aside bond forfeitures and remitted bail in 10 criminal cases in Detroit Recorder’s Court. The prosecutor alleges that in these 10 cases various Recorder’s Court judges other than Clarence Laster, Jr. and James Del Rio ordered the forfeiture of surety bonds after the individual defendants failed to appear for trial. Subsequently, in each case, defendant-appellee Goldfarb, as attorney in fact of the surety, filed a petition for reinstatement of bond forfeiture before either Judge Laster or Judge Del Rio. No notice was given to the prosecutor’s office of these motions. In all 10 cases, Judges Laster and Del Rio ordered the forfeited bail remitted to defendant Goldfarb.

The prosecutor alleges that these 10 cases are representative of some 90 similar cases in which Judges Laster and Del Rio remitted forfeited bonds to Goldfarb. Furthermore, it appears that no records are available in the 10 cases involved in this appeal. Consequently, we remand these causes to Recorder’s Court for hearings on the merits before an independent judge. Because the legal issues are clear, we will address them here to provide a legal framework for the hearings we have ordered.

I.

The first alleged procedural error was the review by Judges Laster and Del Rio of the orders of other Recorder’s Court judges forfeiting bonds in cases in which defendants had failed to appear for trial.

Recorder’s Court procedure for default of recognizance bonds which are posted by sureties is governed by MCLA 726.14; MSA 27.3564:

"[W]henever defaults shall be made in any such recognizance, such default shall be duly entered of record in said recorder’s court, and thereafter said court shall, upon the motion of the prosecuting, or city attorney, summarily enter judgment against all parties liable on said recognizance for the full amount thereof: Provided, however, That any person against whom such judgment may have been entered, shall have the right to apply to the court within 20 days after the rendition of such judgment, for the vacation of the same for good and sufficient cause shown, and said court may in its discretion, vacate such judgment on such terms as it may deem just. Execution shall be awarded and executed upon said judgment, in like manner as is provided in personal actions.”

If the surety fails to seek review within 20 days of the judgment of forfeiture, it may address a petition for relief after that period and seek the discretion of the court. See People v Judge of Recorder’s Court; 23 Mich App 126; 178 NW2d 146 (1970).

If a surety seeking remittance of a forfeited bond fails to obtain the requested relief in Recorder’s Court, the surety may appeal to this Court. People v Glumb, 42 Mich App 166; 201 NW2d 282 (1972).

In all cases, the surety must seek relief initially from the Recorder’s Court judge who ordered the initial bond forfeiture. RCR 16.4 provides:

"Each regular judge of this court shall be responsible for the progress and ultimate disposition of the cases and proceedings on his docket of assigned cases. He shall hear and determine all motions and preliminary matters, and shall conduct the pre-trials, the trials and all post-conviction proceedings in such cases assigned to him.”

While it is possible for a judge to reassign a matter to another judge, according to RCR 16.11, the order of reassignment must be signed by both judges. We find no allegations that such orders were employed.

Without these orders, it would be entirely improper for one Recorder’s Court judge to entertain a petition to reinstate a recognizance bond which was ordered forfeited by another judge of co-equal power. MCLA 726.2; MSA 27.3552 provides that in Recorder’s Court:

"No judge of said court shall review or revise any order, judgment, sentence or act of any other judge of said court, involving the personal discretion, judgment or opinion of such other judge.”

If the judges who originally ordered the forfeiture of bonds, or the successors of those judges, are active members of Recorder’s Court, no other judges may vacate or overrule those orders without a formal reassignment of the cause. See People v Paille #1, 383 Mich 605; 178 NW2d 469 (1970). Judges of co-equal authority lack jurisdiction to set aside the orders of bond forfeiture issued by their fellow judges. See Wilson v Romeos, 387 Mich 664, 678; 199 NW2d 208 (1972). In short, the only proper method by which defendant Goldfarb could seek review of judgments forfeiting the bonds was to petition the original trial judge for relief or to seek review by this Court. See, also, In The Matter of Del Rio, 400 Mich 665; 256 NW2d 727 (1977).

II.

In addition to the requirement that the petition for remittance of a forfeited bond be filed before the judge who ordered the forfeiture, a court rule mandates that the prosecutor’s office receive notice of the petition. GCR 1963, 772.4 provides:

"No application for the remission of penalties may be heard until reasonable notice has been given to the prosecuting attorney, and until he has had an opportunity to examine the matter and prepare to resist such application; nor shall such application in any case be granted without payment of the costs and expenses incurred in the proceedings for the collection of such penalty.”

The specific requirement of GCR 1963, 772.4 concerning the remittance of forfeited bonds comports with the general notice requirements for motions under GCR 1963, 110.2 and GCR 1963, 108.4. Orders for the remittance of forfeited bonds which are based on petitions filed without proper notice to the prosecutor’s office are void.

Because of the unsettled nature of the facts in these 10 causes and the possible existence of similar cases, this Court reserves judgment on the propriety of the orders from which the Wayne County Prosecutor seeks relief. In the framework of the above statement of the law, these causes are remanded to Recorder’s Court for hearings before a completely independent circuit judge on the merits of the individual cases. See GCR 1963, 710.7(3). The Recorder’s Court administrator is directed to appoint a suitable substitute judge, not a member of the Recorder’s Court or Wayne County benches, to conduct appropriate hearings. The appointed circuit judge shall hear these causes as well as any additional actions which involve allegedly improper remittances of forfeited recognizance bonds by Recorder’s Court judges. He shall determine in each case if the order of Judges Del Rio or Laster remitting bond was valid under the principles we have stated. In the event an order is declared void, the surety may seek remittance anew, utilizing the proper procedure.

We retain no further jurisdiction.

       Defendant Goldfarb argues that superintending control is unavailable to plaintiff at this time, as an adequate remedy (appeal in each case) is available. See GCR 1963, 711.2. This issue is controlled by Cahill v 15th District Judge, 70 Mich App 1; 245 NW2d 381 (1976), in which, on similar facts, the Supreme Court held that superintending control was the proper remedy for challenging the generalized practices of a court. Additionally, we hold that Goldfarb was properly added as a party defendant. See GCR 1963, 205.1; MCLA 600.2041; MSA 27A.2041. See, also, GCR 1963, 820.1(2).
      The other issues raised by Goldfarb on appeal are meritless.

       MCLA 765.28; MSA 28.915 also prescribes a procedure for default on a recognizance bond posted by a surety. MCLA 726.14; MSA 27.3564 seems to be more directly applicable to Recorder’s Court. We need not decide, however, which procedure controls; Goldfarb’s actions, on the facts alleged by the prosecutor, violated either procedure.

       The term "penalty” includes forfeited recognizances. See GCR 1963, 772.2; MCLA 600.4801; MSA 27A.4801.


text:
    PEOPLE v PANGBURN
    1. Criminal Law — Appeal and Error — Habitual Offender — Prior Convictions — Collateral Attack — Right to Counsel.
    As a general rule a defendant who has been convicted of being an habitual offender may not in the appellate review of that conviction have a consideration of the allegation that the prior convictions which are the basis for the habitual offender conviction are constitutionally infirm where the prior convictions have never been appealed in their own right and were first subjected to collateral attack through the appeal of the habitual offender conviction; however, cases involving the issue of the right to counsel are uniquely distinguished by the retroactivity accorded them and a review is mandated where the collateral attack on appeal involves the claim that the defendant was neither properly informed nor clearly waived his right to appointed counsel.
    2. Criminal Law — Constitutional Law — Habitual Offender— Prior Convictions — Invalid Conviction — Resentencing.
    A defendant’s conviction as a third felony offender should stand, even though the defendant’s conviction on one of the earlier charges was constitutionally invalid, where the defendant still had three felony convictions without regard to the invalid conviction; however, the matter should be remanded for resentencing on the assumption that the court may have considered the invalid conviction in its sentence, and on resentencing, consideration of the invalid conviction should be avoided.
    Appeal from Sanilac, Allen E. Keyes, J.
    Submitted January 5, 1978, at Lansing.
    (Docket No. 31372.)
    Decided February 7, 1978.
    References for Points in Headnotes

       39 Am Jur 2d, Habitual Criminals and Subsequent Offenders §§31, 32.

       21 Am Jur 2d, Criminal Law § 585.
    39 Am Jur 2d, Habitual Criminals and Subsequent Offenders §§ 9,. 30.

      Jack F. Pangburn was convicted of being a third felony offender. Defendant appeals.
    Affirmed, but remanded for resentencing.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James Marcus, Prosecuting Attorney, and Robert W. Barnes, Assistant Prosecuting Attorney, for the people.

      Richard P. Riordan, for defendant on appeal.
    Before: V. J. Brennan, P. J., and D. E. Holbrook and R. B. Martin, JJ.

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

   Per Curiam.

Defendant Jack Frederick Pang-burn was tried by a jury on September 16, 1976, pursuant to a supplemental information charging him as a third felony offender, contrary to MCLA 769.11; MSA 28.1083. Defendant was found guilty and sentenced, on October 15, 1976, to a prison term of from 20 to 30 years. Defendant appeals as of right under GCR 1963, 806.1.

Defendant’s prosecution as an habitual offender was grounded upon (1) conviction on May 7, 1962, for breaking and entering, contrary to MCLA 750.110; MSA 28.305, (2) conviction on February 4, 1963, for carrying a concealed weapon, contrary to MCLA 750.227; MSA 28.424 and (3) convictions on May 7, 1976, for second-degree criminal sexual conduct, contrary to MCLA 750.520(c)(1)(e); MSA 28.788(3)(l)(e), and larceny from a person, contrary to MCLA 750.357; MSA 28.589. Defendant’s two felony convictions in 1976 were jury convictions. Under consideration on the present habitual offender charge, then, were four separate felony convictions. On appeal, defendant alleges one principal claim of error.

Defendant contends that the underlying prior guilty plea conviction for carrying a concealed weapon obtained on February 4, 1963, is constitutionally invalid and so was inappropriate to consider in determining the charge against defendant as a third felony offender.

Defendant properly moved at trial to exclude the conviction for carrying a concealed weapon due to the fact that defendant was not properly apprised during those proceedings of his right to appointed counsel. Consequently, the trial court was given adequate opportunity to pass upon defendant’s constitutional challenge. People v Covington, 70 Mich App 188, 195; 245 NW2d 558 (1976). See also People v Henry, 395 Mich 367, 376; 236 NW2d 489 (1975).

Generally, on appeal of an habitual offender prosecution, when defendant argues infirmity in a prior conviction, even an error of constitutional dimension, we have denied review in instances where the allegedly infirm prior conviction has never been properly appealed in its own right but is first subject to collateral attack on review of the presently appealed habitual offender prosecution. People v Mays, 77 Mich App 389, 390-391; 258 NW2d 87 (1977), People v Hendrick, 52 Mich App 201, 207; 217 NW2d 112 (1974), aff'd, 398 Mich 410; 247 NW2d 840 (1976).

However, unlike those cases, the matter before us now involves the claim that defendant was neither properly informed nor clearly waived his right to appointed counsel if indigent. See Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963), Argersinger v Hamlin, 407 US 25; 92 S Ct 2006; 32 L Ed 2d 530 (1972). See also Burgett v Texas, 389 US 109; 88 S Ct 258; 19 L Ed 2d 319 (1967), United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972), People v Moore, 391 Mich 426; 216 NW2d 770 (1974). We find cases involving the right to counsel question as uniquely-distinguished by the retroactivity accorded them, which mandates review in this case despite the fact that considerations of collateral attack would normally preclude review. See United States v Tucker, supra, at 445-448; People v Moore, supra, at 437.

Having determined review necessary and proper in this matter, we find defendant correctly complied with the procedure required at the trial level and on appeal. People v Moore, supra, at 440-441. Our review of the court’s decision concerning the conviction for carrying a concealed weapon in 1963 convinces us that defendant neither was properly informed of his right to appointed counsel if indigent nor clearly waived the right. However, even with the elimination of this conviction from consideration of defendant’s status as an habitual offender, still we find three valid felony convictions upon which the jury could have based their third felony offender verdict. Consequently, we affirm defendant’s conviction but remand for resentencing on the assumption the court may have considered the invalid conviction in its sentence. On resentencing, consideration of this conviction should be avoided.

Affirmed but remanded for resentencing.


text:
    RADWAY v RADWAY
    1. Appeal and Error — Child Custody — Standard of Review — Statutes.
    An order of a circuit court in a child custody dispute shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue (MCLA 722.28; MSA 25.312[8]).
    2. Parent and Child — Child Custody — Best Interest of Child— Statutes.
    A court must consider the best interest of the child in making a determination of custody, and only if there is presented clear and convincing evidence that it is in the best interest of the child will a court change a previous custody order (MCLA 722.27[c]; MSA 25.312[7] [c]).
    3. Divorce — Remand—Alimony—Child Support.
    A case in which the trial court refused to reduce a defendant’s alimony and child support payments must be remanded for clarification where the defendant had apparently been unemployed for a period of time and where there is no record of the defendant’s present earnings .or of his efforts to secure employment, either at the time of a trial court’s earlier order or subsequently.
    References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error §§ 826, 831.

       42 Am Jur 2d, Infants §§ 42, 43.

       24 Am Jur 2d, Divorce and Separation § 677.
    Change in financial conditions or needs of husband or wife as ground for modification of decree for alimony or maintenance. 18 ALR2d 10.

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

       24 Am Jur 2d, Divorce and Separation § 571.
    Attorneys’ Fees: necessity and sufficiency of notice and hearing as to allowance of suit money or counsel fees in divorce or other marital action. 10 ALR3d 280.

       24 Am Jur 2d, Divorce and Separation § 7.

      4. Divorce — Separation—Attorney Fees — Judge’s Discretion— Ability to Continue Litigation.
    An award of attorney fees, costs and expenses in an action for divorce or separation rests in the sound discretion of the trial court; however, attorney fees are not awarded as a matter of right but only if necessary to enable a party to carry on or defend the litigation (MCLA 552.13; MSA 25.93).
    5. Divorce — Separate Maintenance — Annulment—Affirmation of Marriage — Attorney Fees — Facts Alleged — Court Rules.
    A party who moves for an award of attorney fees in an action for divorce, separate maintenance, annulment or affirmation of marriage shall allege facts showing that she or he is unable to bear the expense of the action without that aid (GCR 1963, 726.1).
    6. Equity — Attorney Fees — Equitable Principles — Specific Factors.
    A trial court’s reliance on general equitable principles without articulating any specific factors is insufficient to justify an award of attorney fees.
    Appeal from Livingston, Paul R. Mahinske, J.
    Submitted October 5, 1977, at Lansing.
    (Docket No. 31170.)
    Decided February 7, 1978.
    Complaint by Brenda C. Radway against Richard M. Radway for divorce. Divorce granted, with alimony, child support and custody of the minor children awarded to plaintiff. Defendant petitioned to reduce his support payments and to obtain custody. The petition was denied and the plaintiff was awarded attorneys fees, costs and expenses. Defendant appealed. Remanded. On remand the court reaffirmed. Defendant appeals.
    Remanded.

      Stiles, Fowler, Dudley & Tuttle, for plaintiff.

      Farhat, Burns & Story (by Norman C. Farhat), for defendant.

      Before: D. C. Riley, P. J., and J. H. Gillis and R. M. Maher, JJ.
   Per Curiam.

The parties to the dispute were married in 1963. They have two children. In October, 1969, plaintiff wife filed for divorce. In a consent judgment of divorce granted in November, 1972, plaintiff wife received custody of the two children. Additionally, defendant husband was ordered to pay support of $75 per week as well as alimony of $25 per week.

In January, 1975, defendant, who is a certified public accountant, was fired from or voluntarily left his father’s business after a disagreement with his father. Defendant had been earning $30,000 annually but could not find a job after leaving the family business. During this period defendant paid only $50 per week in child support since his unemployment benefits were only $94 per week.

Defendant petitioned, in January, 1975, to reduce his support payments and in August, 1975, he sought to change the custody of the two children. In an April 1, 1976, opinion and in an order dated May 17, 1976, the trial court determined and ordered that custody should remain in the plaintiff. The trial court also found that defendant had an above average ability to earn sufficient income to pay the alimony and child support awarded in the divorce decree.

In a December 2, 1976, opinion the lower court awarded plaintiff $3,141.46 in attorney fees and $1,201.81 in costs and expenses.

Defendant’s delayed appeal was granted on February 10, 1977, but further findings were required. The hearing on remand was held on April 1, 1977. In an opinion containing the requested findings of fact, the trial court reaffirmed its previous decision. Defendant now appeals the December 2, 1976, and the May 17, 1977, orders of the trial court.

The Child Custody Act of 1970, MCLA 722.21 et seq.; MSA 25.312(1) et seq., provides the general guidelines for appellate review of custody decisions:

"[A]ll orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.” MCLA 722.28; MSA 25.312(8).

See, also, Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975).

It appears that both parents can support the children financially. The rest of the testimony dealt largely with the relationships between the parents and their children and the conception each child had of each parent. In making the determination of custody, the court must use the best interest of the child standard. Only if there is presented clear and convincing evidence that it is in the best interest of the child, will a court change a previous custody order. MCLA 722.27(c); MSA 25.312(7)(c). Examining the evidence in this case, we cannot say that the trial court committed an abuse of discretion in giving plaintiff-wife custody of the children.

We acknowledge that through an agreement of the parties, the children now reside with the defendant husband. We commend the parties for reaching such an accord on their own without the intrusion of the state into what should ideally be a private matter. Nevertheless, the trial court’s decision is legally binding. While the parties may agree to a settlement inter se, they cannot usurp the legal function of this Court. In the instant case, however, we find no cause, at the present time, to interfere with the parties’ arrangement.

The other two parts of the trial court’s judgment to which defendant objects present us with greater difficulty. The trial court refused to reduce alimony and child support payments after defendant lost his job when his income declined from $30,000 per year to $6,000 per year.

The court deemed defendant had "a sufficient and better than average ability to earn income in sufficient amounts to defray the alimony awarded in the judgment of divorce [and] to pay the child support awarded in the judgment”. At the time of the original hearing in this case, April 1, 1976, defendant was apparently employed, but had been unemployed in 1975. We have no information concerning the nature of his employment in April, 1976, when the first opinion was written or in May, 1977, after the trial court held the hearing on remand. We are not apprised of defendant’s salary nor of his efforts, if any, to secure different employment both in 1975 and afterwards. Both of these factors are of paramount importance in evaluating defendant’s obligation to pay past due alimony and child support.

While the trial court’s conclusions of law seem correct, we must know the factual bases for those conclusions in order to adequately review the decision from which defendant appeals. Furthermore, any other factors which may have intervened in the period between the trial court’s last decision and the present should be taken into account by the trial court. Such factors may shed light on defendant’s ability or inability to pay the arrearage. For clarification of these areas, we must remand the cause to the trial court.

The matter of attorney fees poses another difficulty. In the trial court, plaintiff was awarded attorney fees, costs and expenses. As generally stated, the award of such fees and expenses rests in the sound discretion of the trial court. Schaffer v Schaffer, 37 Mich App 711; 195 NW2d 326 (1972), Schilleman v Schilleman, 61 Mich App 446; 232 NW2d 737 (1975).

The trial court, however, is not unfettered in its use of discretion. Attorney fees are not awarded as a matter of right but only if necessary to enable a party to carry on or defend the litigation. Gove v Gove, 71 Mich App 431; 248 NW2d 573 (1976), Mixon v Mixon, 51 Mich App 696; 216 NW2d 625 (1974). See, also, MCLA 552.13; MSA 25.93 which provides in pertinent part:

"In every action brought, either for a divorce, or for a separation, the court, in its discretion, may require either party to pay alimony for the suitable maintenance of the adverse party, * * * and to pay any sums necessary to enable the adverse party to carry on or defend the action, during its pendency.”

The applicable court rule also requires that the party who moves for attorney fees shall allege facts showing that she or he is unable to bear the expense of the action without this aid. GCR 1963, 726.1.

In Mixon v Mixon, supra, the Court denied attorney fees to a party who "was in no financial stress”. 51 Mich App at 703. There the Court properly considered as a factor those assets the moving spouse gained in the property settlement between the parties.

In Gove v Gove, supra, the Court found that the party who had been awarded attorney fees did not require them to proceed with her claim. The award was not essential to the party’s ability to carry on or defend the action. 71 Mich App at 435.

In awarding attorney fees, a court should be ever mindful of the guidelines of Mixon and Gove. Reliance on general equitable principles without articulating any specific factors is insufficient. State Farm Mutual Automobile Insurance Co v Allen, 50 Mich App 71; 212 NW2d 821 (1973). On remand the trial court must weigh the awarding of attorney fees against the backdrop of Mixon, Gove, the court rule and the statute. Only if the moving party required the fees to carry on her action, should the court award them to her.

Remanded for proceedings not inconsistent with this opinion. We retain no jurisdiction.

No costs.


text:
    PEOPLE v MARVIN WHITE
    1. Criminal Law — Elements of Crime — Burden of Proof — Prosecutors.
    The burden is on the prosecution in a criminal case to prove every element of the crime charged.
    2. Criminal Law — Defenses—Insanity—Presumptions—Evidence— Burden of Proof.
    A defendant in a criminal action is presumed sane but this presumption can be rebutted by offering evidence to the contrary; when this is done, the prosecution has the burden of persuading the trier of fact beyond a reasonable doubt of the defendant’s sanity.
    3. Criminal Law — Defenses—Insanity—Special Verdicts — Burden of Proof — General Verdicts.
    The not guilty by reason of insanity verdict is not a special verdict which relieves the prosecution of its burden to prove every element of the crime charged beyond a reasonable doubt; as long as the trier of fact is aware that there is an alternative of returning a general verdict of not guilty, there is no constitutional due process problem with returning a special verdict of not guilty by reason of insanity.
    4. Constitutional Law — Equal Protection — Insanity—Statutes— Tests.
    The statute providing for a not guilty by reason of insanity verdict is not violative of the constitutional principle of equal protection under law under the substantive-relation-to-the-object test (MCLA 768.29a; MSA 28.1052[1]).
    Appeal from Recorder’s Court of Detroit, George W. Crockett III, J.
    Submitted December 14, 1977, at Detroit.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 449.

       21 Am Jur 2d, Criminal Law §§ 45, 50, 52, 70.

       21 Am Jur 2d, Criminal Law § 46.

      (Docket No. 77-2548.)
    Decided February 7, 1978.
    Marvin White was found not guilty by reason of insanity of the crime of assault with intent to murder and committed to the Center for Forensic Psychiatry. Defendant appeals.
    Affirmed.

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

      Carl Ziemba, for defendant on appeal.
    Before: N. J. Kaufman, P. J., and Bronson and D. E. Holbrook, JJ.
   Per Curiam.

Defendant was charged with assault with intent to commit murder, MCLA 750.83; MSA 28.278. Sitting without a jury, the trial court found that defendant was insane at the time of the crime charged and entered a verdict of "not guilty by reason of mental illness”, and ordered that defendant be committed to the custody of the Center for Forensic Psychiatry for a period not to exceed 60 days pursuant to the provisions of MCLA 330.2050; MSA 14. 800 (1050). From that finding, defendant appeals by right.

Prior to trial, defendant filed a notice of intention to raise the defense of insanity. His motion for leave to retain the services of a psychiatrist was granted. The psychiatrist testified that defendant was legally insane at the time the crime was committed.

Defendant also filed a motion seeking an order declaring unconstitutional MCLA 768.29a; MSA 28.1052(1), which provides for a verdict of not guilty by reason of insanity. That motion was denied by the trial court. On appeal, defendant renews his challenge to the constitutionality of the statute.

Defendant first contends that the form of the verdict under MCLA 768.29a; MSA 28.1052(1) impliedly casts the burden of proving insanity on him. We cannot agree. In this state, in a criminal case, the burden is on the prosecution to prove every element of the crime charged. People v Eddington, 387 Mich 551; 198 NW2d 297 (1972).

The precise issue, about which defendant complains, was settled early in our jurisprudence. In People v Garbutt, 17 Mich 9, 23 (1868), the Supreme Court concluded:

"[The jury] are at liberty to rest upon the presumption of sanity until proof of the contrary condition is given by the defense. But when any evidence is given which tends to overthrow that presumption, the jury are to examine, weigh and pass upon it with the understanding that although the initiative in presenting the evidence is taken by the defense, the burden of proof upon this part of the case, as well as upon the other, is upon the prosecution to establish the conditions of guilt.” (Emphasis added.)

Accord: People v Eggleston, 186 Mich 510; 152 NW 944 (1915), People v Krugman, 377 Mich 559; 141 NW2d 33 (1966). This Court has also affirmed the validity of the rule. In People v Fisk, 62 Mich App 638, 641; 233 NW2d 684 (1975), this Court held:

"A defendant is presumptively sane, but this presumption can be rebutted by offering evidence to the contrary; when this is done, the prosecution has the burden of persuading the trier of fact beyond a reasonable doubt of the defendant’s sanity.”

Thus, as the statute has been construed so as to avoid any impermissible shifting of the burden of proof, it cannot be said to violate due process on that ground.

Defendant next claims that the form of the verdict under the assailed statute is a special verdict, relieving the prosecution of its burden to prove every element of the crime charged beyond a reasonable doubt. Once again, we must disagree. This argument was also raised and rejected very early in this state’s judicial history. In Underwood v People, 32 Mich 1, 2-3 (1875), the Supreme Court held:

"The finding of the jury is confined to the prisoner’s condition at the time of the commission of the alleged criminal act. The indictment or information embraces, and can lawfully embrace, no issue except the prisoner’s guilt as charged. The right of trial by jury is secured by constitutional provisions, and it would not be competent to make any substantial changes in its character. As suggested in People v. Marion, 29 Mich.R., 31, one of its substantial elements is the right of the jury to give a general verdict on the merits. Any collateral inquiry would be foreign to the issue. And as no insane person is subject to be put on trial, a finding that they had been trying such a person would be somewhat inconsistent with the notion that the trial could have been proper. The statute has avoided this error by confining their attention to the time of the offense; and while it is not competent to prevent an acquittal on a reasonable doubt of insanity, which would require a general verdict of not guilty, yet if the jury agree that the prisoner was insane, and that he would have been guilty if not so, they are undoubtedly at liberty, though they cannot be compelled, to find that fact specially. We cannot hold a special verdict or finding unauthorized, as the common law furnishes abundant precedents to the contrary. — 1 Hale P.C., 38.”

Thus, as long as the trier of fact can return a general verdict of "not guilty”, there is no constitutional due process problem with returning a special verdict of "not guilty by reason of insanity”. See: People v Woody, 380 Mich 332; 157 NW2d 201 (1968). Since, in this case, the trial court’s findings of fact indicate that it was aware that it was not required to return a special verdict of not guilty by reason of insanity, but could have found defendant not guilty had the facts so warranted, we find no due process violation.

Finally, defendant argues that the "not guilty by reason of insanity” verdict deprives a defendant, who raises the defense of insanity, of equal protection of the law, since the verdict form does not pertain to any other type of defense which an accused may raise. We again disagree.

Employing the substantive-relation-to-the-object test enunciated in Manistee Bank & Trust Company v McGowan, 394 Mich 655; 232 NW2d 636 (1975), we believe that MCLA 768.29a; MSA 28.1052(1) is not violative of the principle of equal protection under law. The statute is merely a recognition of two basic principles. First, an insane person ought not be convicted of a crime when the person lacked the competency to form the intent to commit it. Second, where that person nevertheless poses a danger to others, protection should be afforded. By allowing a "not guilty by reason of insanity” verdict, the statute effectuates both principles.

The statute has thus survived all constitutional challenges posed by this appeal, and we affirm.

       Note should also be taken of the myriad cases from this Court which reverse or remand because the jury was precluded from bringing in a not guilty verdict. See e.g. People v Stockwell, 52 Mich App 394; 217 NW2d 413 (1974), People v Way 22 Mich App 473; 177 NW2d 729 (1970), People v Deneweth, 14 Mich App 604; 165 NW2d 910 (1968), lv den 381 Mich 810 (1969).


text:
    PEOPLE v KAIGLER
    1. Criminal Law — Motion for New Trial — Failure to Produce Witness — Evidentiary Hearing.
    A defendant who desires reversal of his conviction or a new trial because of failure to produce a witness must, before filing his brief on appeal, move in the trial court for a new trial and should request an evidentiary hearing at which the prosecutor shall produce the witness or explain why he cannot produce the witness; the witness shall be examined regarding his knowledge of the crime and if a new trial is denied, the judge shall state the reasons.
    2. Witnesses — Criminal Law — Res Gestae Witnesses — Production of Witnesses — Statutes.
    A prosecutor has a duty to indorse and produce all res gestae witnesses; all witnesses whose names are indorsed on the information must be produced at trial unless production is excused by the trial court or is waived by the defense (MCLA 767.40; MSA 28.980).
    3. Witnesses — Criminal Law — Production of Witnesses — Judge’s Discretion — Cumulative Testimony.
    A trial judge’s decision to excuse production of a res gestae witness will not be reversed unless that decision represents an abuse of the judge’s discretion; a trial judge did not abuse his discretion by excusing the producing of a former police officer who had taken the original report from the complaining witness where the former officer’s testimony would have merely duplicated that of his partner, who did testify regarding the taking of the report, and by excusing another officer who was one of two officers who verified that a vehicle found at the scene of the crime was stolen, where that officer’s partner also testified.

      References for Points in Headnotes

       75 Am Jur 2d, Trial § 65.

       41 Am Jur 2d, Indictments and Informations § 60.
    81 Am Jur 2d, Witnesses § 2.

       75 Am Jur 2d, Trial § 65.

       41 Am Jur 2d, Indictments and Informations, §§ 55, 56, 60, 153-157.

       81 Am Jur 2d, Witnesses § 74.

       81 Am Jur 2d, Witnesses §§ 75, 76.

       75 Am Jur 2d, Trial § 131.
    76 Am Jur 2d, Trial § 1075.

      4. Witnesses — Criminal Law — Accomplices—Res Gestae Witnesses —Indorsement of Witnesses.
    A prosecutor has no duty to indorse and produce a defendant’s accomplice, even though the accomplice might otherwise be considered a res gestae witness.
    5. Witnesses — Criminal Law — Res Gestae Witnesses — Police Officers — Judge’s Discretion — Cumulative Testimony.
    A police officer who, after a defendant was arrested, arrived at the scene in order to drive away a stolen vehicle, was not a res gestae witness, and a trial court did not abuse its discretion by refusing to require the indorsement and production of the officer where the officer was not indorsed and where the officer’s partner did testify and any further testimony would have been cumulative.
    6. Witnesses — Criminal Law — Res Gestae Witnesses.
    A trial court properly ruled that an individual was not a res gestae witness where that individual resided in a house adjacent to a defendant, the police knocked at his door and talked with him after they had arrested the defendant, and where he stated that he did not know the defendant or the defendant’s companion, that he did not own either of the two automobiles that the defendant was working on and that he had not witnessed any of the preceding events.
    7. Criminal Law — New Trial — Judge’s Discretion — Abuse of Discretion.
    Rulings on a motion for a new trial are within the discretion of the trial court, and a denial of a new trial was not an abuse of discretion where the defendant claimed that he was entitled to a new trial because a juror had spoken to a spectator regarding the status of the jury’s deliberations and the defendant’s allegation was without supporting affidavits.
    Appeal from Recorder’s Court of Detroit, Joseph E. Maher, J.
    Submitted January 9, 1978, at Detroit.
    (Docket No. 30215.)
    Decided February 8, 1978.

      Dennis M. Kaigler was convicted of receiving and concealing stolen property in excess of $100. Defendant appeals.
    Affirmed.

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

      Barry E. Solomon, for defendant on appeal.
    Before: Allen, P. J., and D. E. Holbrook, Jr. and M. J. Kelly, JJ.
   Per Curiam.

A Detroit Recorder’s Court jury convicted the defendant of receiving and concealing stolen property in excess of $100. MCLA 750.535; MSA 28.803. The verdict was returned on July 2, 1976. Defendant was later sentenced to 40 months to 5 years in prison. His motion for a new trial was denied, and he appeals as of right.

The defendant’s principal arguments on appeal concern the prosecution’s failure to produce five witnesses. Two of the witnesses were endorsed on the information but were later stricken on the prosecutor’s motion and argument that their testimony would be merely cumulative. The other three witnesses were neither endorsed nor produced. The defendant contends that they were res gestae witnesses and thus should have been endorsed and produced by the prosecution, pursuant to MCLA 767.40; MSA 28.980.

Although defendant did move for a new trial, based partly on the prosecution’s failure to produce some of these five witnesses, he failed to request an evidentiary hearing which would have provided a complete record for review on appeal. This procedure is required by People v Robinson, 390 Mich 629, 634; 213 NW2d 106 (1973).

"In appeals filed after this opinion is published, a defendant desiring reversal or a new trial because of a failure to produce an unindorsed or an indorsed witness shall, before filing his brief on appeal, move the trial court for a new trial. The prosecutor shall produce or explain why he cannot produce the witness or, as the case may be, why he did not indorse and produce him at the trial. If the witness is produced at the hearing, he shall be examined regarding his knowledge of the crime. If a new trial be denied, the judge shall state his reasons.”

As noted, no post-trial hearing was held. However, the defendant did move for a new trial. And we believe that the trial record itself provides a sufficient basis for reviewing the claims of error. We shall examine the arguments concerning each of the five witnesses separately, beginning with the two whose names were endorsed on the information.

Mark Schoof was one of two police officers who took the original theft report from the complaining witness. He did not witness the theft. Nor did he witness any of the events which led to the receiving and concealing stolen property charge. At the time of trial, Schoof had resigned from the Detroit police force and was living in Nevada. His partner, William Reid, did testify at trial about taking the original theft report. The prosecutor asked the trial judge to excuse production of Schoof on the grounds that his testimony would be merely cumulative in light of Reid’s testimony. The trial judge granted the motion.

The prosecutor has a duty to endorse and produce all res gestae witnesses. MCLA 767.40; MSA 28.980; People v Harrison, 44 Mich App 578; 205 NW2d 900 (1973). All witnesses whose names are endorsed on the information must be produced at trial by the prosecutor unless production is excused by the trial judge or waived by the defense. People v Connor, 295 Mich 1; 294 NW 74 (1940).

Production may properly be excused if the endorsed witness’s testimony would be merely cumulative. People v Mays, 64 Mich App 453; 236 NW2d 513 (1975). A trial judge’s decision to excuse production of a witness will not be reversed unless that decision represents an abuse of the judge’s discretion in such matters. People v Bersine, 48 Mich App 295; 210 NW2d 501 (1973).

We find no abuse of discretion in the judge’s decision to excuse production of witness Schoof. From all indications, his testimony would merely have duplicated Reid’s testimony. Further, the testimony itself was inconsequential in this case. There was no error.

The second witness who was endorsed but not produced was a Sergeant Ruhlig. He was one of two officers who proceeded to the scene after the defendant’s arrest and verified that the car found at the scene was a stolen vehicle. This was done by examining the hidden vehicle identification number on the car. Ruhlig’s partner, Officer Clayton, did testify at trial. The judge granted the prosecutor’s motion to excuse Ruhlig’s production on the grounds that his testimony would be cumulative. We agree and find no abuse of discretion. People v Bersine, supra.

The remaining three witnesses were not endorsed on the information. Defendant contends that they were res gestae witnesses and should have been endorsed and produced.

The first of these individuals was one Rahman Shah. Shah was arrested with the defendant at the scene and later pled guilty to a similar charge. The prosecutor has no duty to endorse and produce a defendant’s accomplice, even though the accomplice might otherwise be considered a res gestae witness. People v Phillips, 61 Mich App 138; 232 NW2d 333 (1975). The trial judge did not abuse his discretion by refusing to require Shah’s production at trial. People v Bersine, supra.

The defense also sought endorsement and production of Officer Lattimer who, along with his partner Officer Atkinson, arrived at the scene following the defendant’s arrest in order to drive away the stolen vehicle. In our opinidn, Officer Lattimer was not a res gestae witness. In any event, Officer Atkinson testified at trial and it is apparent that Lattimer’s testimony would have been cumulative. The trial judge did not abuse his discretion by refusing to require the production of Officer Lattimer. People v Bersine, supra.

Finally, defendant contends that the prosecution should have endorsed and produced at trial one Ronald Geyder. Following the defendant’s arrest, the arresting officers knocked at the door of an adjacent house. An individual who identified himself as Ronald Geyder appeared at the door. He looked as though he had just been awakened and, in response to the officers’ questions, stated that he did not know the defendant or Shah and that he did not own any of the cars on which the defendant and Shah had been working.

At trial and on appeal, defendant argued that Geyder was a res gestae witness who should have been produced at the trial by the prosecution. The trial judge ruled that he was not a res gestae witness. We recognize that the definition of a res gestae witness is unsettled. See, e.g., People v Harrison, supra. However, based upon the testimony presented to the trial judge, we can find no abuse of discretion in his ruling that Geyder was not a res gestae witness, There are hints in the record that Ronald Geyder may not have been the individual’s correct name. Further, it does seem strange that the defendant and Shah would have chosen Geyder’s driveway in which to work on two or more stolen cars unless they knew the occupant of the adjacent house. However, Geyder’s statement was that he did not own any of the cars, did not know the defendant or Shah, and had not witnessed any of the preceding events. Based on that testimony, the trial judge was justified in ruling that Geyder was not a res gestae witness.

In his motion for a new trial, the defendant alleged that one of the jurors had engaged in an improper conversation with a spectator during a trial recess. This allegation was purportedly supported by an affidavit attached to the new trial motion. However, our examination of the lower court file discloses no such affidavit. The prosecutor states that he has also been unable to find the affidavit. The mystery continues on appeal because defendant’s appellate brief states that a copy of the affidavit is attached to the brief. However, examination of the briefs forwarded to this panel again discloses no such affidavit. Those failures alone are sufficient to reject the defendant’s argument on appeal. But, assuming arguendo that a proper affidavit was presented to the trial judge, we nonetheless find no reversible error. Rulings on a motion for a new trial are entrusted to the discretion of the trial court. People v Louis Williams, 77 Mich App 119; 258 NW2d 68 (1977). As alleged in the motion for a new trial, a juror reportedly stated that the jury was "hung up”, that the juror was about to leave on a holiday, and that the jury would conclude its deliberations that afternoon. Without more (in fact there was less since it appears that no affidavit was submitted) the trial judge did not abuse his discretion by denying the motion for a new trial. Similarly, we find no error on appeal.

The conviction and sentence are affirmed.

       There is considerable uncertainty as to the correct spelling of this individual’s name. With no indication as to which spelling is correct, we have arbitrarily chosen one of the several alternatives.


author: M. F. Cavanagh, P. J. M. J. Kelly, J.

text:
    PEOPLE v ROBERT G. THOMPSON
    Opinion of the Court
    1. Homicide — First-Degree Murder — Felony Murder — Malice—Inference of Malice — Underlying Felony- — Jury Question— Instruction to Jury — Appeal and Error.
    The presence or absence of malice in each first-degree murder case remains a question for jury determination, although malice may be inferred from the nature of an underlying felony in a felony-murder case and the circumstances surrounding the commission of the felony; therefore, a defendant’s conviction of first-degree murder under a felony-murder theory should be reversed, and the matter remanded, where a trial judge, in his instructions to the jury, removed the essential element of malice from the jury’s consideration.
    2. Homicide — First-Degree Murder — Felony Murder — Underlying Felony — Prosecutor’s Option.
    A prosecutor may choose on remand after a defendant’s conviction for felony murder has been reversed, where the defendant was convicted of both first-degree murder, under a felony-murder theory, and armed robbery, the underlying felony, either to have the defendant’s armed robbery conviction and sentence stand or to have it vacated and retry the defendant on armed robbery and first-degree murder charges.
    Dissent by M. J. Kelly, J.
    3. Homicide — Felony Murder — Underlying Felony — Armed Robbery — Criminal Law — Constitutional Law — Double Jeopardy.

      Punishing a defendant for the greater offense of ñrst-degree

      felony murder and for the included offense of the underlying felony constitutes a violation of the double jeopardy clauses of the United States Constitution and the Michigan Constitution; therefore, a defendant’s conviction for armed robbery should he reversed where the armed robbery was the felony upon which the jury based the defendant’s conviction for felony murder (US Const, Am V, Am XIV, Const 1963, art 1, § 15).

      References for Points in Headnotes

       40 Am Jur 2d, Homicide §§ 247, 498-500.

       40 Am Jur 2d, Homicide § 190.

       40 Am Jur 2d, Homicide § 194.

       40 Am Jur 2d, Homicide § 500.

       40 Am Jur 2d, Homicide § 525.

       75 Am Jur 2d, Trial §§ 91, 92.

      4. Homicide — Felony Murder — Instructions to Jury — Malice— Underlying Felony — Preserving Issue — Manifest Injustice.

      Failure of a defendant at his trial on a felony-murder charge to object to a trial judge’s failure to instruct the jury on the elements of malice, and, in effect, letting the jury imply malice from the underlying felony to the killing precludes the Court of Appeals from reviewing the issue because there is no manifest injustice; whether the instruction uses the word murder or killing in connection with an underlying felony, an omission to instruct on malice should not be reversible error unless properly preserved for review by objection or by the trial court’s refusal to give a properly requested instruction.

    5. Homicide — Felony Murder — Common-Law Felony Murder — Instructions to Jury — Malice—Underlying Felony — Statutes.

      The common-law felony-murder rule does not require the giving of an instruction to the jury on malice because malice is imputed from a killing which takes place during the perpetration of or attempt to perpetrate one of the enumerated felonies (MCLA 750.316; MSA 28.548).

    6. Criminal Law — Instructions to Jury — Allen Charge.
    A charge to the jury which instructs them that they must examine the question submitted to them with candor and with a proper regard and deference to the opinions of each other, and that the verdict must be that of each juror, the result of his own convictions and not a mere acquiescence in the conclusion of his fellows, and then urges them to reach a verdict if they can conscientiously do so, the so-called Allen charge, is not per se coercive; any claim of coercion must be determined on a case-by-case basis.
    Appeal from Saginaw, Eugene Snow Huff, J.
    Submitted October 4, 1977, at Grand Rapids.
    (Docket No. 26215.)
    Decided February 22, 1978.
    Limited leave to appeal granted, 402 Mich 938.

      Robert G. Thompson was convicted of armed robbery and first-degree murder. Defendant appeals.
    Reversed and remanded.

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

      Daniel J. Wright, Assistant State Appellate Defender, for defendant on appeal.
    Before: M. F. Cavanagh, P. J., and Bronson and M. J. Kelly, JJ.
   M. F. Cavanagh, P. J.

For the reasons stated in People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976), in People v Wright, 80 Mich App 172; 262 NW2d 917 (1977), and in Judge Riley’s dissent in People v Till, 80 Mich App 16; 263 NW2d 586 (1977), we disagree with our brother’s conclusion that reversible error did not result from the trial court’s failure to instruct the jury on the element of malice in the felony-murder charge. We join, however, in his disposition of the other issues raised.

For this reason, we would reverse the first-degree murder conviction and remand to the trial court. Upon remand, as we find no error relating to the armed robbery conviction, we would allow the prosecutor to choose either to have the armed robbery conviction and sentence stand or to have it vacated and to retry the defendant on armed robbery and first-degree murder.

Bronson, J., concurred.

M. J. Kelly, J.

(dissenting). On August 18, 1975, defendant was convicted by a Saginaw County Circuit Court jury of armed robbery, MCLA 750.529; MSA 28.797, and first-degree murder, MCLA 750.316; MSA 28.548. He was sentenced to two concurrent terms of life imprisonment on September 17, 1975. He appeals as of right. Three issues merit discussion.

First of all, the parties agree that the conviction and sentence for armed robbery, the lesser charge, should be vacated. I would so order. This Court held in People v Anderson, 62 Mich App 475, 482; 233 NW2d 620 (1975):

"To punish defendant both for the greater offense, that is, first-degree (felony) murder, and for the included offense, which would be in this case armed robbery, would constitute double punishment in violation of the double jeopardy clauses of the United States Constitution and the Michigan Constitution.”

Since the murder took place during the perpetration of the armed robbery, the armed robbery conviction must be reversed. See also People v Stewart (On Rehearing), 400 Mich 540, 549-550; 256 NW2d 31 (1977), People v Martin, 398 Mich 303, 309-310; 247 NW2d 303 (1976), People v Longuemire, 77 Mich App 17, 24; 257 NW2d 273 (1977), People v Goodchild, 68 Mich App 226, 236-237; 242 NW2d 465 (1976), lv den, 397 Mich 830 (1976).

Defendant next argues that the trial court committed reversible error by failing to instruct the jury on the element of malice, and, in effect, letting the jury imply malice from the underlying armed robbery to the killing. Defendant did not object. I would hold that the failure to object precludes this Court from reviewing the issue because there is no manifest injustice. People v Dorrikas, 354 Mich 303, 316; 92 NW2d 305 (1958). I say that with full knowledge that there is abundant authority to the contrary. In People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976), the Court implied that the issue need not be preserved for review by timely objection because it withdrew an essential element from jury consideration, namely, malice. There is now a split of authority in this Court as to the existence and the perimeters of the common law felony-murder doctrine in Michigan. Whatever the rule is determined to be by the Supreme Court in future precedent, I have little hesitation in saying what the rule ought to be. The rule ought to be that whether the instruction uses the word murder or killing in connection with the underlying felony, an omission to instruct on malice will not be reversible error unless properly preserved for review by objection or by the trial court’s refusal to give a properly requested instruction.

The right to a trial by jury allows a defendant a common sense buffer between the complicated legalistic language of the law and the conscience of the community. Much of the debate between varying legalistic points of view is lost on a jury of laymen. Where legislatures and courts disagree, why do we posit reversible error on a surmise that a jury has been misled? It is possible for the layman to use murder and killing interchangeably even if incorrectly. It is conceivable that a Legislature could do likewise.

Our Court has recently issued conflicting opinions on this issue. People v Till, 80 Mich App 16; 263 NW2d 586 (1977), People v Wright, 80 Mich App 172; 262 NW2d 917 (1977). I would follow the Till Court in finding the existence of common law felony-murder in this state. The Till majority found that such a common law felony-murder rule does not require the giving of an instruction on malice to the jury because malice is supplied (imputed) from a killing which takes place during the perpetration of or attempt to perpetrate one of the enumerated dangerous felonies. See People v Allensworth, 401 Mich 67, 75; 257 NW2d 81 (1977) (Coleman, J., dissenting). But see People v Wright, supra, People v Fountain, supra, People v Terry Burton, 74 Mich App 215, 226; 253 NW2d 710 (1977). The Fountain Court defined malice in accordance with the Michigan Proposed Criminal Jury Instructions, Ifi^Ol. But malice is a state of mind and does not a jury which convicts for killing which takes place in the course of arson, robbery, rape, burglary, or kidnapping find a "life endangering state of mind” on the part of the felon inherently inseparable from the killing? The very least we can say is that the law is not clear as the split between panels on our Court indicates. That being the case, trial judges, prosecuting attorneys and defense attorneys should not be held to a degree of sagacity superior to ours, and reversible error should not be predicated on failure to give an unrequested instruction.

The third issue raised by defendant alleges that the trial court’s Allen charge constitutes reversible error. Defendant did not object to the charges given.

The trial judge’s Allen charge does not necessarily mandate reversal, and must be reviewed on a case by case basis. People v Sullivan, 392 Mich 324, 332; 220 NW2d 441 (1974).

The record indicates that the trial court appeared willing to dismiss the jury, but defense counsel apparently wanted to have the jury continue deliberations. Furthermore, the jury deliberated for four hours after the Allen instruction before it returned a verdict of guilty. There was no objection and there does not appear to be a clear abuse of discretion by the trial court resulting in manifest injustice. I, therefore, find no reversible error in the charge. GCR 1963, 516.2. See People v Newby, 66 Mich App 400, 404; 239 NW2d 387 (1976), lv den, 397 Mich 867 (1976), People v Tooks, 55 Mich App 537, 540; 223 NW2d 63 (1974).

Defendant’s other issues are without merit and do not require discussion.

I would affirm.

       "Malice means the defendant intended to kill or that he knowingly created a very high risk of death with knowledge that it probably would result in death, and that he did so under circumstances which did not justify, excuse, or lessen the crime.”

         See Perkins on Criminal Law (2d ed), p 46 (1969), for such a definition of malice. See also People v Morrin, 31 Mich App 301, 322, n 28; 187 NW2d 434 (1971), lv den, 385 Mich 775 (1971).

        Allen v United States, 164 US 492; 17 S Ct 154; 41 L Ed 528 (1896).