author: D.C. Riley, P.J. Cynar, J.

text:
    WAYNE COUNTY PROSECUTOR v RECORDER’S COURT JUDGE
    Docket No. 77-3189.
    Submitted March 21, 1978, at Detroit.
    Decided September 20, 1978.
    Annette Gail Alexander was convicted in Recorder’s Court of Detroit, Robert L. Evans, J., of second-degree murder and possession of a firearm during the commission of a felony. The trial court ruled that the felony-firearm conviction merged with the felony and sentenced Miss Alexander to 2-1/2 to 10 years in prison on the murder conviction. The Wayne County Prosecutor filed an original action in the Court of Appeals for superintending control to compel the judge of the Recorder’s Court of Detroit to sentence Miss Alexander under the felony-firearm statute. Held:

    1. Both the Michigan and Federal constitutions have been consistently held to prohibit not only multiple prosecutions for the same offense but also multiple punishments.
    2. Where a charged offense contains all of the elements of an alleged included offense, plus one or more additional elements, the lesser offense is a necessarily included offense within the greater since it is legally impossible to commit the greater without also having committed the lesser; where an included offense is necessarily included, it becomes legally the "same offense” as the greater for the purposes of double jeopardy.
    3. A cognate lesser offense is an offense which shares several elements of the higher offense and is of the same class or category but may contain some elements not found in the higher offense; whether or not an instruction or conviction of a greater and a cognate offense is constitutionally proper depends on the facts of the case.
    4. The underlying felony is always a necessarily lesser in-eluded offense of felony-firearm, regardless of whether or not the firearm was used in the commission of the underlying felony.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 166.
    [2, 4, 7] 21 Am Jur 2d, Criminal Law §§ 185, 189.
    Conviction of lesser offense as bar to prosecution for greater on new trial. 61 ALR2d 1141.
    [3] 21 Am Jur 2d, Criminal Law § 189.
    [5] 21 Am Jur 2d, Criminal Law § 182.
    [6, 7] 21 Am Jur 2d, Criminal Law § 185.

      5. The Federal same offense test for double jeopardy is to determine whether conviction for each offense requires proof of an additional fact which the other does not and, if it does not, precludes multiple convictions; the Federal same offense test would bar a conviction for both felony-firearm and the underlying felony.
    6. Legislative intent to permit double punishment for a greater and necessarily lesser included offense cannot override the constitutional prohibition against double jeopardy.
    Conviction of murder affirmed; felony-firearm conviction vacated.
    Cynar, J., dissented. He would hold that the Legislature’s clear intent to provide for two convictions and a mandatory two-year minimum sentence for persons who commit or attempt to commit a felony, not expressly excluded in the felony-firearm statute, while in possession of a firearm abrogates any constitutional multiple punishment problem.
    1. Criminal Law — Constitutional Law — Double Jeopardy Clause —Multiple Prosecutions — Multiple Punishments.
    Both the Michigan and Federal constitutions have been consistently held to prohibit not only multiple prosecutions for the same offense but also multiple punishments (US Const, Am V, Const 1963, art I, § 15).
    2. Criminal Law — Constitutional Law — Double Jeopardy — Necessarily Included Offense.
    Where a charged offense contains all of the elements of an alleged included offense, plus one or more additional elements, the lesser offense is a necessarily included offense within the greater since it is legally impossible to commit the greater without also having committed the lesser; where an included offense is necessarily included, it becomes legally the "same offense” as the greater for the purposes of double jeopardy.
    3. Criminal Law — Constitutional Law — Double Jeopardy — Cognate Offense.
    A cognate lesser offense is an offense which shares several elements of the higher offense and is of the same class or category but may contain some elements not found in the higher offense; whether or not an instruction or conviction of a greater and a cognate offense is constitutionally proper depends on the facts of the case (Const 1963, art I, § 15).

      4. Criminal Law — Statutes—Felony-Firearm—Murder—Necessarily Included Offense.
    Murder is a necessarily included offense of felony-firearm where the murder is the underlying felony of the felony-firearm offense, and, in fact, the underlying felony is always a necessarily lesser included offense of felony-firearm, regardless of whether or not the firearm was used in the commission of the underlying felony (MCL 750.227b; MSA 28.424[2]).
    5. Criminal Law — Constitutional Law — Statutes—Double Jeopardy — Same Offense Test — Felony-Firearm.
    The Federal same offense test for double jeopardy is to determine whether conviction for each offense requires proof of an additional fact which the other does not and, if it does not, precludes multiple convictions; the Federal same offense test would bar a conviction for both felony-firearm and the underlying felony (US Const, Am V, MCL 750.227b; MSA 27.424[2]).
    6. Criminal Law — Constitutional Law — Double Jeopardy — Multiple Punishment — Legislative Intent.
    Legislative intent to permit double punishment for a greater and necessarily lesser included offense cannot override the constitutional prohibition against double jeopardy (US Const, Am V, Const 1963, art I, § 15).
    Dissent by Cynar, J.
    7. Criminal Law — Felonies—Felony-Firearm—Legislative Intent —Two Convictions — Multiple Punishment — Statutes.

      The Legislature has clearly provided for two convictions and a minimum two-year sentence where a person commits or attempts to commit a felony, not expressly excluded in the felony-ñrearm statute, while in possession of a ñrearm; since the legislative intent is clear, there can be no multiple punishment problem, or possibility of the court cumulating punishment where a defendant is convicted of murder and possession of a ñrearm during the commission of the murder. (MCL 750.227b; MSA 28.424[2]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy A. Baugh

      man, Assistant Prosecuting Attorney, for the people.

      Kenneth M. Mogill, for Annette Gail Alexander.
    . Before: D. C. Riley, P. J., and T. M. Burns and Cynar, JJ.
   D.C. Riley, P.J.

The present matter concerns plaintiffs complaint for superintending control, seeking an order requiring a Detroit Recorder’s Court Judge to impose the mandatory sentence under Michigan’s felony-firearm statute. MCL 750.227b; MSA 28.424(2). The facts of the underlying case will be detailed briefly.

On July 17, 1977, Annette Gail Alexander was convicted at a jury trial of second-degree murder, MCL 750.317; MSA 28.549, and of possession of a firearm during the commission of a felony, contrary to the felony-firearm statute. The evidence adduced at trial showed that Ms. Alexander had shot one Losloran Whitlow to death with a shotgun. The shotgun in question, which was introduced into evidence at the trial, was both the alleged murder weapon and the firearm referred to in the felony-firearm charge. There was no evidence introduced that Ms. Alexander used or possessed any weapon other than the shotgun during the commission of the murder.

The trial judge thereafter sentenced Ms. Alexander to a prison term of 2-1/2 to 10 years on the murder conviction, but ruled that the sentence on the felony-firearm violation merged with that of the murder conviction. While the judge allowed the second conviction to stand, he held that he could not constitutionally impose the statutorily-mandated consecutive sentence provision of the felony-firearm law.

The prosecution filed the complaint for superintending control in order to enforce the mandatory sentencing provision. This Court granted plaintiff’s motion that defendant show cause why such an order should not issue.

As an introduction to our discussion of the significant questions of law in the present case, we must indicate our agreement with the prosecution that the trial judge was not empowered to in effect amend the sentencing provisions of the statute. The language is clear and unambiguous; the sentence is mandatory in length and in application as consecutive to a sentence imposed for the concurrent felony. While we recognize the court’s obligation to protect the constitutional rights of all parties to an action, we cannot sanction the method used in the proceedings below.

We must therefore examine the constitutional issue raised on a much broader basis. In its simplest form, the question presented is whether the convictions for both second-degree murder and felony-firearm violated defendant Alexander’s constitutional right not to be twice placed in jeopardy. Before entering into a specific discussion of the various double jeopardy considerations applicable to this issue, including Michigan law on included offenses and the effect of legislative intent on individual rights, we must first set forth some general provisions of double jeopardy law.

The language of the Michigan and Federal constitutional sections is essentially the same. It has been consistently held that the protection afforded by both clauses applies not only to bar multiple prosecutions for the "same offense” but also to forbid multiple punishment. North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969), People v Martin, 398 Mich 303; 247 NW2d 303 (1976). Thus it can be said that the two clauses are "substantially identical”, at least in scope. People v White, 390 Mich 245, 252, fn 4; 212 NW2d 222 (1973).

However, in application the Michigan Supreme Court has not hesitated to adopt stricter standards for double jeopardy than those used in the Federal system. In White, supra, the Court incorporated into Michigan law the "single transaction” test as delineated in Justice Brennan’s concurring opinion in Ashe v Swenson, 397 US 436; 90 S Ct 1189; 25 L Ed 2d 469 (1970). This test has not as yet been accepted by a majority of the United States Supreme Court. See Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977) (Brennan, J., concurring). In People v Cooper, 398 Mich 450; 247 NW2d 866 (1976), the Court held that under the Michigan constitution subsequent state and Federal prosecutions for the same act violate double jeopardy, even though Federal law would not bar the dual trials. See Bartkus v Illinois, 359 US 121; 79 S Ct 676; 3 L Ed 2d 684 (1959), Abbate v United States, 359 US 187; 79 S Ct 666; 3 L Ed 2d 729 (1959).

Having laid the groundwork for our decision, we now turn to the specific arguments presented in this case. Our primary area of analysis concerns the concept of included offenses.

In People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), the Supreme Court discussed at length the definitions of included offenses. The Jones Court stated:

"The common-law definition of lesser included offenses is that the lesser must be such that it is impossible to commit the greater without first having committed the lesser. 4 Wharton, Criminal Law and Procedure, § 1799. This definition includes only necessarily included lesser offenses. This definition, however, is generally conceded to be unduly restrictive, and thus most jurisdictions, including Michigan, have statutes that are broadly construed to permit conviction of 'cognate’ or allied offenses of the same nature, under a sufficient charge. These lesser offenses are related and hence 'cognate’ in the sense that they share several elements, and are of the same class or category, but may contain some elements not found in the higher offense.” (Footnote omitted, emphasis in original.) 395 Mich at 387.

The primary distinction between the two types of included offenses, as outlined in Jones, supra, and its companion cases, is whether the alleged included offense, in a given case, is analyzed from a factual or legal approach. For example, if the charged offense contains all of the elements of the alleged included offense, plus one or more additional elements, the lesser offense is necessarily included within the greater on a legal basis. Since it is legally impossible to commit the greater without also having committed the lesser, the facts of the particular case are not necessary to the decision. On the other hand, if the included offense is cognate, having some of the elements of the greater but also an additional element not found in the greater, the factual setting of the case is determinative of whether an instruction and/or conviction on that offense is proper. See People v Ora Jones, supra, at 390.

Our task now is to determine whether either of the charges in the present case is an included offense of the other, and, if so, what type of included offense. Applying the tests set forth above, we conclude that the murder charge was a necessarily included offense of the felony-firearm charge.

From a legal standpoint, there are no elements in the murder charge that are not also included within the felony-firearm charge. It is legally impossible to support a conviction on felony-firearm without first having proven the commission of the underlying felony. Once the felony is shown, the additional element of possession of a firearm during commission of the felony is all that remains for conviction.

An analogy to the felony-murder underlying felony situation is inescapable. In People v Anderson, 62 Mich App 475; 233 NW2d 620 (1975), this Court stated:

"For if the jury’s first-degree murder conviction was based on a finding that the killing took place during the perpetration of the armed robbery, then the armed robbery constitutes a necessary element of first-degree (felony) murder. As a necessary element of first-degree murder, armed robbery would then become an included offense in the greater charge. People v Simpson, 5 Mich App 479; 146 NW2d 828 (1966).” 62 Mich App at 482.

See also People v Wilder, 82 Mich App 358; 266 NW2d 847 (1978).

What is critically important about this legal-factual distinction of included offenses is its effect on the threshold double jeopardy phrase "same offense”. Where an included offense is necessarily included, it becomes legally the "same” offense as the greater for double jeopardy purposes.

"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.” (Footnote omitted.) People v Anderson, supra, at 482.

What this means is that a factual analysis of whether the same physical acts of the defendant violated both statutes is irrelevant to the ultimate disposition. Certainly different physical acts are needed to commit a murder and, as in Anderson, supra, an armed robbery. Generally the essential elements of these two offenses do not overlap. It is only when the statutorily-defined crime of felony-murder is involved that the elements of the murder charge expand to include those of the underlying felony.

Likewise, in the felony-firearm situation, it matters not whether the defendant used the firearm to commit the underlying felony, as in the case at bar, or merely possessed a weapon during the commission of a felony. In either situation, regardless of what physical acts can be attributed to the defendant, the underlying felony is a necessarily included offense of the felony-firearm charge. People v Ora Jones, supra, People v Anderson, supra.

In People v Martin, supra, the Michigan Supreme Court held that where a defendant is charged with delivery and possession of heroin, and the evidence at trial shows no possession distinct and apart from the possession at the time of delivery, convictions on both offenses would constitute double punishment:

"When the jury found defendant guilty of unlawful delivery of this heroin on the evidence in this record they necessarily found him in possession of it.
" 'It is elementary that the State cannot divide a single offense into several parts according to time and conduct and base separate prosecutions upon and impose separate punishments for the various necessary divisions of that single crime. * * *
" 'The possession of narcotic drugs is an offense distinct from the sale thereof. But in the instant case the possession and sale clearly constituted one single and same act. The possession, as legally defined, is necessarily a constituent part of the sale, as legally defined. Where the only possession of the narcotic drug is that incident to and necessary for the sale thereof, and it does not appear that there was possession before or after and apart from such sale, the State cannot fragment the accused’s involvement into separate and distinct acts or transactions to obtain multiple convictions, and separate convictions under such circumstances will not stand. * * * The error is not cured by the fact the trial Court permitted the two sentences to run concurrently. * * * The conviction and sentence upon the charge of possession must be set aside.’ State v Allen, 292 A2d 167, 172 (Me, 1972).” 398 Mich at 307-308.

The Supreme Court’s later decision in People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), while based upon different statutes, also held that convictions for delivery and possession of heroin, where the evidence shows no possession distinct from the sale, violate double jeopardy.

Applying Martin, supra, and Stewart, supra, to the instant case does not alter the result. Where felony-firearm and the underlying felony are charged together or in successive prosecutions, it would be factually and legally impossible to view the underlying felony as distinct and apart from the felony-firearm offense. The two charges are by definition concurrent in time.

Under Federal law, the test for when two charged offenses are the "same offense” for double jeopardy purposes was originally set forth in Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932):

"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.”

See also Brown v Ohio, supra, Gore v United States, 357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958), Note, Double Jeopardy: Multiple Prosecutions Arising From The Same Transaction, 15 Am Crim Law Rev 259 (1978).

Analyzing the Blockburger test in the terminology of Michigan law, double jeopardy, for Federal purposes, would bar separate convictions for the greater and a necessarily included offense but not convictions for the greater and a cognate included offense. Where one charge has no elements that are not also part of the greater (a necessarily included offense under Ora Jones, supra), the Blockburger test says they are the same. Where the included offense has some of the elements of the greater, but also an additional element (a cognate offense in Michigan), Blockburger allows separate convictions and sentences.

"This test emphasizes the elements of the two crimes. 'If each requires proof that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes * * * .’ Iannelli v. United States, 420 U.S. 770, 785 n. 17 [43 L Ed 2d 616, 95 S Ct 1284] (1975).” Brown v Ohio, supra, at 166.

As applied to the case at bar, the Blockburger test would also result in the conclusion that double jeopardy bars convictions for both felony-firearm and the underlying felony. As stated previously, there are no elements of the felony that are not also required elements for a conviction of felony-firearm.

Again an analogy to the felony-murder-underlying felony situation is appropriate. Under Federal law, as well as Michigan law, convictions on both charges are constitutionally infirm:

"When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction for the greater one. In re Hans Nielsen, 131 US 176 [33 L Ed 118; 9 S Ct 672] (1889); cf. Brown v. Ohio, 432 U.S. 161 [53 L Ed 2d 187; 97 S Ct 2221] (1977).” Harris v Oklahoma, 432 US 682, 682-683; 97 S Ct 2912; 53 L Ed 2d 1054 (1977).

Thus, under the case law set out above, Michigan and Federal law would bar convictions for both felony-firearm and the underlying felony. Our most troubling question is whether these general tests for double jeopardy violations apply where the Legislature has expressed its intent that the charges be punished separately.

There can be no argument but that the Legislature has made its intent clear on the face of the statute. The mandatory sentence provision states that the felony-firearm sentence is to run before and consecutive to the sentence imposed on the underlying felony charge. MCL 750.227b(2); MSA 28.424(2X2). The statute expressly envisions dual convictions and dual sentences. The issue is not the nature of the intent, but whether that intent governs.

It is true that as a general proposition the double jeopardy guarantee is not designed as a restraint on the Legislature’s exclusive power of statutory definition:

"Because it was designed originally to embody the protection of the common-law pleas of former jeopardy, see United States v Wilson, 420 U.S. 332, 339-340 [43 L Ed 2d 232, 95 S Ct 1013] (1975), the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.” Brown v Ohio, supra, at 165.

On the other hand, we read the Brown Court’s language as much less than total deference to legislative intent, regardless of the clarity of the expression of that intent. The Legislature is free to act as it wishes, but the double jeopardy guarantee still protects the individual defendant from application of laws in violation of the constitutional mandate. For this reason the relief would not be to strike down the statute on its face, but rather to forbid its enforcement on an individual basis.

In the present case we are faced with a situation, unlike that in any of the cited cases, in which the stated legislative intent is to permit double punishment where, under the constitutional standards normally applicable, there would be a double jeopardy violation. Having to resolve this conflict directly, we hold that the legislative intent cannot override the individual’s constitutional rights.

The reason for our decision is basic; i.e., the continuing viability of the double jeopardy guarantee. Were we to hold that the Legislature, by the simple expedient of adding the phrase "this offense is not the same offense as * * * for the purpose of double jeopardy”, can create constitutionally-valid situations of multiple prosecutions and/or punishment, we would undermine the very essence of the guarantee. Suppose the Legislature amends the felony-murder statute to provide that the underlying felony is not the "same offense” as the murder? Or suppose that the Legislature creates "crime X”, which duplicates the elements of an existing offense but is manifestly intended to be a separate crime? If the express legislative intent controls, we would be forced to uphold the application of these enactments. We cannot agree that the scope of a constitutionally-guaranteed right does, or should, depend on the current objectives of the legislative body.

In making the preceding observations we do not wish to be interpreted as essentially critical of the wisdom of the felony-firearm statute. We appreciate the social and political environment which makes control over the burgeoning number of firearm-related crimes both necessary and commendable. But we also recognize that these same pressures to combat crime can push the proposed cure over the elusive and fragile balance between the rights of society and the rights of the individual that our constitutions exist to preserve:

"Even a single criminal act may lead to multiple prosecutions if it is viewed from the perspectives of different statutes. E.g., State v. Elder, 65 Ind. 282 (1879). Given the tendency of modern criminal legislation to divide the phases of a criminal transaction into numerous separate crimes, the opportunities for multiple prosecutions for an essentially unitary criminal episode are frightening.” Ashe v Swenson, (Brennan J., concurring) supra, at 451-452.

Along these lines, and in light of our holding that convictions on both felony-firearm and the underlying felony violate double jeopardy, we acknowledge that the intent of the Legislature to impose consecutive and multiple punishments will be frustrated. We recommend, even though this decision leaves the statute itself untouched, that the Legislature consider revising the statute to provide solely for sentence-enhancement rather than a distinct felony conviction. Although there may be constitutional problems with even a limited provision, the effect of the multiple convictions, and their collateral consequences, will be eliminated.

Our final issue brings us to the ultimate disposition of the case at bar. In a normal situation where we have found a double jeopardy violation because the second conviction is for an included offense, the remedy would be to vacate the second conviction. Application of this general rule to the present case would mean the vacation of the murder conviction, a result that is socially and logically unwarranted. Therefore, mindful that the general rule on vacating the included offense conviction is not without its exceptions, see People v Martin, supra, and that we have found two convictions for the "same offense”, we choose to vacate the conviction for felony-firearm and leave the murder conviction undisturbed.

The conviction for possession of a firearm in the commission of a felony is vacated.

T. M. Burns, J., concurred.

Cynar, J.

(dissenting). I dissent from the majority’s opinion for the reasons set forth in Judge Bronson’s opinion in People v Gary Hughes, 85 Mich App 674; 272 NW2d 567 (1978). There are no reported cases to date where the double jeopardy clause has been used to frustrate a legislative intent to punish a defendant twice for different aspects of the same act.

There is no reason to extend the protection of the double jeopardy clause in this case. The statute under consideration was enacted to meet a pressing societal problem. This problem might better have been counteracted by enacting a sentence-enhancement scheme similar to that of the habitual offender act, MCL 769.10-769.13; MSA 28.1082-28.1085. However, the failure to draft the felony-firearm statute in that manner does not render it constitutionally infirm. See Gore v United States, 357 US 386, 392-393; 78 S Ct 1280; 2 L Ed 2d 1405 (1958).

I would affirm both convictions and would order the trial judge to impose sentence in accordance with the felony-firearm statute.

       MCL 750.227b; MSA 28.424(2), reads in its entirety:
      "(1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.
      "(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.
      "(3) The term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section shall not be eligible for parole or probation during the mandatory term imposed pursuant to subsection (1).”
      This section was added by 1976 PA 6, § 1, effective January 1, 1977.

       US Const, Am V; Const 1963, art I, § 15.

       "No person shall be subject for the same offense to be twice put in jeopardy.” Const 1963, art I, § 15.

       "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” US Const, Am V.

        People v Henry, 395 Mich 367; 236 NW2d 489 (1975), People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975), People v Carter, 395 Mich 434; 236 NW2d 500 (1975), People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975).

       MCL 750.316; MSA 28.548.

       In People v Martin, 398 Mich 303; 247 NW2d 303 (1976), the offenses charged were under MCL 335.341(l)(a); MSA 18.1070(41)(l)(a) and MCL 335.341(4)(a); MSA 18.1070(41)(4)(a). In People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), the charged offenses were under the prior controlled substances law. MCL 335.152; MSA 18.1122, MCL 335.153; MSA 18.1123.

       Other states have reached conflicting results in analyzing double jeopardy challenges to their versions of a felony-firearm law. Compare Whitton v State, 479 P2d 302 (Ala, 1970), Roberts v State, 228 Ga 298; 185 SE2d 385 (1971), People v Nurse, 34 Ill App 3d 42; 339 NE2d 328 (1975), and Cole v State, 539 SW2d 46 (Tenn Crim App, 1976), with Jones v Commonwealth, 235 SE2d 313 (Va, 1977), and State v Saxon, 193 Neb 278; 226 NW2d 765 (1975).

       In People v Bennett, 71 Mich App 246; 247 NW2d 368 (1976), this Court held that the Legislature could constitutionally impose double punishment for a single criminal act if that result was clearly intended on the face of the legislation and from the legislative history. Bennett involved convictions for possession and sale of a controlled substance, and as such its double jeopardy arguments were implicitly overruled in People v Martin, supra, and People v Stewart (On Rehearing), supra. See People v Willie Johnson, 75 Mich App 221, 226 fn 4; 255 NW2d 207 (1977).

       We are not concerned in this case with determining the unit of prosecution, as was the case in United States v Universal CIT Credit Corp, 344 US 218; 73 S Ct 227; 97 L Ed 260 (1952), or an amendment to close a previously open loophole in a specific statute, as in Prince v United States, 352 US 322; 77 S Ct 403; 1 L Ed 2d 370 (1957).

       We can envision situations in which a prosecutor may wish to proceed on the felony-firearm statute alone. For example, if the underlying felony carries a relatively short maximum sentence or the defendant is a repeat offender under the felony-firearm law, the prosecutor may elect to forego prosecution on the underlying felony in order to utilize the mandatory sentencing provisions of felony-firearm. Of course, the elements of the underlying felony must still be proven as a prerequisite to a felony-firearm conviction.

        See Simpson v United States, 435 US 6; 98 S Ct 909; 55 L Ed 2d 70 (1978).

       Collateral consequences of multiple felony convictions include habitual offender status, increased effect for impeachment purposes at a subsequent trial, and others. See Sibron v New York, 392 US 40; 88 S Ct 1889; 20 L Ed 2d 917 (1968).


source: Caselaw Access Project

author: Cynar, J.

license: Public Domain

text:
    PEOPLE v ELOWE
    Docket No. 77-4351.
    Submitted April 10, 1978, at Lansing.
    Decided September 20, 1978.
    Nadir Elowe was charged in a two-count information with delivery of a controlled substance and possession of a firearm in the commission of a felony. The Oakland Circuit Court, Francis X. O’Brien, J., granted the defendant’s motion to quash the felony-firearm charge and an order to that effect was entered. Defendant thereafter pled guilty to the controlled substance violation. The people appeal. Held:

    The felony-firearm statute applies to a person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony. There is no requirement for a nexus between the felony and the firearm. The felony-firearm statute may act to deter the underlying felony itself by punishing the possession as opposed to the use of a firearm during the commission of a felony. The felony-firearm statute applies to all felonies, except those specifically excluded by the statute.
    Reversed.
    1. Criminal Law — Felony-Firearm—Nexus—Statutes.
    The felony-firearm statute applies to a person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony not exempted by the statute; the statutory language imposes no requirement for a nexus between the felony and the firearm (MCL 750.227b; MSA 28.424[2]).
    2. Statutes — Judicial Construction — Clear and Unambiguous Language.
    There is no room for judicial construction when the language of a statute is clear and unambiguous.
    References for Points in Headnotes
    [1, 4, 5] 21 Am Jur 2d, Criminal Law §§ 188, 189.
    73 Am Jur 2d, Statutes § 294.
    79 Am Jur 2d, Weapons and Firearms §§ 4-7.
    [2] 73 Am Jur 2d, Statutes § 194 et seq.

    [3] 73 Am Jur 2d, Statutes §§ 272, 275.

      3. Criminal Law — Statutes—Strict Construction — Overall Context — End Purposes — Goal—Legislative Intent.
    Penal statutes are to be strictly construed, however, this does not require rejection of that sense of the words which best harmonizes with the overall context of the statutes and the end purpose sought to be achieved by such legislation; the goal of judicial construction is always to facilitate the intent of the Legislature.
    4. Criminal Law — Felony-Firearm—Purpose of Statute — Underlying Felonies — Statutes.
    The purpose of the felony-firearm statute is to deter the use of handguns during the course of a felony and to assure the punishment of persons who possess handguns during the perpetration of a felony; the statute as written may act to deter the underlying felony itself by punishing the possession as opposed to the use of a firearm during the commission of the felony; the statute’s goal of deterrence, which is essentially directed toward the use of firearms during felonies, may extend to the underlying felony itself, by virtue of the prohibition against the possession of a firearm during the course of a felony (MCL 750.227b; MSA 28.424[2j).
    5. Criminal Law — Felony-Firearm—Excluded Felonies — Included Felonies — Statutes.
    The felony-firearm statute applies to all felonies except those specifically excepted by the statute; it is a cardinal rule of statutory construction that express mention of one thing in a statute generally implies the exclusion of other similar things; therefore, by excluding two felonies from the scope of the felony-firearm statute, the Legislature, by implication, stated that no other felonies were to be excluded (MCL 750.227b; MSA 28.424[2]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Lawrence J. Bunting, Assistant Prosecuting Attorney, for the people.
    Before: Danhof, C. J., and Bronson and Cynar, JJ.
   Cynar, J.

This case is concerned with the legislative intent behind the recently enacted MCL 750.227b; MSA 28.424(2), commonly referred to as the "felony-firearm statute”.

On January 20, 1977, defendant was charged in a two-count information with the offense of delivery of a controlled substance, MCL 335.341(l)(b); MSA 18.1070(41)(l)(b). The second count charged him with possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). A preliminary examination was held on January 14, 1977, after which defendant was bound over for trial. On April 20, 1977, defendant filed a motion to dismiss Count II and a supplemental motion to quash the same count was filed on July 25, 1977. After a hearing held on August 16, 1977, the trial court granted defendant’s motion to quash and an order to that effect was filed on September 19, 1977. Subsequently, defendant pled guilty to Count I and on October 11, 1977, was sentenced to two years probation. The prosecutor now appeals as of right the trial court’s decision quashing Count II of the information.

The basis for the trial court’s decision to quash was that there was no "nexus or link between the act of possession of the firearm and the perpetration of the felony”. Other constitutionally-based challenges to the statute were not addressed by the trial judge. The court’s conclusion as to the lack of "nexus” is based upon the testimony of the arresting officers at the preliminary examination. Officer Fred Earnshaw of the Royal Oak Police Department testified that on January 6, 1977, he purchased 50 "hits” of "THC” from defendant for $25. It was stipulated at the preliminary hearing that the substance purchased was actually phencyclidine (PCP). Immediately after the purchase other Royal Oak police officers entered the store and arrested defendant. Officer Robert Lovejoy testified that, during a patdown search made incident to the arrest, a loaded pistol was found on defendant’s person. There is no evidence that this pistol was used or brandished during the sale to Officer Earnshaw.

MCL 750.227b; MSA 28.424(2) reads as follows:

"(1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.
"(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.
"(3) The term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section shall not be eligible for parole or probation during the mandatory term imposed pursuant to subsection (1).”

Apparently, the trial judge interpreted § 1 of this statute to require some sort of connection between the felony and the pistol. We are sympathetic to the plight of trial judges who are presently called upon to interpret and apply this heretofore uninterpreted statute. However, we hold that the statute, as written, was meant to apply to the situation at hand and that no nexus between the felony and firearm need be established.

The felony-firearm statute applies to a person who "carries or has in his possession a firearm at the time he commits or attempts to commit a felony”. The statutory language imposes no requirement of a nexus between the felony and the firearm. When the language of a statute is clear and unambiguous, there is no room for judicial construction. Hughes v Detroit, 336 Mich 457, 459; 58 NW2d 144 (1953), Ypsilanti Police Officers Ass’n v Eastern Michigan University, 62 Mich App 87, 92; 233 NW2d 497 (1975). Although penal statutes are to be strictly construed, this does not require rejection of

"that sense of the words which best harmonizes with the overall context of the statutes and the end purpose sought to be achieved by such legislation.” People v Hall, 391 Mich 175, 190; 215 NW2d 166 (1974), People v Dempster, 396 Mich 700, 707; 242 NW2d 381 (1976).

The goal is always to facilitate the intent of the Legislature. People v Clark, 21 Mich App 712, 715; 176 NW2d 427 (1970), Aikens v Dep’t of Conservation, 387 Mich 495, 499; 198 NW2d 304 (1972).

The purpose of the felony-firearm statute is to deter the use of handguns during the course of a felony and to assure the punishment of persons who possess handguns during the perpetration of a felony. The goal of deterrence is better achieved without adding the requirement of a "nexus” between the firearm and the felony. By punishing the "possession”, as opposed to "use”, of a firearm during the commission of a felony, the Legislature was attempting to reduce the possibility of injury to victims, passersby and police officers. Had defendant’s criminal enterprise gone awry, he may well have been tempted to use his firearm to effect an escape. The mere fact that a felon has a firearm at his disposal, should he need it, creates a sufficient enough risk to others that it is within the state’s power to punish its possession. Moreover, the statute as written may act to deter the felony itself. Certainly some prospective felons may lack the courage to even attempt the crime without the added protection of a firearm. Thus, the statute’s goal of deterrence, which is essentially directed toward the use of firearms during felonies, may extend to the felony itself, by virtue of the prohibition against the possession of a firearm during the course of a felony. This additional deterrence is both desirable and consistent with the goals of the criminal law generally.

This Court’s rejection of the requirement of a "nexus” between the firearm and the felony is further supported by the statute’s legislative history. The felony-firearm statute was introduced on April 24, 1975, as House Bill 5073. Prior to that time, several other similar bills had been introduced in the House of Representatives. Two of these proposed bills punished persons who used a firearm to commit a crime or felony. Although not adopted, these proposals indicate that the Legislature did consider statutes which would have punished use and not possession. Their rejection of these alternative proposals is a tacit rejection of the nexus approach relied upon by the trial judge. Indeed, their adoption of House Bill 5073 which applies to persons who carry or possess firearms is a further rejection of this approach.

In declaring the statute inapplicable to the present case, the trial judge noted the potentially absurd results that could occur if the statute were applied to certain felonies. It is true that applying the statute to some felonies may result in a somewhat harsh result. However, it is not this Court’s rule to pass upon the wisdom of a statutory enactment. Alexander v Employment Security Comm, 4 Mich App 378, 383; 144 NW2d 850 (1966). Moreover, as noted above, the result is not so "absurd”, since applying the statute to all felonies reduces the chances that the firearm will be used and acts to deter the underlying felony as well.

The legislative history of the statute supports its application to the felony charged in the present case. During House consideration of House Bill 5073, it was proposed that the bill be amended so as to apply only to certain enumerated felonies. This proposed amendment was defeated. This indicates that the Legislature rejected an approach whereby the applicable felonies would be listed. Rather, they adopted a statute applicable to all felonies, with two specific exceptions. The statute, as enacted, excludes the felonies set out in §§ 227 and 227a. It is a cardinal rule of statutory construction that express mention of one thing in a statute generally implies the exclusion of other similar things. People v Malik, 70 Mich App 133, 136; 245 NW2d 434 (1976), Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971). Thus, by excluding two felonies from the scope of the felony-firearm statute, the Legislature, by implication, stated that no further felonies were to be excluded.

In reversing the trial court and remanding this case for trial we note that defendant raised numerous other challenges to MCL 750.227b; MSA 28.424(2) before the trial judge. However, since the trial judge has yet to rule on these points, we decline to address them at this time. Hernandez v Consumers Power Co, 51 Mich App 288, 291; 214 NW2d 846 (1974), Diggs v State Board of Embalmers and Funeral Directors, 321 Mich 508, 513; 32 NW2d 728 (1948).

Reversed and remanded.

       However, note MCL 750.2; MSA 28.192 which reads:
      "The rule that a penal statute is to be strictly construed shall not apply to this act or any of the provisions thereof. All provisions of this act shall be construed according to the fair import of their terms, to promote justice and to effect the objects of the law.” Also note People v Johnnie W. Jones, 12 Mich App 293, 295; 162 NW2d 847 (1968), and People v Hester, 24 Mich App 475, 481; 180 NW2d 360 (1970), which rely upon this statute in interpreting penal statutes.

       The same rationale can be used to justify other "possessory” offenses in the Michigan Penal Code, e.g. MCL 750.211a; MSA 28.408(1) (explosive devices), MCL 750.224a; MSA 28.421(1) (electrical or laser weapons), MCL 750.227; MSA 28.424 (concealed weapons), and MCL 750.243a; MSA 28.440(1) (fireworks). See also Detroit v Wedlow, 17 Mich App 134, 139; 169 NW2d 145 (1969), where the court noted that "a legislative body can make even innocent acts unlawful if these acts have a tendency to affect or endanger the public in connection with health, safety, morals, or general welfare.”

       These were House Bills 4076, 4163, 4216, 4266, 4744, and 4787.

       House Bill 4076, introduced on January 27, 1975, applies to crimes generally, while House Bill 4216, introduced on February 4, 1975, is limited to felonies. Both contain language punishing the use of firearms, as well as carrying firearms.

       Included on this list were murder, kidnapping, abduction, criminal sexual conduct, extortion, arson, breaking and entering, robbery, burglary, delivery of a controlled substance and assault. See 50 HJ 1267 (May 1, 1975).

       The amendment was defeated by a vote of 55-35. Note too that delivery of a controlled substance, the felony involved here, was one of the enumerated felonies listed in the amendment.

       MCL 750.227; MSA 28.424 (carrying a concealed weapon).

       MCL 750.227a; MSA 28.424(1) (carrying licensed pistol beyond the scope of the license).

       We note that challenges to the same statute have been raised in other cases before this Court. See Wayne County Prosecutor v Recorder’s Court Judge, 85 Mich App 727; 272 NW2d 587 (1978), and People v McDowell, 85 Mich App 697; 272 NW2d 576 (1978).


author:
Per Curiam.
      N. J. Kaufman, P. J.

text:
    PEOPLE v DRAKE JOHNSON
    Docket Nos. 77-2754, 77-2755.
    Submitted June 15, 1978, at Detroit
    Decided September 20, 1978.
    Leave to appeal applied for.
    Drake L. Johnson pled guilty to separate counts of armed robbery and the possession of a firearm in the commission of a felony. He was sentenced to consecutive sentences on each conviction in Detroit Recorder’s Court, Joseph E. Maher, J. The question on appeal is whether double jeopardy bars conviction for possession of a firearm during the commission of armed robbery. Held:

    A conviction of an underlying felony not excepted by the felony-firearm statute and of possession of a firearm under the statute does not involve double jeopardy, double sentence, or double punishment.
    Affirmed.
    N. J. Kaufman, P. J., dissents. He would hold that double jeopardy is violated where a defendant is convicted twice on separate counts involving identical proofs; the resulting multiple conviction and multiple punishment is unconstitutional.
    Opinion of the Court
    1. Constitutional Law — Criminal Law — Statutes—Felony-Firearm — Double Jeopardy — Double Punishment.
    The felony-firearm statute is a sentence augmenting statute, which was intended by the Legislature to require a specific additional penalty where a firearm is carried or possessed at the time of committing or attempting to commit a felony not excepted by the statute; a conviction under the statute does not involve double jeopardy, double sentence, or double punishment.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 189.
    79 Am Jur 2d, Weapons and Firearms § 24.
    [2] 21 Am Jur 2d, Criminal Law § 189.
    [3] 21 Am Jur 2d, Criminal Law § 166.

      Dissent by N. J. Kaufman, P. J.
    2. Criminal Law — Double Jeopardy — Separate Counts — Identical Proofs — Constitutional Law.

      The prohibition against double jeopardy embodied in the United States and Michigan Constitutions is violated where a defendant is convicted twice on separate counts involving identical proofs; the resulting multiple conviction and multiple punishment cannot be constitutionally condoned (US Const, Am V, Const 1963, Art 1, § 15).

    3. Constitutional Law — Legislature’s Intent — Double Jeopardy— Criminal Law.

      The intent of the Legislature cannot override the mandates of the United States and Michigan Constitutions regarding the prohibition against double jeopardy; the Legislature cannot sanction double convictions and double punishments for the same crime by saying "we intend it so”.

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

      Sallen, Sallen, Seymour & Sallen, for defendant on appeal.
    Before: N. J. Kaufman, P. J., and Beasley and P. R. Mahinske, JJ.

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

   Per Curiam.

We agree with the dissent that the issues raised concerning the plea-taking are without merit.

For the reasons delineated in People v Walter Johnson, we decline to find that the felony-firearm statute is unconstitutional as applied in this case.

Affirmed.

N. J. Kaufman, P. J.

(dissenting). On March 29, 1977, defendant pled guilty to one count of armed robbery, MCL 750.529; MSA 28.797, and one count of possession of a firearm in the commission of a felony, MCL 750.227(b); MSA 28.424(2). On April 11, 1977, defendant was sentenced to a term of from 12 to 40 years imprisonment on the armed robbery count and to a mandatory two-year term of imprisonment on the "felony-firearm” count, to run consecutively. Defendant appeals as of right.

On appeal, defendant raises three issues, two of which pertain to the guilty plea procedure itself. They have been carefully considered and are of no merit. The third presents a more troubling issue: Does double jeopardy bar conviction for possession of a firearm during the commission of a felony, where the felony is armed robbery, and a firearm was, in fact, used?

It appears that the most prudent method of dealing with the felony-firearm issue is to evaluate each case on its own facts. In this case, the pertinent portion of the information reads as follows:

’’COUNT I
* * * did assault the above-named COMPLAINANT while armed with a dangerous weapon or an article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, to-wit: a handgun and did then and there feloniously rob, steal and take from the person of said COMPLAINANT, or in his presence, United States Currency and an 1969 Cadillac, automobile Contrary to Sec. 750.529, M.C.L.A.
’’COUNT II
" * * * did then and there carry or have possession of a firearm, to-wit: a handgun in the commission or attempt to commit a felony to-wit: Robbery Armed, Contrary to M.C.L.A. 750.227b.” (Emphasis added.)

Thus, to satisfy its burden of proof as to Count I, the prosecution has to prove all of the elements that constitute common-law robbery and the added element that defendant was armed with a handgun when he robbed the complainant, as alleged in the information. To satisfy its burden of proof as to Count II, the prosecution has to prove that defendant was armed with a handgun at the time he committed a felony, the armed robbery of complainant. Clearly, the prosecutor’s task regarding Count I is identical to its task regarding Count II.

To convict defendant twice on separate counts involving identical proofs violates the prohibition against double jeopardy embodied in the United States Constitution and the Michigan Constitution. Not only would defendant be subject to the collateral consequences of multiple convictions but he would also be subject to multiple punishment for the same offense. Such a result cannot be constitutionally condoned. Simpson v United States, 435 US 6; 98 S Ct 909; 55 L Ed 2d 70 (1978), Jeffers v United States, 432 US 137; 97 S Ct 2207; 53 L Ed 2d 168 (1977), North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969), People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), People v Martin, 398 Mich 303; 247 NW2d 303 (1976).

This formulation does raise two potential problems which merit discussion. First, my decision would appear to ignore the clear intent of the Legislature. However, the intent of the Legislature cannot override the mandates of the United States Constitution and the Michigan Constitution. The Legislature cannot sanction double convictions and double punishments for the same crime by saying "We intend it so”.

It should be noted that it would have been easy for the Legislature to make the possession of a firearm while committing a felony an aggravated circumstance to be applied in sentencing an offender for the felony. See e.g., MCL 750.529; MSA 28.797. However, I would strongly caution against upholding the "felony-firearm” law solely because the result could be achieved in another manner. This Court would then be in the position of disregarding its duty of judicial review in constitutional cases.

The second potential problem is whether or not defendant waived his right to double jeopardy protection by pleading guilty to both offenses. I conclude that he did not. People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976).

Since I find that defendant’s guarantees of protection against double jeopardy were violated in this case, I would vacate defendant’s plea of guilty on the "felony-firearm” count and order that charge dismissed and affirm defendant’s plea of guilty on the armed robbery count.

        People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978).

       MCL 750.227b; MSA 28.424(2).

       In pertinent part, " * * * [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb * * * ”, US Const, Am V.

       In pertinent part, "No person shall be subject for the same offense to be twice put in jeopardy”. Const 1963, art 1, § 15.

       Multiple convictions may be a factor in parole consideration; they certainly enhance the punishment meted out if a defendant is subsequently found to be an habitual offender.

       In pertinent part, "If an aggravated assault or serious injury is inflicted by any person while committing an armed robbery, as defined in this section, the sentence shall be not less than 2 years’ imprisonment in the state prison.”


author: Per Curiam. N. J. Kaufman, P.J.

text:
    PEOPLE v MITCHELL
    Docket No. 77-4057.
    Submitted June 14, 1978, at Detroit.
    Decided September 20, 1978.
    Leave to appeal applied for.
    Robert L. Mitchell was convicted of assault with intent to rob while armed and possession of a firearm while in commision of or attempting to commit a felony, Wayne Circuit Court, Thomas Roumell, J. The defendant appeals, claiming that the felony-firearm statute in his case violated his guarantee against being twice placed in jeopardy for the same offense, that the prosecutor’s closing arguments were improper and that the trial court’s failure to give an instruction on lesser included offenses requires reversal. Held:

    1. The felony-firearm statute is not an unconstitutional violation of the Federal and state double jeopardy clauses as applied to the defendant.
    2. The prosecutor’s remarks were improper, but the defendant’s failure to object during trial precludes reversal.
    3. Failure to request instructions on lesser included offenses generally bars relief.
    Affirmed.
    N. J. Kaufman, P. J., dissented. He would hold that the defendant was twice convicted by separate counts involving identical proofs and that, therefore, this defendant’s constitutional guarantees against double jeopardy have been violated by the felony-firearm statute as applied to the facts of the case at bar. He would reverse the felony-firearm conviction.
    Opinion of the Court
    1. Criminal Law — Constitutional Law — Double Jeopardy — Felony — Firearm—Statutes.
    The felony-firearm statute is not an unconstitutional violation of the Federal and state double jeopardy clauses as applied to a defendant who has been convicted of 1) assault with intent to rob while armed and 2) possession of a firearm while in commission of or attempting to commit a felony arising out of the same incident, with the defendant receiving two consecutive sentences for the two convictions (MCL 750.227b; MSA 28.424[2]).

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 547.
    [2] 75 Am Jur 2d, Trial §§ 317, 906-909.
    [3] 75 Am Jur 2d, Trial § 877.
    [4] 75 Am Jur 2d, Trial §§ 919-922.
    [5] 21 Am Jur 2d, Criminal Law § 189.
    [6] 21 Am Jur 2d, Criminal Law § 166.

      2. Criminal Law — Argument of Counsel — Curative Instructions —Preserving Issue.
    Reversible error does not result from a trial court’s failure to give cautionary instructions to the jury in response to a prosecutor’s allegedly improper closing argument where defense counsel neither objects to the closing argument nor requests a cautionary instruction and where appropriate instructions would cure any prejudice.
    3. Criminal Law — Instructions to Jury — Lesser Included Offenses — Request for Instruction — Appeal and Error.
    A defendant’s failure to request an instruction to the jury on lesser included offenses generally precludes the Court of Appeals from giving any relief for the alleged error.
    Dissent by N. J. Kaufman, P. J.
    4. Criminal Law — Instructions to Jury — Felony-Firearm—Curative Instruction.

      An allegedly improper instruction to the jury wherein a trial judge instructed the jury that before the jury could convict a defendant on a charge of felony-ñrearm they must ñrst ñnd the defendant guilty of a ñrst charge, assault with intent to rob while armed, did not result in reversible error where any error that may have resulted regarding the instruction was timely corrected by the trial court before the jury retired to deliberate.

    5. Criminal Law — Constitutional Law — Double Jeopardy — Felony-Firearm — Dual Convictions.

      Conviction of a defendant on two counts, one for assault- with intent to rob while armed and one for felony-ñrearm arising out of the same incident, wherein the prosecution’s responsibility is to prove the same elements for each offense, violates the prohibitions against double jeopardy embodied in the Federal and state constitutions.

    6. Constitutional Law — Double Jeopardy — Legislative Intent.

      Guarantees in the United States and the Michigan Constitutions

      against being twice put in jeopardy for a single offense cannot be overridden by the Legislature saying that it intends double convictions and double punishments for the same crime.

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

      Carl Ziemba, for defendant on appeal.
    Before: N. J. Kaufman, P. J., and Beasley and P. R. Mahinske, JJ.

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

   Per Curiam.

Defendant attempted to plead guilty to a two-count information involving a charge of assault with intent to rob while armed in violation of MCL 750.89; MSA 28.284, and possession of a firearm while in commission of or attempting to commit a felony in violation of MCL 750.227b; MSA 28.424(2).

The trial judge rejected the plea as being factually insufficient. The case then went to trial and the jury convicted defendant under both counts. After sentence to the mandatory two years under felony-firearm and, thereafter, not less than five nor more than ten years under assault with intent to rob while armed, defendant appeals as of right.

We find that defendant’s claims of error are without merit. Three issues warrant comment.

We reject defendant’s claim that the felony-firearm statute is an unconstitutional violation of the Federal and state double jeopardy clauses as applied to him in this case for the reasons set forth in People v Walter Johnson.

We agree with the dissent that the prosecutor’s remarks, as quoted in the dissent, were improper, but that failure to object during trial precludes reversal now.

We also agree with the dissent that failure in the trial court to request an instruction regarding lesser included offenses of assault with intent to rob while armed precludes reversal of the conviction and grant of a new trial.

As indicated, we believe defendant’s other claims of error are without sufficient merit to reverse defendant’s convictions.

Affirmed.

N. J. Kaufman, P.J.

(dissenting). Defendant was convicted of assault with intent to rob while armed, MCL 750.89; MSA 28.284, and possession of a firearm while in the commission or attempt to commit a felony, MCL 750.227b; MSA 28.424(2). Sentenced to a term of from five to ten years imprisonment on the assault count, and to a mandatory term of two years imprisonment on the "felony-firearm” count, to run consecutively, defendant appeals as of right.

On appeal, defendant contends that the trial court coerced a verdict of guilty by instructing that "before however, you can find defendant guilty under this count, count two, you must first find him guilty of count one”. Any error that may have resulted regarding the instruction noted above was timely corrected by the trial court before the jury retired to deliberate. No reversible error resulted.

Defendant also argues that the trial court reversibly erred by failing to instruct on any lesser included offenses of assault with intent to rob while armed. As no lesser included offenses were requested, relief is barred under People v Henry, 395 Mich 367; 236 NW2d 489 (1975).

Defendant also complains about the prosecutor’s closing argument. Defendant argues that several statements made by the prosecutor to the jury resulted in a miscarriage of justice. Only one set of remarks merits discussion:

"[Mr. Seller, Assistant Prosecuting Attorney] But if you believe that then find him not guilty. If you believe that you’ll believe any story that any defendant has to offer and we might as well shut down the system until defendants are ready to take the witness stand and confess in open Court. Because that is what is required to get a conviction.”

The clear implication of those statements to the jury is that they should convict to avoid the risk of weakening the legal system. The remarks of the prosecutor cannot be condoned. People v Biondo, 76 Mich App 155; 256 NW2d 60 (1977), lv den, 402 Mich 835 (1977), People v Gloria Williams, 65 Mich App 753; 238 NW2d 186 (1975). The prosecutor is admonished for resorting to such deliberately inflammatory tactics. Nevertheless, defense counsel did not object and did not request a cautionary instruction. We do not speculate on the reasons for such omission. In any event, defense counsel’s inaction brings this case within the scope of People v Hall, 396 Mich 650; 242 NW2d 377 (1976). We are precluded from finding reversible error by the holding of that case.

Defendant’s final argument is the most troublesome. Was defendant denied his constitutional guarantee of protection against double jeopardy where he was convicted of assault while armed with a dangerous weapon with intent to rob and possession of a firearm during the commission of a felony?

Evaluating this case on its own facts, I note that the pertinent portion of the information reads as follows:

"COUNT I
"being armed with a dangerous weapon, or an article used or fashioned in a manner to lead a person assaulted reasonably to believe it to be a dangerous weapon, to-wit: a R.G. Model R.C. 31, .38 caliber Special revolver, bearing serial 012077 did assault the above-named Complainant with intent to rob and steal; contrary to Sec. 750.89, M.C.L.A.
"COUNT II
"did then and there carry or have possession of a firearm, to-wit: a R.G. Model R.C. 31, .38 caliber Special revolver bearing serial 012077 in the commission or attempt to commit a felony to-wit: Assault with intent to Rob being Armed, contrary to M.C.L.A. 750.227b.” (Emphasis added.)

To satisfy its burden of proof as to Count I, the prosecution had to prove all of the elements of the felony, assault with intent to rob while unarmed (MCL 750.88; MSA 28.283) and the added element that defendant was armed with a revolver when the assault was committed. To satisfy its burden as to Count II, the prosecution had to prove that defendant was armed with a revolver at the time he committed a felony, the assault of complainant with intent to rob while armed. It may be seen that the prosecution’s responsibility regarding Count I is identical to its responsibility regarding Count II.

Thus, in this case, defendant was convicted twice by separate counts involving identical proofs. Defendant’s dual convictions violate the prohibition against double jeopardy embodied in the United States Constitution and the Michigan Constitution. The procedure followed by the prosecution subjects defendant to the collateral consequences of multiple convictions. It also subjects him to multiple punishment for the same offense. Such a result cannot be constitutionally condoned. North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969), People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), People v Martin, 398 Mich 303; 247 NW2d 303 (1976).

I acknowledge that my decision would appear to ignore the clear intent of the Legislature. However, the mandates of the United States Constitution and the Michigan Constitution cannot be overridden by the Legislature saying "We intend double convictions and double punishments for the same crime”.

Since I find that defendant’s guarantees of protection against double jeopardy were violated in this case, I would vacate defendant’s conviction on the "felony-firearm” count and order that charge dismissed and would affirm defendant’s conviction for assault with intent to rob while armed.

       85 Mich App 654; 272 NW2d 605 (1978).

        People v Hall, 396 Mich 650; 242 NW2d 377 (1976).


author: Per Curiam. N. J. Kaufman, P. J.

text:
    PEOPLE v BERRY
    Docket No. 77-4728.
    Submitted August 31, 1978, at Detroit.
    Decided September 20, 1978.
    Leave to appeal applied for.
    Thomas Berry, on his plea of guilty, was convicted of armed robbery and possession of a firearm in the commission of a felony in the Recorder’s Court for the City of Detroit, Robert L. Evans, J. Defendant appeals. Held:

    The felony of armed robbery by use of a firearm is a necessarily included offense of a felony-firearm violation incidental to that robbery, therefore, conviction and sentencing for both a felony-firearm violation and for the underlying felony of armed robbery by use of a firearm is precluded by the double jeopardy provisions of the United States and Michigan Constitutions. The guarantee against double jeopardy does not ultimately turn upon whether the Legislature intended a particular act to be punished by only one or more statutes.
    Affirmed in part; reversed in part.
    N. J. Kaufman, P. J., concurred and would hold that the prohibition against double jeopardy is violated when a defendant is convicted twice on separate counts involving identical proofs. The intent of the Legislature cannot override the mandates of the constitution regarding the prohibition against double jeopardy; therefore, the Legislature cannot sanction double convictions and double punishments for the same crime by saying "we intend it so”.
    Opinion of the Court
    1. Criminal Law — Armed Robbery — Felony-Firearm—Necessarily Included Offenses — Double Jeopardy — Constitutional Law.
    The felony of armed robbery by use of a firearm is, by definition, a necessarily included offense of a felony-firearm violation incidental to that robbery because it is impossible to commit the latter without committing the former; therefore, conviction and sentencing for both a felony-firearm violation and for the underlying felony of armed robbery by use of a firearm is precluded by the double jeopardy provisions of the Federal and Michigan Constitutions (US Const, Am V, Const 1963, Art 1, §15).

      References for Points in Headnotes
    [1, 3, 4] 21 Am Jur 2d, Criminal Law §§ 187-189.
    67 Am Jur 2d, Robbery §§ 4, 48.
    79 Am Jur 2d, Weapons and Firearms §§ 24, 25.
    Limitations under double jeopardy clause of Fifth Amendment upon state criminal prosecutions — Supreme Court cases. 25 L Ed 2d 968.
    [2, 3, 5] 21 Am Jur 2d, Criminal Law 166.
    [5] 16 Am Jur 2d, Constitutional law §§ 150, 168, 169.

      2. Constitutional Law — Double Jeopardy — Legislative Intent— Multiple Punishment.
    The constitutionally guaranteed protection against double jeopardy does not ultimately turn upon whether the Legislature intended a particular act to be punished by only one or more statutes; one of the most fundamental principles of constitutional government is that the constitution limits the power of the Legislature and not vice-versa.
    3. Constitutional Law — Double Jeopardy — Cumulative Punishment — Included Offenses.
    The double jeopardy clause prohibits not only cumulative punishment but also conviction for both offenses where a defendant is convicted of two offenses one of which is included in the other; conviction for both a greater offense and one legally necessarily included is precluded.
    Concurrence by N. J. Kaufman, P. J.
    4. Criminal Law — Double Jeopardy — Separate Counts — Identical Proofs — Constitutional Law.

      The prohibition against double jeopardy embodied in the United States and Michigan Constitutions is violated where a defendant is convicted twice on separate counts involving identical proofs; the resulting multiple conviction and multiple punishment cannot be constitutionally condoned (US Const, Am V, Const 1963, Art 1, § 15).

    5. Constitutional Law — Legislature’s Intent — Double Jeopardy— Criminal Law.

      The intent of the Legislature cannot override the mandates of the United States and Michigan Constitutions regarding the prohibition against double jeopardy; the Legislature cannot sanction double convictions and double punishments for the same crime by saying "we intend it so”.

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

      William A. House, for defendant.
    Before: N. J. Kaufman, P. J., and R. M. Maher and D. C. Riley, JJ.
   Per Curiam.

Defendant pled guilty to robbery armed, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2).

Defendant contends that the trial court erred in denying defendant’s motion to withdraw his plea because there was an inadequate factual basis. We find that the proper factual basis was established and that the trial court did not err.

However, we do not believe defendant’s conviction under the felony-firearm statute is constitutionally valid. See Wayne County Prosecutor v Recorder’s Court Judge, 85 Mich App 727; 272 NW2d 587 (1978), People v Mitchell, 85 Mich App 757; 272 NW2d 601 (1978) (N. J. Kaufman, J., dissenting), People v Gerald Hughes, 85 Mich App 8; 270 NW2d 692 (1978) (D. F. Walsh, J., dissenting). Though we find the robbery armed charge a necessarily included offense of the felony-firearm charge, we choose to vacate the conviction under the felony-firearm statute and affirm the robbery armed conviction. Wayne County Prosecutor v Recorder’s Court Judge, supra.

Affirmed in part; reversed in part.

N. J. Kaufman, P. J.

(concurring). I concur separately for the reasons stated in my dissenting opinions in People v Walter Johnson 85 Mich App 654; 272 NW2d 605 (1978), People v Mitchell, 85 Mich App 757; 272 NW2d 601 (1978), and People v Drake Johnson, 85 Mich App 752; 272 NW2d 599 (1978).


author: Allen, P.J.

text:
    SAUNDERS v SMITH
    Docket No. 30267.
    Submitted June 6, 1978, at Lansing.
    Decided September 21, 1978.
    Reversed in lieu of leave to appeal, 405 Mich 833.
    Phyllis E. Smith commenced a divorce action against Harry G. Smith. Harry G. Smith filed an answer and counter-complaint. The parties reached an agreement as to the division of property and at a hearing, on March 30, 1976, the property settlement was stated in full on the record and Harry G. Smith withdrew his pleadings and the case proceeded pro confesso. Phyllis E. Smith died on April 28, 1976, just 29 days following the court proceeding, but before the judgment of divorce had been entered. Upon motion of Dorothy Saunders, sister of the decedent and special administratrix of the estate of Phyllis E. Smith, default judgment of divorce nunc pro tunc was entered on June 17, 1976, Oakland Circuit Court, Farrell E. Roberts, J. Defendant appeals. Held:

    There can be no doubt but that the trial court and the respective attorneys intended that the divorce be given immediate effect at the hearing on March 30, 1976.
    Affirmed.
    Divorce — Judgment—Judgment in Writing — Terms of Divorce— Oral Judgment — Good Faith.
    A judgment of divorce is not effective, as a general rule, and the parties remain married, until the judgment is reduced to writing and signed; however, where the trial judge reads into the record all the terms of divorce and declares that such statement is to be given immediate effect as a judgment of divorce without further action or signing of a written judgment, such an oral declaration may be as fully effective as a written judgment of divorce; and, an exception to the general rule may occur where the parties have in good faith acted on the strength of a judge’s oral statement that a divorce is or will be granted.
    Reference for Points in Headnote
    24 Am Jur 2d, Divorce and Separation § 419.

      Hatchett, Dewalt & Hatchett, for plaintiff.

      Barry, Pantel & James, for defendant.
    Before: Allen, P.J., and Cynar and D. R. Freeman, JJ.

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

   Allen, P.J.

Where the wife in a pro confesso divorce proceeding dies 29 days after the date of the proceedings but before a formal judgment of divorce has been entered, may a written nunc pro tunc judgment of divorce be entered? On June 17, 1976, the trial court held "yes” and defendant-husband appeals of right.

Phyllis and Harry Smith, defendant, were married in April, 1945, and lived together until February, 1974, when they separated and Phyllis filed a complaint for divorce. No children were born of the marriage. An answer and counter-complaint were filed by the defendant in April, 1974. On March 30, 1976, the matter came on for hearing, the parties having reached an agreement as to the division of property. The property settlement agreement was stated in full on the record, defendant withdrew his pleadings, and the case proceeded pro confesso. At the conclusion of the wife’s testimony the following occurred:

"MR. TOBY [Plaintiff’s Attorney]: Does the Court have any questions?
"THE COURT: I have no questions. You may step down. Judgment is granted. Property disposed of as set forth on the record. There will be no alimony. Insert the usual dower and insurance provisions.
"MR. TOBY: One further point, Your Honor. I would ask this judgment, even though written judgment will be prepared after this, be given immediate effect?
"MR. KENNEDY [Defendant’s Attorney]: I have no objection.
"THE COURT: I have no objection.
"MR. TOBY: Thank you.”

Phyllis Smith died April 28, 1976, just 29 days following the court proceedings but before a written judgment of divorce had been entered. Upon motion of Dorothy Saunders, sister of the decedent and special administratrix of Phyllis Smith’s estate, default judgment of divorce nunc pro tunc was entered June 17, 1976. Under the property settlement agreement the wife was awarded some $6,000 in savings bonds, some of which were in defendant’s name alone, $13,465 in the defendant’s stock savings program, $8,000 in Brunswick stock and $10,000 in cash, payable by defendant within 90 days from the date of the pro confesso hearing.

We find that the instant appeal is controlled by Tiedman v Tiedman, 400 Mich 571, 577; 255 NW2d 632 (1977). In that case, as here, the attorneys stated on the record the terms of the property settlement, the parties acknowledged the accuracy of the terms stated and the wife then testified. Unlike the instant case, the trial court then stated " 'I’ll approve the property settlement as stated and upon presentation I will sign the judgment of divorce’ ”. 400 Mich at 573. Six days later, before a judgment of divorce had been presented, the husband died in a fire and the wife moved to dismiss the complaint for divorce for the reason that she had become a widow. The trial court denied the motion and, as here, entered a judgment of divorce nunc pro tunc to the date of the hearing. The Court of Appeals affirmed but the Supreme Court reversed, saying that: "Generally * * * until reduced to writing and signed”, a judgment is not effective and the parties remain married. Id., at 576. To this general rule, the Court then added a full paragraph exception.

"We do not wish to be understood as saying that a judgment of divorce may not be made effective immediately by a judge’s oral statement. If the judge were to read into the record all the terms of a judgment of divorce, and declare that such statement is to be given immediate effect as a judgment of divorce without further action or signing of a written judgment, such an oral declaration might be as fully effective as a written judgment of divorce.” 400 Mich at 577. (Emphasis supplied.)

The Tiedman Court also stated that an exception to the general rule might occur where the parties have in good faith "acted on the strength of a judge’s oral statement that a divorce is or will be granted”. 400 Mich at 575, n 1.

The instant appeal falls within the full paragraph exception quoted above. There can be no doubt but that the trial court and the respective attorneys intended that the divorce "be given immediate effect”. Based on the record it appears with certainty that the parties were divorced March 30, 1976.

Affirmed, costs to plaintiff.

       The written opinion of the trial court granting the motion stated: "On the 30th day of March 1976, testimony was taken that satisfied me that the marriage of these parties had broken down to the extent that they could no longer continue their marriage relationship. Attorneys for both parties agreed with the Court that the marriage should cease as of that date and that the written Judgment would so be prepared. Under these circumstances a Judgment will be prepared granting the divorce as of March 30,1976.” (Emphasis supplied.)

       The so-called reliance exception to Tiedman is discussed in an opinion of this Court, released concurrently with this opinion in Ensman v Ensman, 86 Mich App 91; 272 NW2d 176 (1978).


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

text:
    PEOPLE v McDONALD
    Docket No. 77-1294.
    Submitted June 12, 1978, at Detroit.
    Decided September 21, 1978.
    Leave to appeal applied for.
    Lee A. McDonald was found guilty but mentally ill of felony murder in the Wayne Circuit Court, William Leo Cahalan, J. Defendant appeals raising the issue of what effect, if any, the repeal of the rape statute and passage of the criminal sexual conduct act have had upon prosecutions for murder committed in the perpetration or attempted perpetration of a rape, and the issue of whether a statute which permits the conviction of a male for felony murder-rape is a statute which denies equal protection where it recognizes rape as only one form of criminal sexual conduct, subject to the same penalties as other forms of forcible sexual penetration perpetrated by females, but does not allow conviction of females of felony murder-rape. Held:

    1. The Legislature intended the crime of felony murder-rape to continue in existence despite the repeal of the rape statute and the passage of the criminal sexual conduct act where, as a result of such recodification, the offense formerly known as rape became punishable as one form of criminal sexual conduct in the first or third degree. In order for a classification drawn by a statutory scheme to be constitutionally valid on equal protection grounds the classification must be reasonable, not arbitrary, and rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. The classification drawn by the felony murder statute whereby only males can be convicted as principals of felony murder-rape is not arbitrary or unreasonable, and does bear a fair and substantial relation to the Legislature’s object of more severely penalizing felonies which are inherently dangerous to human life. Murder committed in the perpetration of carnal knowledge of a woman by force and against her will is felony murder while murder committed in the perpetration of other forms of forcible sexual penetration is not felony murder.

      References for Points in Headnotes
    [1] 40 Am Jur 2d, Homicide § 534.
    [2] 16 Am Jur 2d, Constitutional Law §§ 494, 496.
    [3] 40 Am Jur 2d, Homicide § 72.
    [4] 65 Am Jur 2d, Rape § 27.
    [5] 40 Am Jur 2d, Homicide §§ 578, 579.

      2. Sufficient circumstantial evidence was presented to justify a reasonable person in concluding that all elements of rape or attempted rape were established beyond a reasonable doubt at the defendant’s trial.
    Affirmed.
    1. Criminal Law — Rape—Repeal of Statutes — Criminal Sexual Conduct — Statutes.
    The Legislature intended the crime of felony murder-rape to continue in existence despite the repeal of the rape statute and the passage of the criminal sexual conduct act; with the passage of the criminal sexual conduct act the offense formerly known as rape became punishable as one form of criminal sexual conduct in the first or third degree, and thus, the conduct formerly known as rape still exists as a felony (MCL 750.316, 750.520a et seq.; MSA 28.548, 28.788[1] et seq.).

    2. Constitutional Law — Equal Protection — Test—Statutory Schemes — Validity.
    The test used to determine equal protection questions provides that in order to be constitutionally valid a classification drawn by a statutory scheme must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.
    3. Homicide — Criminal Law — Felony Murder — Statute.
    Murder committed in the perpetration of carnal knowledge of a woman by force and against her will is felony murder, while murder committed in the perpetration of other forms of forcible sexual penetration is not felony murder. (MCL 750.316; MSA 28.548).
    4. Constitutional Law — Criminal Law — Felony Murder — Classifications — Equal Protection.
    The classification drawn by the felony murder statute whereby only males can be convicted as principals of felony murder-rape is not arbitrary or unreasonable, but in fact bears a fair and substantial relation to the Legislature’s objective of more severely penalizing felonies which are inherently dangerous to human life; the rationale behind the classification is the determination that only males can rape and that this form of sexual assault is more inherently dangerous to human life than others.
    5. Criminal Law — Evidence—Circumstantial Evidence — Felony Murder-Rape — Sufficiency of Evidence.
    Sufficient circumstantial evidence was presented at a defendant’s trial for felony murder-rape to justify a reasonable person in concluding that all elements of rape or attempted rape were established beyond a reasonable doubt where there was evidence that the body of the victim was found nude with stab wounds and a fractured skull outside of the house where she had been babysitting, with evidence indicating forced sexual intercourse, where the defendant was the last person known to be with the victim when she was still alive and he was found unconscious in a field about 1-1/2 hours after the murder with bloodstained clothing and teethmarks on his wrist, where the defendant’s fingerprints, made in a substance appearing to be blood, were found on broken furniture in the house where the victim had been babysitting, and where the defendant told the police that he killed the victim.

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

      Carl Ziemba, for defendant.
    Before: N. J. Kaufman, P.J., and Beasley and P. E. Mahinske, JJ.

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

   N. J. Kaufman, P.J.

Following a jury trial held January 4 through February 17, 1977, defendant was found guilty but mentally ill of felony murder, in violation of MCL 750.316; MSA 28.548. He was sentenced to life imprisonment on March 16, 1977, and appeals as of right.

On appeal defendant raises a two-pronged legal issue of first impression: What effect, if any, have the repeal of the rape statute, formerly MCL 750.520; MSA 28.788, and the passage of the criminal sexual conduct act, MCL 750.520a et seq.; MSA 28.788(1) et seq., had upon prosecutions for murder committed in the perpetration or attempted perpetration of a rape? Defendant argues first, that there can be no conviction for felony murder-rape because "rape” is no longer a crime, and secondly, that his conviction denies him equal protection of the laws because murders committed by females in the perpetration of forcible sexual assaults are not punishable as "felony murders”.

The statute under which defendant was convicted provides in relevant part:

"All murder * * * which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping, shall be murder of the first degree * * * .” MCL 750.316; MSA 28.548. (Emphasis added.)

Prior to the passage of the criminal sexual conduct act in 1974, it was clear that the word "rape” in MCL 750.316 meant the offense which was defined in the rape statute, MCL 750.520. The rape statute made it a felony to "ravish and carnally know any female of the age of 16 years, or more, by force and against her will”, or to "unlawfully and carnally know and abuse any female under the full age of 16 years”. This statutory definition was basically a codification of common law rape, which was "the carnal knowledge of a woman by force and against her will”. People v Crosswell, 13 Mich 427, 432 (1865).

However, with the passage of the criminal sexual conduct act, the offense formerly known as rape became punishable as one form of criminal sexual conduct in the first or third degree. MCL 750.520b, MCL 750.520d; MSA 28.788(2), MSA 28.788(4). Thus, at the time defendant McDonald committed his crime, the conduct formerly known as rape was still a felony. If sexual penetration was accomplished under aggravating circumstances, such as the use of force or coercion causing personal injury to the victim, as here, the offense became first-degree criminal sexual conduct. MCL 750.520b(l)(f); MSA 28.788(2)(l)(f).

"Rape” is not the only felony within the murder statute that has undergone a change in definition from the common law. Most of the enumerated felonies of MCL 750.316 no longer retain their precise common law meanings. For instance "burglary”, at common law the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony therein, has been recodified into several statutes, none of which includes all of the common law elements and no others. See MCL 750.110 et seq.; MSA 28.305 et seq. "Kidnapping” no longer requires movement of the victim to another country, MCL 750.349; MSA 28.581, and "extortion” may now be committed by persons who are not public officers. MCL 750.213; MSA 28.410. For purposes of felony murder, we perceive no difference between these recodifications of common law felonies and the recodification of "rape” as criminal sexual conduct in the first degree. See People v Gavin, 37 Mich App 335; 194 NW2d 498 (1971), lv den 387 Mich 766 (1972).

We cannot presume that the Legislature intended to abolish the crime of murder in the perpetration of a rape by its passage of the criminal sexual conduct act. Rape has been one of the enumerated felonies of the murder statute since its enactment in 1837. Just as other statutory redefinitions of felonies enumerated in the murder statute have not somehow removed these felonies from the purview of felony murder, we find that the Legislature intended the crime of felony murder-rape to continue in existence despite the passage of the criminal sexual conduct act.

Defendant’s equal protection argument is more troublesome. The issue is whether the conviction of a male for felony murder-rape is a denial of equal protection in a state which now recognizes rape as only one form of criminal sexual conduct, subject to the same penalties as other forms of forcible sexual penetration perpetrated by females. The test we use in determining the equal protection question is that of Reed v Reed, 404 US 71; 92 S Ct 251; 30 L Ed 2d 225 (1971). In order to be constitutionally valid, the classification drawn by the statutory scheme " 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike’ ”. Reed, supra, at 76, quoting from Royster Guano Co v Virginia, 253 US 412, 415; 40 S Ct 560; 64 L Ed 989 (1920).

In the case at bar the classification assailed is created by the fact that the word "rape”, rather than the words "criminal sexual conduct in the first degree”, appears in the murder statute. As we read the statute, this wording means that murder committed in the perpetration of carnal knowledge of a woman by force and against her will is felony murder, while murder committed in the perpetration of other forms of forcible sexual penetration is not felony murder. Examples are murder committed by a woman in the course of forced fellatio, cunnilingus, or insertion of an object or body part into the vagina of a woman or the rectum of a man or woman. The murder statute thus may, in some instances, create a distinction based on the sex of the actor.

The prosecutor argues that if the classification found in the felony murder statute violates equal protection, then rape laws themselves would violate equal protection. Courts in other jurisdictions have found that rape laws do not deny equal protection to males. There would be no change under the Equal Rights Amendment because rape laws are based on a physical characteristic unique to men. See Brown, Emerson, Falk and Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale LJ 871, 954-961 (1971). Courts which have considered the constitutionality of rape statutes have reasoned, first, that physiologically, only men are capable of rape. There is thus no disparate treatment of persons similarly situated. Secondly, the objectives of rape laws are to protect women from forced sexual intercourse, unwanted pregnancy, and the physical and psychological injury which often accompanies rape. Finally, rape by males is a serious social problem, while "rape” by females is not necessarily so; in addition, criminal statutes do protect against females as aiders and abettors of rapists and as perpetrators of other forms of sexual assaults. As stated by the Minnesota Supreme Court in State v Witt, 245 NW2d 612, 616-617 (1976):

" * * * in enacting the former rape law, the Minnesota Legislature presumably made a factual determination that the rape of women by men is a significant social problem, involving unique and potentially severe physiological, psychological, and social injuries and traumas, and that other forms of sexual penetration, including a woman forcing sexual intercourse upon a man, are much less serious social problems because they occur extremely infrequently or because the harms they inflict are less grave, or because of both of these factors. This sort of legislative factual determination is not subject to judicial review.” (Footnote omitted.)

In the instant case we find, consistent with the cases dealing with rape statutes, that it is not a violation of equal protection that only males can be convicted as principals of felony murder-rape. Only males can rape, and the Legislature has apparently made the determination that this particular form of sexual assault is more inherently dangerous to human life than others. This is the rationale behind felony murder. See People v Pavlic, 227 Mich 562; 199 NW 373 (1924), People v Carter, 387 Mich 397, 422; 197 NW2d 57 (1972); Commentary, II CJI pp 16-107 through 16-123. We can find no fault with this determination, any more than we could with the legislative decision not to include other serious crimes, e.g. sale of heroin, in the list of enumerated felonies. We thus find that the classification drawn by MCL 750.316 is not arbitrary or unreasonable, but in fact bears a fair and substantial relation to the object of more severely penalizing felonies which are inherently dangerous to human life. Should the Legislature wish to include other forms of first-degree criminal sexual conduct in the list of enumerated felonies, we would of course have no quarrel with such a revision of the law.

Defendant also argues that there was insufficient circumstantial evidence to show rape or attempted rape. We disagree. The body of the victim was found nude, in the backyard of Julie Fields’ Romulus residence at approximately 6 a.m. on June 27, 1976. The cause of death was numerous stab wounds, a fractured skull, and/or hemorrhaging in the brain. On the victim’s labia minora (inner lips of the vagina) were two abrasions consistent with forced sexual intercourse. The inside of Fields’ house, where the victim had been babysitting, was covered with blood and strewn with broken furniture. The victim’s 10-year-old brother, sleeping in a bedroom, was awakened around the time of the murder by sounds of banging, a girl crying, and a voice saying, "You fucking whore. You fucking bitch.” Earlier that evening, defendant had asked Julie Fields to go and make love in the defendant’s van. Fields had refused, but defendant’s girlfriend Kathy had become angry and asked to be taken home.

Defendant, the last person known to be with the victim when she was still alive, was found unconscious in a field about 1-1/2 hours after the murder, with bloodstains on his clothing and teethmarks on the back of his wrist. Defendant’s fingerprint was lifted from a broken plastic leg in the Fields’ living room, made in or by a substance appearing to be blood. He told police, "I killed her. I killed Kath. Take me out and shoot me; I deserve to die.”

We find that the above circumstantial evidence presented by the prosecution was sufficient to justify a reasonable person in concluding that all elements of rape or attempted rape were established beyond a reasonable doubt. People v Johnson, 83 Mich App 1; 268 NW2d 259 (1978).

We have considered defendant’s other allegations of error and have found them to be without merit.

Affirmed.

       MCL 768.36; MSA 28.1059.

       This issue was raised in another case submitted to the Court at the same time as the present case. In People v Terry, 86 Mich App 64; 272 NW2d 198 (1978), this Court rejected defendant’s argument and held that the Legislature did not intend to repeal or modify the felony murder statute in enacting the criminal sexual conduct act.

       For discussions of the provisions of the criminal sexual conduct act, see Note: Criminal Law — Sexual Offenses — A Critical Analysis of Michigan’s Criminal Sexual Conduct Act, 23 Wn L Rev 203 (1976), and Note: Michigan’s Criminal Sexual Assault Law, 8 U of Mich J of L Reform 217 (1974).

       LaFave & Scott, Criminal Law, § 96, p 708.

       First degree criminal sexual conduct involves "sexual penetration” and is phrased in sex-neutral terms. MCL 750.520(b). "Sexual penetration” is defined as "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body.” MCL 750.520a(h); MSA 28.788(1)(h).

        Moore v Cowan, 560 F2d 1298 (CA 6, 1977), State v Kelly, 111 Ariz 181; 526 P2d 720 (1974), cert den 420 US 935; 95 S Ct 1143; 43 L Ed 2d 411 (1975), State v Ewald, 63 Wis 2d 165; 216 NW2d 213 (1974), State v Fletcher, 341 So 2d 340 (La, 1976), State v Craig, 169 Mont 150; 545 P2d 649 (1976), People v Reilly, 85 Misc 2d 702; 381 NYS2d 732 (1976), Stewart v State, 534 SW2d 875 (Tenn Cr App, 1975), Finley v State, 527 SW2d 553 (Tex Cr App, 1975), People v Medrano, 24 Ill App 3d 429; 321 NE2d 97 (1974), State v Price, 215 Kan 718; 529 P2d 85 (1974), Brooks v State, 24 Md App 334; 330 A2d 670 (1975), People v Gould, 188 Colo 113; 532 P2d 953 (1975).

       We note that females who murder in the perpetration of criminal sexual conduct in the first degree are subject to life imprisonment for the criminal sexual conduct violation and also for second-degree murder. MCL 750.317, 750.520b(2); MSA 28.549, 28.788(2X2).