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

text:
    TOWNSHIP OF ORION v WEBER
    Docket No. 77-1398.
    Submitted February 8, 1978, at Lansing.
    Decided June 5, 1978.
    Leave to appeal applied for.
    Orion Township commenced an action against Everett J. Weber and Geraldine A. Weber to enjoin the defendants from carrying on their sand and gravel business, which they have operated for several years. Defendants’ business is a valid nonconforming use under the zoning law, but the injunction was sought pursuant to a township ordinance regulating the mining of sand and gravel. The Oakland Circuit Court, Robert L. Templin, J., ruled that the ordinance was valid and enjoined defendants from operating their business until they obtained a permit from the township. Defendants appeal. The issues on appeal are whether the standards set forth in the subject ordinance for the issuance of permits constitute an unlawful delegation of legislative power to the township zoning board of appeals, which is authorized to issue the permits, and whether the requirements for an application for a permit are reasonable regulations as to the defendants, who are now authorized to operate under a nonconforming use, or are invalidly confiscatory as to the defendants. Held:

    1. That portion of the ordinance which authorizes the board to grant a permit only if there would be no injury to the public health, safety and welfare is unconstitutional because it affords insufficient guides for the board in exercising its discretion.
    2. A portion of the ordinance which precludes issuance of a permit where it would create an obstacle to the implementation of the township’s zoning ordinance and master plan is an invalid attempt to zone property according to a master plan.
    3. Language in the ordinance allowing the board to impose additional requirements for obtaining a permit based upon "necessity” is improperly legislative, not administrative, in nature.

      References for Points in Headnotes

       82 Am Jur 2d, Zoning and Planning § 60 et seq.

       82 Am Jur 2d, Zoning and Planning §§ 66-68, 178 et seq., 221.

       82 Am Jur 2d, Zoning and Planning §§ 72-74, 288.

       82 Am Jur 2d, Zoning and Planning §§ 242, 288.

       16 Am Jur 2d, Constitutional Law § 181.
    73 Am Jur 2d, Statutes § 383.

       82 Am Jur 2d, Zoning and Planning § 203.

      4. The trial court was clearly in error when it found that soil borings were not required to meet the conditions imposed for applying for a permit where there was uncontroverted testimony that such borings were in fact necessary. Because the borings are necessary and are extremely costly, the application of the ordinance as to the defendants who have a valid nonconforming use is confiscatory.
    Remanded.
    1. Constitutional Law—Ordinances—Public Health, Safety and Welfare—Permits—Local Board’s Discretion.
    A portion of an ordinance regulating the removal of topsoil, subsoil, sand, gravel and other materials which provides for the authorization by a Board of Appeals of a permit to mine sand and gravel only if it will not be injurious to the public health, safety and welfare is unconstitutional because such broad statements afford no sufficient guide for the local board in the exercise of its discretion (Orion Twp Ordinance No. 40, § 2D[1]).
    2. Statutes—Construction—Ordinances—Zoning—Nonconforming Use.
    An ordinance should be construed, if possible, in such a way as to render it valid, not invalid, as conferring administrative, not legislative power and as vesting discretionary, not arbitrary, authority; a reference in a township ordinance regulating the removal of topsoil, subsoil, sand, gravel and other materials to other "applicable” ordinances, standards and regulations is therefore construed to exclude any ordinance, standard or regulation which would operate to defeat a party’s vested right of continuation of a valid nonconforming use of his property (Orion Twp Ordinance No. 40, § 2D[2]).
    3. Zoning—Ordinances—Permits—Interim Zoning—Master Plan.
    A provision of a township ordinance regulating the issuance of permits to mine sand and gravel which precludes issuance of a permit where it would create an obstacle to the implementation of the township’s zoning ordinance and master plan purports to incorporate zoning law into it and thereby creates the possibility of ad hoc interim zoning, which is impermissible where no full-scale rezoning is contemplated; the provision is an invalid attempt to zone property according to a master plan (Orion Twp Ordinance No. 40, § 2D[5]).

      4. Zoning—Ordinances—Nonconforming Use—Master Plan.
    A provision of a township ordinance regulating the mining of sand and gravel is invalid to the extent that it seeks to require compliance with existing zoning despite the existence of a valid nonconforming use and to the extent that it seeks to restrict the use of land in conformity with the township’s master plan (MCL 125.286; MSA 5.2963[16], Orion Twp Ordinance No. 40, § 2D[5]).
    5. Towns—Townships—Ordinances—Permits—Necessity—Legislative Language.
    Language in a township ordinance regulating the mining of sand and gravel which permits the township board of zoning appeals to impose conditions not found in the ordinance for the issuance of permits for such mining is invalid because the only guideline for imposition of additional conditions is "necessity”; such language is legislative and not administrative in nature (Orion Twp Ordinance No. 40, § 2D).
    6. Statutes—Ordinances—Invalid Ordinances—Severability— Saving Clauses.
    An entire ordinance must be declared to be of no effect where a court strikes down parts of the ordinance unless the invalid sections can be severed from the rest of the ordinance; but it need not be declared of no effect in its entirety where it specifically provides a saving clause for sections not invalid.
    7. Towns—Townships—Permits—Appeal and Error—Clear Error —Zoning—Nonconforming Use—Ordinances.
    A trial court’s finding that prohibitively expensive soil borings are not necessary to meet the requirements of a township ordinance for a permit to mine sand and gravel was clearly erroneous where uncontroverted testimony was presented that such borings would be necessary; requiring such expensive borings of a defendant whose sand and gravel operation is an established valid nonconforming use would be confiscatory and the ordinance is invalid as to that defendant (Orion Twp Ordinance No. 40, § 3D).

      Beier, Howlett, McConnell, Googasian & McCann, for plaintiff.

      Milton F. Cooney, for defendants.

      Before: N. J. Kaufman, P. J., and D. E. Holbrook, Jr. and D. F. Walsh, JJ.
   N. J. Kaufman, P. J.

Pursuant to a local ordinance, plaintiff commenced this action to enjoin defendants from carrying on their sand and gravel business located in plaintiff township. At trial, defendants contended that the ordinance was invalid. The trial court ruled that the ordinance was valid and enjoined defendants from carrying on the business until a permit is obtained. A judgment to this effect was entered April 27, 1977. Motions to stay the order were denied by the trial court and this Court. Defendants appeal as of right.

Defendants have operated their gravel business at the present location for over 14 years. The parcel mined by defendants is in excess of 200 acres. The area is surrounded by an airport and farms. Plaintiff concedes that the zoning law gives defendants a vested right to the nonconforming use of the property as a gravel mining operation even though the present industrial zoning of the property would not permit the processing operations. However, plaintiff argues that the present ordinance is regulatory and not a zoning ordinance. It was admitted at trial that defendants have not complied with the ordinance.

The ordinance in question is entitled:

"An ordinance to regulate the removal of TOPSOIL, SUBSOIL, SAND, GRAVEL AND OTHER MATERIALS AND THE MOVING AND FILLING OF LAND.”

It is divided into 13 detailed sections.

For purposes of this appeal, two major questions regarding the ordinance are presented:

(1) Do the standards that the township zoning board of appeals uses to grant or deny permit authorizations constitute an unlawful delegation of legislative power to an administrative body—particularly where a nonconforming use is involved?

(2) Are the performance standards and other requirements for application information reasonable regulation of a nonconforming use; or are they invalidly confiscatory?

As to the first question, the applicable standards are found in § 2D:

"The Board of Appeals shall authorize the issuance of a permit only if it finds that the granting of said permit will (1) not be injurious to the public health, safety and welfare of the Township and its residents, (2) there has been compliance with all the requirements and standards of this Ordinance, and the other applicable Township ordinances, standards and regulations, (3) the proposed operation will not create an unreasonable hazard, annoyance or inconvenience to the owners or occupants of nearby property, (5) and will not create any significant obstacle to the implementation of the plan for Township development as evidenced by the Zoning Ordinance and the Master Plan of the Township. The Board of Appeals may attach such conditions to the granting of the permit as it finds necessary to insure that the intent and purpose of this Ordinance is fulfilled. Any violation of a condition(s) included in the permit shall be construed as a violation of this Ordinance and shall be grounds for revoking the permit.”

We hold that several of the standards listed are invalid, either because the assailed standard is not sufficiently precise or because the assailed standard is legislative rather than administrative in nature.

Examining § 2D(1) first, we note that it provides that:

"The Board of Appeals shall authorize the issuance of a permit only if it finds that the granting of said permit will (1) not be injurious to the public health, safety and welfare of the Township and its residents * * *

The quoted language violates the Supreme Court’s holding in Osius v City of St Clair Shores, 344 Mich 693, 699-700; 75 NW2d 25 (1956), wherein it concluded that ordinances cannot:

"be saved by * * * broad statements as to the public health, safety, and general welfare, since such statements afford no sufficient guide for the board in the exercise of its discretion.”

Therefore, we find that § 2D(1) is unconstitutional on its face. Accord, Milford v People’s Community Hospital Authority, 380 Mich 49; 155 NW2d 835 (1968).

An additional problem arises from § 2D(2):

"[T]here has been compliance with all the requirements and standards of this Ordinance, and the other applicable Township ordinances, standards and regulations,”.

Applied literally, this standard would effectively circumvent defendants’ vested right to the continuation of their mining and gravel business as a nonconforming use. However, it is not necessary to hold this subsection unconstitutional on its face. As noted by the Supreme Court in Dep’t of Natural Resources v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976):

"if possible the statute must be construed in such a way as to 'render it valid, not invalid', as conferring 'administrative, not legislative' power and as vesting 'discretionary, not arbitrary, authority'." (Citation omitted.)

We therefore construe the term "applicable" in § 2D(2) to exclude any ordinance, standard, or regulation which would operate to defeat defendants’ vested right of continuation.

Constitutional questions are also created by § 2D(5):

"[A]nd will not create any significant obstacle to the implementation of the plan for Township development as evidenced by the Zoning Ordinance and the Master Plan of the Township."

We hold § 2D(5) to be an invalid attempt to zone property according to a master plan. On its face, this standard purports to incorporate zoning law into it, and, thus, creates the possibility of ad hoc interim zoning, which is only permissible—where a township has a validly enacted zoning act—if full-scale rezoning is contemplated. Lake Twp v Sytsma, 21 Mich App 210, 214; 175 NW2d 337 (1970). Nothing in the record indicates such an intent. We note, in any event, that any rezoning would not affect defendants’ nonconforming use.

Furthermore, to the extent that plaintiff, through this standard, seeks to require compliance with existing zoning despite the existence of a valid nonconforming use, the standard directly conflicts with MCL 125.286; MSA 5.2963(16).

We also note that to the extent that plaintiff seeks to restrict the use of land in conformity with its master plan, the restriction is invalid. See 2 Rathkopf, The Law of Zoning and Planning (4th ed), § 30.02, p 30-4.

Recalling our citation to DNR v Seaman, supra, we find that this standard cannot be construed for validity. If it is read to incorporate the restrictions on the exercise of power that must be applied to master plans and nonconforming uses, which would eliminate the standard’s invalid aspects, it becomes a meaningless standard.

The most troublesome portion of § 2D, however, is not an enumerated standard but the following language:

"The Board of Appeals may attach such conditions to the granting of the permit as it finds necessary to insure that the intent and purpose of this Ordinance is fulfilled. Any violation of a condition(s) included in the permit shall be construed as a violation of this Ordinance and shall be grounds for revoking the permit.”

It is redundant to read that language as permitting the board to impose conditions found elsewhere in the ordinance. Thus, the language must be read to permit the board to impose additional conditions not found in the ordinance; and, since the only guideline for imposition is "necessity”, the language is inescapably legislative and not administrative in nature. The language is therefore invalid under Osius v City of St Clair Shores, supra.

Where a court strikes down parts of an ordinance, it must declare the entire ordinance to be of no effect unless the invalid sections can be severed from the rest of the ordinance. In this case, § 12 of the ordinance provides:

"This Ordinance and the various parts, sections and clauses thereof are hereby declared to be severable. If any part, sentence, paragraph, section or clause is adjudged unconstitutional or invalid, it is hereby provided the remainder of the Ordinance shall not be affected thereby.”

Thus, outright reversal is not mandated, and we pass to the second question presented.

The question of regulation of a nonconforming use is not an easy one to resolve because of the competing interests involved. On the one hand, the general health, safety, and welfare of the general populace would seem to demand that a nonconforming use be made to keep pace with existing technology, despite the fact that changes of that sort might result in financial outlay which might have the effect of diminishing the value of the use to some degree. On the other hand, because a nonconforming use represents a statutorily vested right, MCL 125.286; MSA 5.2963(16), regulation cannot be so onerous as to be confiscatory in nature.

Michigan courts have recognized this tension. In Adams v Kalamazoo Ice & Fuel Co, 245 Mich 261; 222 NW 86 (1928), plaintiffs brought suit against defendant company to enjoin the operation of the business in a residential district. The ice station building was built prior to the enactment of the zoning ordinance; thus, it was a nonconforming use.

Plaintiffs argued that the nonconforming use was, in fact, a nuisance per accidens. The Supreme Court noted:

"If the ice station is a nuisance by reason of method of its operation, then regulation, if adequate, and not abatement, is the remedy.” 245 Mich at 264.

The Supreme Court explained:

"While the court of equity has power to abate nuisances in protection of property rights, and to conserve the enjoyment, health, comfort, and welfare of individuals, it moves with caution, deciding each case upon its particular facts, and accords protection against injury only in cases where an action at law would afford no adequate redress.” 245 Mich at 265.

Almost a decade later, the Supreme Court extended its rationale to a zoning case not involving a nuisance. In Wolverine Sign Works v City of Bloomfield Hills, 279 Mich 205; 271 NW 823 (1937), plaintiff asked for a declaratory judgment that a zoning ordinance relating to the maintenance of existing billboards be declared unconstitutional. The Supreme Court noted:

"We do not need to set forth the several ordinances. It is sufficient to say that in effect they prohibited maintenance of the billboards without a permit and, as demonstrated by the city officials, no permit will be granted and, therefore, their continuance subjects the owner thereof to the penal provisions for violation, destroys the lease use, a property right, and incidentally takes from the owner of the land the right of such rental.” 279 Mich at 207.

Significantly to this case, the Supreme Court then held:

"The city may establish zones and prohibit the erection of billboards therein and may, to promote public health, safety and general welfare, within reasonable considerations, regulate the maintenance of billboards but may not arbitrarily strike down the maintenance of erected billboards or vest such power of arbitrary action in municipal officers.” 279 Mich at 208.

Declining to limit Wolverine Sign Works to its facts, the Supreme Court extended its holding to trailer parks in Richards v City of Pontiac, 305 Mich 666; 9 NW2d 885 (1943).

The Supreme Court has also recognized the need to distinguish between prior nonconforming uses and other uses in determining the validity of regulating provisions contained in a zoning ordinance. In Detroit Edison Co v City of Wixom, 382 Mich 673, 690; 172 NW2d 382 (1969), the assailed ordinance was held invalid as applied to plaintiff because the "ordinance operates retroactively upon plaintiffs vested property rights and not in futuro as required by our previous decisions”.

It is with that legal background that we turn to the ordinance in question in this case. An examination of the required application information and performance standards discloses only one instance where regulation would be so unreasonable as to be confiscatory in nature.

According to § 3D, an applicant must submit an application including the following information:

"An estimate by a civil engineer registered as a professional engineer in the State of Michigan or land surveyor registered as a professional surveyor in the State of Michigan as to the cubic yards of material to be removed and/or placed, and a detailed statement as to how the filling and/or removal is to be accomplished.”

Testifying for defendants at trial, Mr. Thomas Handyside, a consulting civil engineer, testified:

"[I]n order to make a professional judgment of it, it would have to have quite a bit of data relative to the soil types and it would involve a significant amount of soil borings.”

Questioned by the trial court as to total cost, Mr. Handyside replied:

"I would say it’s going to be in excess of $100,000. Probably approaching $150,000 or $200,000 to do the detailed work that would be necessary for all those borings.”

Plaintiff did not rebut Mr. Handyside’s testimony. Nonetheless, the trial court ruled:

"Defendants have maintained that the ordinance is unconstitutional, that it is unreasonable, and capricious, particularly in regard to Sections 3D and E which they maintain requires that an estimate by a civil engineer be made which would entail a large boring operation, a so-called grid pattern, as testified to by Defendants’ witness Mr. Handyside, a civil engineer, which would cost at least a hundred thousand dollars.
"Well, the Court doesn’t read Section D of Section 3 to require such an expensive estimate being made on a yearly basis. We are, after all, talking about an annual permit, the requirements for an annual permit.”

We would not dispute the trial court’s finding if there was testimony that a civil engineer could make the required estimate without costly borings or other prohibitively expensive means. However, since Mr. Handyside’s testimony of how a professional civil engineer would fulfill the requirements of § 3D was uncontroverted, we conclude that the trial court’s finding that borings are not necessary is "clearly erroneous” under GCR 1963, 517.1. We agree with the trial court’s feeling that it would be unreasonable to require expensive soil borings on an annual basis. We note that as to a nonconforming use even one set of borings would be unreasonable. But if prospective applicants cannot find a civil engineer who will make the estimate without borings, the trial court’s refusal to invalidate § 3D, in effect, prevents any applicant from getting a permit unless they get what the trial court stated that they did not need.

Therefore, we hold that, as to defendants, § 3D is confiscatory regarding a prior nonconforming use, and accordingly invalid.

Having so decided, we remand this case to the trial court with instructions that defendants be allowed to apply for a permit. The board of appeals shall apply all valid (as to defendants) standards contained in § 2D. Except for § 3D, defendants must file all required application information. The injunction will be dissolved upon a showing that defendants have complied with the conditions precedent to the issuance of a permit.

Because of the disposition of this case, defendants’ remaining issue on appeal need not be addressed.

Remanded with instructions. We do not retain jurisdiction.


source: Caselaw Access Project

author: Beasley, J. M. J. Kelly, P. J.

license: Public Domain

text:
    PEOPLE v DALTON
    Docket No. 77-1546.
    Submitted April 4, 1978, at Detroit.
    Decided June 5, 1978.
    Melvin Dalton was convicted in the Recorder’s Court for the City of Detroit, Susan D. Borman, J., of kidnapping, armed robbery, and two counts of criminal sexual conduct in the first degree. Defendant appeals claiming error in the denial of his motions for a mistrial, that he received multiple punishment for a single criminal act, and that the criminal sexual conduct statute is unconstitutional. Held:

    The criminal sexual conduct statute is constitutional. Defendant’s mistrial motion was properly denied when he alleged prejudice as a result of a juror being excused during the trial after becoming emotionally upset from the proceedings since he failed to allege specific facts or circumstances warranting a holding that the remaining jurors were prejudiced against him as a result of the incident. Defendant’s other mistrial motion was also properly denied when he alleged prejudice resulting from some members of the jury being exposed to media coverage of the trail where none of the exposed jurors communicated what they had heard to other jurors and those who were exposed asserted that hearing the reports had not affected their ability to remain impartial. Defendant did not receive impermissible multiple punishment when he was convicted on two counts of criminal sexual conduct where the facts show the defendant and others kidnapped and held the complainant captive for twelve hours during which time defendant raped her with the assistance of aiders and abettors or by force and that he also aided and abetted another in engaging in criminal sexual conduct in the first degree with the complainant.

      References for Points in Headnotes

       76 Am Jur 2d, Trial § 1080.

       75 Am Jur 2d, Trial §§ 980-982.
    Interrogation or poll of jurors, during criminal trial, as to whether they have read newspaper articles pertaining to alleged crime or the trial. 15 ALR2d 1152.
    Juror’s reading of newspaper account of trial in criminal case during its progress as ground for mistrial, new trial, or reversal. 31 ALR2d 417.

       73 Am Jur 2d, Statutes §§ 204 et seq., 219.

       65 Am Jur 2d, Rape §§ 41, 106.

       73 Am Jur 2d, Statutes § 299 et seq.

      Affirmed.
    M. J. Kelly, P. J., concurring in part, dissenting in part, would hold that the Legislature intended that the various aggravating circumstances defined in the multi-section comprehensive statute regarding criminal sexual conduct' in the first degree be alternative ways of proving criminal sexual conduct in the first degree, and it did not intend that proof of one or more of these aggravating circumstances could transform one criminal sexual act into many.
    Opinion of the Court
    1. Criminal Law—Motions—Mistrials—Prejudice—Jury—Excusing of Jurors—Appeal and Error.
    A defendant’s motion for a mistrial, alleging that prejudice resulted when a juror had to be excused during the trial after becoming emotionally upset by the proceedings, was properly denied in a criminal trial where the defendant failed to allege specific facts or circumstances warranting a holding that the remaining jurors were prejudiced against the defendant as a result of the incident.
    2. Criminal Law—Motions—Mistrial—Prejudice—Jury—News Accounts—Appeal and Error—Impartiality.
    A defendant’s motion for a mistrial, alleging that the exposure of some members of the jury to media coverage of his trial resulted in prejudice, was properly denied in a criminal trial where none of the exposed jurors communicated what they had heard to other jurors and all the exposed jurors asserted that hearing the reports had not affected their ability to remain impartial.
    3. Constitutional Law—Criminal Law—Statutes—Criminal Sexual Conduct.
    The criminal sexual conduct statute is not unconstitutionally overbroad (MCL 750.520a et seq.; MSA 28.788[1] et seq.).

    4. Criminal Law—Rape—Criminal Sexual Conduct—Multiple Counts—Kidnapping—Aiders and Abettors—Multiple Punishment. '
    A defendant was not charged or convicted of several counts of criminal sexual conduct in the first degree based upon only one act of intercourse where he was convicted of two counts of criminal sexual .conduct in the first degree and the facts show that the defendant and others kidnapped the complainant and held her captive for twelve hours during which time defendant raped the complainant with the assistance of aiders and abettors or by force, and also that the defendant aided and abetted another in engaging in criminal sexual conduct in the first degree with the complainant; a separate sentence for each conviction under such circumstances does not amount to impermissible multiple punishment for a single criminal act.
    Partial Dissent, Partial Concurrence by M. J. Kelly, P. J.
    5. Statutes—Criminal Law—Rape—Criminal Sexual Conduct— Aggravating Circumstances—Convictions—Single Punishment.

      The Legislature intended that the various aggravating circumstances defined in the multi-sectioned comprehensive statute regarding criminal sexual conduct in the first degree be alternative ways of proving criminal sexual conduct in the first degree, and it did not intend that proof of one or more of these aggravating circumstances could transform one criminal sexual act into many, and where there are two convictions for the same act only one conviction may stand (MCL 750.620b; MSA 28.788[2]).

    6. Criminal Law—Statutes—Rule of Lenity—Legislative Intent —Presumptions—Single Transaction—Multiple Offenses.

      The rule of lenity provides that where the legislative intent in a criminal statute is not explicit there is a presumption against turning a single transaction into multiple offenses.

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

      Robert E. Slameka, for defendant.
    Before: M. J. Kelly, P. J., and D. E. Holbrook, Jr. and Beasley, JJ.
   Beasley, J.

Defendant was convicted by a jury of kidnapping, armed robbery and two counts of criminal sexual conduct in the first degree. The convictions stemmed from an incident in which a Windsor woman whose car had become disabled on a Detroit freeway was abducted by a group of men and taken to an apartment where she was held against her will for over 12 hours and was raped repeatedly. A motorist who had been assisting the woman with her car was robbed by the same men and locked in the trunk of his car. Following sentencing to four life terms, defendant appeals as of right.

The first claim of error raised by defendant is that his motion for a mistrial was improperly denied when a juror had to be excused during the trial after becoming emotionally upset by the proceedings. The claim is without merit. Defendant has failed to allege either specific facts or circumstances warranting a holding that the remaining jurors were prejudiced against defendant as a result of the incident. We decline to hold that there was a clear abuse of discretion by the trial court in denying defendant’s motion for a mistrial.

Defendant next contends that exposure of some members of the jury to media coverage of the trial resulted in prejudice to defendant. The record indicates three jurors admitted they had heard radio reports about the trial. Two heard reports regarding the general course of the trial, and the third said he heard a report that four other men involved in the incident had been convicted. None of the three had communicated what they had heard to other jurors, and all three asserted that hearing the reports had not affected their ability to remain impartial. Absent a stronger showing of prejudice, defendant is not entitled to relief. There was no abuse of discretion by the trial court in denying defendant’s motion for a mistrial on this ground.

It is next argued by defendant that the criminal sexual conduct act is unconstitutionally over-broad. Some authorities have expressed the view that a statute may be overbroad if, by its terms, it covers innocent as well as criminal or proscribed conduct. The criminal sexual conduct act suffers no such infirmity. Defendant contends further that the statute must fall because it "allows the prosecution to go to the jury with several charges of Sexual Activity when in fact only one act of intercourse may have occured [sic]”. Neither of the cases cited by defendant support that proposition.

Nor do we find under the facts of the within case that defendant was charged or convicted of several counts of sexual misconduct based on "only one act of intercourse”. Complainant was kidnapped and held captive for. over 12 hours. During that time she was raped numerous times by at least four or five people. Defendant was identified as one of the persons who had raped her and who was present during some of the other incidents of rape during her period of captivity. Defendant was charged with raping complainant with the assistance of aiders and abettors or by force. He was also charged with aiding and abetting one Joseph Evans in engaging in criminal sexual conduct in the first degree, i.e., forced penetration during the perpetration of a felony-kidnapping. Defendant was also convicted on this charge. The acts of Joseph Evans represent a separate criminal transaction from the penetration committed by defendant. We decline to hold that a separate sentence for each conviction under such circumstances would amount to impermissible multiple punishment for a single criminal act.

Defendant’s other claims of error are equally without merit.

Affirmed.

D. E. Holbrook, Jr., J., concurred.

M. J. Kelly, P. J.

(concurring in part, dissenting in part). I dissent as to the affirmance of the conviction on the second count of criminal sexual conduct in the first degree. There is a division on our Court between the position adopted in People v Robinson, 80 Mich App 559; 264 NW2d 58 (1978), People v Secreto, 81 Mich App 1; 264 NW2d 99 (1978), as against Judge Beasley’s view in People v Nelson, 79 Mich App 303; 261 NW2d 299 (1977). I subscribe to the reasoning in People v Robinson, supra, that the legislative intent is not so clear as to permit multiple punishments for a single act of criminal sexual penetration.

Although defendant could have properly been charged and convicted as an aider and abettor to his companions in addition to his conviction as principal for a separate act, because of the charge given, his conviction on the second count must be reversed.

I concur as to affirmance on the other three counts.

       MCL 750.349; MSA 28.581.

       MCL 750.529; MSA 28.797.

       MCL 750.520b; MSA 28.788(2).

        People v Jenkins, 10 Mich App 257; 159 NW2d 225 (1968).

        People v Diamond, 231 Mich 484, 487; 204 NW 105 (1925).

        People v Parker, 76 Mich App 432; 257 NW2d 109 (1977).

       MCL 750.520a et seq; MSA 28.788(1) et seq.

        People v Penn, 70 Mich App 638; 247 NW2d 575 (1976).

       Defendant cited People v White, 390 Mich 245; 212 NW2d 222 (1973), in which it was held that a defendant may not be charged on two separate occasions and put through separate trials for criminal acts that arise out of one transaction. He also cited People v Willie Johnson, 75 Mich App 221; 255 NW2d 207 (1977), which held contrary to defendant’s position that presentation to the jury of several counts as alternatives under the criminal sexual conduct statute was not improper. Even if we assume the Supreme Court adopts the so-called lenity rule of People v Willie Johnson rather than the exposition of legislative intention articulated in People v Nelson, 79 Mich App 303; 261 NW2d 299 (1977), there would not appear to be error here.


author: Bashara, J. Beasley, P. J.

text:
    PEOPLE v HEATWOLE
    Docket No. 77-1565.
    Submitted February 22, 1978, at Detroit.
    Decided June 5, 1978.
    Leave to appeal applied for.
    Harold R. Heatwole was convicted of armed robbery in Wayne Circuit Court, Joseph A. Moynihan, Jr., J. Defendant had filed written requests for jury instructions asking the trial court to give the standard instruction on alibi. These requests were denied. On appeal, defendant claims error because of the failure to instruct the jury on alibi. Held:

      A defendant’s specific testimony regarding his whereabouts at the time a crime was committed is alibi testimony just as if another witness had given the testimony, and the defendant is entitled to an instruction on his theory of the case where his testimony and argument to the jury was an attempt to show that he was elsewhere when the crime occurred.
    Reversed.
    Beasley, P. J., dissents and would not set aside defendant’s conviction for failure to give a requested alibi instruction because the instructions given clearly explained the prosecutor’s burden of proof as to every element of the crime and his duty to identify defendant as the person who committed the crime beyond a reasonable doubt, and that the defendant was presumed innocent; the entire instructions lead to the conclusion that defendant had a fair trial.
    Opinion of the Court
    1. Criminal Law—Alibi—Alibi Defense—Alibi Testimony—Instructions to Jury.
    A defendant’s general denial of the charges against him does not constitute an alibi defense, but if a defendant gives specific testimony regarding his whereabouts at the time in question, it is alibi testimony just as if another witness had given the testimony; a defendant is entitled to an instruction on his theory of the case where his testimony and argument to the jury clearly showed that he was elsewhere when the crime occurred.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence § 157.
    30 Am Jur 2d, Evidence § 1178.
    75 Am Jur 2d, Trial § 643.

       75 Am Jur 2d, Trial § 734.

      Dissent by Beasley, P. J.
    2. Criminal Law—Alibi—Instructions to Jury—Fair Trial—Appeal and Error.

      A guilty verdict should not be set aside for failure to give a requested alibi instruction where the jury was instructed that the prosecutor had the burden of proof to prove every element of the crime beyond a reasonable doubt, including the duty to identify defendant as the person who committed the crime, that the defendant was presumed to be innocent, and where a reading of the entire jury instruction leads to the conclusion that defendant had a fair trial.

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

      Harvey, Kruse & Westen, P. C. (by Paul Hynes), for defendant on appeal.
    Before: Beasley, P. J., and Bashara and D. C. Riley, JJ.
   Bashara, J.

The majority adopts the statement of facts of the dissent. I hold for reversal in the full knowledge that Judge Beasley’s dissent is entirely logical and eminently sound.

However, unlike the dissent, we cannot differentiate the facts of the instant case from People v McGinnis, 402 Mich 343; 262 NW2d 669 (1978). Frankly, I respectfully question the rationale of McGinnis. Nonetheless, I feel bound to observe the command of our state’s highest court.

Reversed and remanded for a new trial.

D. C. Riley, J., concurs in the result reached by Judge Bashara.

Beasley, P. J.

(dissenting). I respectfully dissent. Defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797. Following sentence to a term of not less than 7-1/2 nor more than 15 years in prison, he appeals as of right.

On appeal, defendant raises one issue, claiming error in not instructing the jury regarding alibi.

The record indicates that no notice of alibi defense was filed on behalf of defendant. However, on the day set for trial, counsel for defendant advised the court that defendant instructed him to request an adjournment for the purpose of seeking alibi witnesses. The motion was denied.

Defendant filed written requests for jury instructions, asking the trial court to give "the standard jury instruction on alibi”. In addition, defendant made a specific request for an instruction regarding identification.

The only witness produced for the defense was the defendant himself. The trial court gave the identification instruction in full as requested, but denied defendant’s request for an alibi instruction.

The trial court’s instruction was meticulous and thorough and must be considered in its entirety. The relevant portions, for purposes of this appeal, are as follows:

"One of the questions in this case, is the identification of the defendant who committed the crime. The People have the burden of proving beyond a reasonable doubt not only that the crime was committed but that the defendant was the person who committed it.
"In considering whether the People have proved, beyond a reasonable doubt, that the defendant is the person who committed the offense, you should consider the following: The witness’s opportunity to observe the criminal act and the person who committed it, including the length of time available for observation; whether the witness had occasion to see or know the defendant before the incident; the distance between the various parties; the light or lack of the light at the time; the witness’s state of mind at the time of the offense; and other circumstances affecting the witness’s opportunity to observe the person committing the offense. The identification made by the witness after the offense must be the product of their own, the witnesses’s own memories. You may take into consideration the subsequent identification, the circumstances surrounding the identification, the certainty or lack of certainty present by the witnesses, the state of mind that the witness had at the time, and any other circumstances bearing on the reliability of the identification.
"You may also consider the length of time that elapsed between the occurrence of the crime and the time the witness saw the defendant. That has a fact bearing on the reliability of the identification.
"You may take into account any occasion with which the witness failed to make an identification of a defendant or made an identification that was inconsistent with his or her identification at trial, and any other circumstances that you find—which you find affect the identification.
"Now, here in this case, the defendant has a right to take the witness stand and become a witness in his own behalf.
"It is your duty to consider his testimony by the same standards as you would consider the testimony of any other witness who has appeared on this stand. You, as I have said, are the sole judges of the facts in this case and you must determine which witnesses you will believe and what weight you will give to their testimony.”
"The defendant’s theory of the case is one of—he says that he was not there, did not rob the parties and that this is a case of mistaken identity.”

For decades, the oft-given and nearly always approved standard jury instructions regarding alibi were the five different, separate forms of alibi instruction contained in Gillespie. These five separate forms of alibi instruction afforded to the trial judge discretion as to which form appeared appropriate under the facts and circumstances of a particular case. In recent years, certain of the Gillespie alibi instructions have come under severe criticism in the Supreme Court, culminating in People v McCoy, 392 Mich 231; 220 NW2d 456 (1974). More recently, in People v McGinnis, 402 Mich 343; 262 NW2d 669 (1978), the Supreme Court took a further step toward tilting the balance to the defense with respect to instructions regarding alibi by finding that an alibi instruction was in order where a defendant testified that he did not commit the crime and was not there, even though there was no other evidence of so-called alibi nor even a notice of alibi. The proposed Standard Michigan Criminal Jury Instructions set forth an alibi instruction as follows:

"(1) Evidence has been introduced that the defendant was at another place at the time of the crime charged here and, therefore, that he could not have committed that crime.
"(2) The prosecution has the duty of proving beyond a reasonable doubt that the defendant committed the offense charged. The defendant has no burden of proving that he was someplace else.
"(3) You, alone, are the determiners of the facts in this case, and you are to make that determination from all of the facts and circumstances shown by the evidence.
"(4) If you have a reasonable doubt whether the defendant was present at the time and place of the crime charged, then you must find him not guilty.” CJI 7:2:01.

Presumably, when defense counsel requested a standard instruction regarding alibi, he had reference to the above quoted proposed Standard Michigan Criminal Jury Instructions. Thus, in this case, the issue boils down to whether or not it was error for the trial judge not to give the defense tilted portion of the alibi instruction which reads:

"Further, if the evidence establishes that the defendant was at another place and could not have committed the crime, this is a perfect defense and you must find the defendant not guilty.” (Emphasis added.) CJI 7:2:02.

My reading of the trial court’s instructions to the jury indicates that in no way was any question cast upon the prosecutor’s burden to prove every element of the crime with which defendant was charged beyond a reasonable doubt, including the alleged fact that defendant was present when the armed robbery occurred. Thus, decision in this case hinges squarely on McGinnis.

In both McGinnis and the within case, the defendant requested an alibi instruction and argued alibi to the jury. In McGinnis, the prosecutor had no objection to giving an alibi instruction; in the within case, the prosecutor objected to an alibi instruction. In McGinnis, the defense named an alleged alibi witness, but she was not called; in the within case, on the day of trial, the defendant required his attorney to seek an adjournment to seek to find unnamed, unlocated, alleged alibi witnesses. In McGinnis, counsel for defendant objected to the failure of the trial judge to give an alibi instruction; in the within case, defense counsel did not object to the lack of an alibi instruction, saying:

"MR. SUROWIEC: My comments, your Honor, were, with the exception of my requested instruction on identification, I was satisfied.”

In McGinnis, the trial court did not instruct as to defendant’s theory of defense; in the within case, the trial court instructed regarding defendant’s theory of defense as follows:

"The defendant’s theory of the case is one of—he says that he was not there, did not rob the parties and that this is a case of mistaken identity.”

Thus, the narrow issue here is, under the circumstances of this case, does the McGinnis rule require setting aside the jury verdict and remanding for a new trial.

I do not believe such a result is required; my reading of the entire jury instruction leads me to conclude that defendant had a fair trial.

As distinguished from McGinnis, this instruction repeated the requirement that the prosecutor had the burden of proof to prove every element of the crime beyond a reasonable doubt, that defendant was presumed to be innocent, and that the prosecutor had the duty to identify the defendant as the person who committed the robbery beyond a reasonable doubt. .

I would affirm defendant’s conviction.

        Lake Oakland Heights Park Ass’n v Waterford Twp, 6 Mich App 29, 34; 148 NW2d 248 (1967):
      " * * * Instructions to a jury must be considered as a whole, and ample authority supports the proposition that an instruction which contains objectionable portions does not constitute reversible error, so long as it is adequate as a whole.”

        King v Daly, 2 Mich App 120, 126; 138 NW2d 548 (1965):
      "The rule that appellate courts view a trial court’s instructions as a whole in determining their adequacy is a basic concept.”

        Bauman v Grand Trunk Western R Co, 18 Mich App 450, 453; 171 NW2d 468 (1969):
      "We have reviewed the full charge given by the trial judge, and taking it as a whole it adequately states the law applicable to this litigation. Select portions of the jury’s charge which are extracted from the entire charge, or removed from context, should not be subject to scrutiny in a vacuum.”
      In Huffman v First Baptist Church of Flushing, 355 Mich 437, 446; 94 NW2d 869 (1959), Justice John D. Voelker, speaking from the vantage point of long experience as a trial lawyer and with sensitivity to the way it is on the trial bench, laid it out in the following language:
      "We are so often compelled to repeat this elementary proposition that we are moved to observe that it is probable that few trial judges, however experienced or learned, if given more time for meditation and research, would again give precisely the same jury instructions that they actually gave. Upon further reflection their instructions would doubtless be less halting and redundant, infinitely clearer and more cogent and more on target—much like the compelling jury arguments most lawyers make to their bedroom ceilings the night after the trial is over. It follows that the job of an appellate court in appraising jury instructions (usually given by the busy trial judge immediately following the tug and heat of the trial) is not to determine whether we would select his instructions as models of literary excellence and pearls of legal wisdom were we editing a form book on the subject; rather our role is mercifully more limited and our test less severe, namely: Did the instructions as given adequately inform the jury on the applicable law reflecting and reflected by the various evidentiary claims in the particular case? In other words, in the idiom of the day, we simply ask ourselves: Were the instructions understandable and did they give both sides a 'fair shake’?”
      In People v Dye, 356 Mich 271, 279; 96 NW2d 788 (1959), Justice Voelker made it clear that the rule applies equally to criminal cases, saying:
      " * * * Jury instructions in a criminal case, however, as well as in civil cases, must be read in their entirety. So tested we find these instructions (which were carefully prepared with the cooperation of counsel on both sides and read to the jury), were quite adequate to the comparatively simple issues in the case.”
      More recent authority may be found in the following cases:

        People v Parsons, 59 Mich App 79, 83; 228 NW2d 852 (1975), People v Benevides, 71 Mich App 168, 175-176; 247 NW2d 341 (1976), People v Johnson (On Rehearing), 71 Mich App 602, 605; 248 NW2d 633 (1976).

       2 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 906, pp 1211-1213.

       This quoted proposed standard jury instruction is an artfully drawn, defense oriented, comment on the evidence. A petit jury hearing that instruction is likely to come away believing the trial judge is trying to tell them something; namely, that the "perfect defense” of alibi deserves their special consideration.


author: Bronson, J.

text:
    HUGGINS v RAHFELDT
    Docket No. 77-2061.
    Submitted March 8, 1978, at Detroit.
    Decided June 5, 1978.
    Sandra D. Huggins commenced an action against Daniel Rahfeldt claiming that the defendant was the father of her child born out of wedlock. Judgment entered after a finding that the defendant was the father of the child and the defendant was ordered to pay child support, Ingham Circuit Court, Jack W. Warren, J. Defendant appeals, claiming that the trial court applied the incorrect standard of proof and that the correct standard of proof in a paternity action is proof beyond a reasonable doubt. Held:

    The trial court applied the appropriate standard for a paternity action, proof by a preponderance of the evidence.
    Affirmed.
    Bastards—Paternity Proceedings—Standard of Proof—Preponderance of Evidence.
    The standard of proof in a paternity action is proof by a preponderance of the evidence.
    Reference for Points in Headnote
    10 Am Jur 2d, Bastards §§ 19, 20.

      John Brattin, for plaintiff.

      McGinty, Rosewarne, Halverson, Brown & Jakubiak, P. C. (by Thomas M. Hitch), for defendant.
    Before: R. B. Burns, P. J., and Bronson and D. F. Walsh, JJ.
   Bronson, J.

Defendant appeals an adverse judgment in a paternity action. The sole issue on appeal concerns the degree of proof necessary to prevail in such an action. The trial court held that proof by a preponderance of the evidence was the proper standard and that plaintiff had met that standard. Defendant appeals of right, contending that the correct standard of proof in a paternity action is proof beyond a reasonable doubt.

An early Supreme Court case, Semon v People, 42 Mich 141; 3 NW 304 (1879), squarely held that the degree of proof necessary to prevail in a paternity action is proof by a preponderance of the evidence. The Court reasoned that paternity actions were not criminal in nature, but were "special” actions entailing only civil consequences.

This result has been followed in later cases, although it has never been specifically addressed. In Harley v Ionia Circuit Judge, 140 Mich 642; 104 NW 21 (1905), Semon was approvingly cited for the proposition that bastardy proceedings are quasi-criminal. In People v Finks, 343 Mich 304, 309; 72 NW2d 250 (1955), the Court approved a jury instruction which stated that the standard was a preponderance of the evidence, although that aspect of the instruction was not in issue. The Court of Appeals has affirmed verdicts for plaintiffs in paternity actions where there was conflicting evidence of paternity. See Champlin v Manke, 33 Mich App 318; 189 NW2d 839 (1971), Houfek v Shafer, 7 Mich App 161; 151 NW2d 385 (1967). Justice Coleman’s dissent in Artibee v Cheboygan Circuit Judge, 397 Mich 54; 243 NW2d 248 (1976), also stated that the standard of proof was a preponderance of the evidence.

Defendant argues that the Semon line of authority has been implicitly overruled by recent cases holding that some criminal procedural protections apply to paternity áctions. In particular, defendant relies on Artibee v Cheboygan Circuit Judge, supra, which held that due process requires that a defendant in a paternity proceeding be afforded a right to counsel.

Little is gained in analyzing paternity procedures by labeling those proceedings as "civil” or "criminal” and reaching a certain result based on which label is applied. A long line of cases has recognized that paternity actions are neither purely civil nor purely criminal, but sui generis. See Semon v People, supra.

In Artibee, the Court held that paternity proceedings were sufficiently complex and of sufficient consequence to a defendant to require that a defendant be afforded counsel in the interest of fundamental fairness. Although Artibee may be a harbinger of future Supreme Court decisions, it did not extend the full panoply of criminal procedural protections to paternity defendants but was limited solely to the right to counsel. We hold that Semon v People, supra, was not overruled by Artibee.

Changing the burden of proof in a paternity action also entails different considerations from extending a right to counsel to paternity defendants. Because of the nature of the paternity action, the evidence is generally conflicting; most actions become credibility contests. As the trial judge in the case at bar noted, few plaintiffs could prevail if they were required to prove paternity beyond a reasonable doubt. This would undermine the basic purpose of the paternity act: to provide support for children born out of wedlock.

We find valid the Supreme Court precedent holding that the standard of proof in a paternity action is proof by a preponderance of the evidence. As we are not convinced that the Supreme Court would overrule Semon v People, supra, if it were to decide that issue today, we are bound to follow it. Cf. Burton Drywall, Inc v Kaufman, 69 Mich App 85; 244 NW2d 367 (1976). We hold that the trial court applied the correct standard of proof.

Affirmed. Costs to appellee.

       MCL 722.711 et seq.; MSA 25.491 et seq.

       The trial court also held that plaintiff had not met the beyond a reasonable doubt standard.

       The issue in Finks was the propriety of a jury instruction referring to the state’s interest in the case on behalf of an illegitimate child "likely to become a public charge”. The Court stated:
      "In the present case we adopt the statement of the Oklahoma supreme court—we cannot believe that the jury found against an innocent man to save the taxpayers from supporting the child, because when we read the entire instruction to the jury we come to but 1 conclusion, namely: That the trial court emphatically instructed the jury that they must not find the defendant to be the father of the child unless they were satisfied by a preponderance of the evidence that he was the father.” People v Finks, supra, at 312.

       See, e.g., People v McFadden, 347 Mich 357; 79 NW2d 869 (1956) (notice of alibi required), People v Stoeckl, 347 Mich 1; 78 NW2d 640 (1956) (comment on defendant’s failure to testify held reversible error), McDaniel v Jackson, 78 Mich App 218; 259 NW2d 563 (1977) (double jeopardy may apply to paternity action). But see Romain v Peters, 9 Mich App 60; 155 NW2d 700 (1967) (unanimous jury verdict not required in paternity action).

       Const 1963, art 1, § 17.

        Reversed on other grounds, 402 Mich 366; 263 NW2d 249 (1978).


author: Bronson, P. J.

text:
    PEOPLE v ANDERSON
    Docket No. 77-2195.
    Submitted January 10, 1978, at Lansing.
    Decided June 5, 1978.
    Leave to appeal applied for.
    Danny H. Anderson was charged with assaulting a police officer and breaking jail "or attempt to break or escape” from jail. Both charges arose out of an incident in which the defendant, while in the Jackson County Jail, left his cell with a turnkey to make a phone call. While out of his cell defendant hit the officer, grabbed his keys and ran out of the area. Defendant was captured in an area in which he was not authorized to be. The defendant’s motion to quash the count of breaking jail was granted after which the defendant pled guilty to the count of assaulting a police officer, Jackson Circuit Court, Russell E. Noble, J. The people appeal. Held:

    The trial court improperly quashed the count. The defendant may be tried for both of the offenses charged without there being any violation of the guarantees against double jeopardy, although to convict the defendant of both charges would constitute unconstitutional multiple punishment for the same offense because, in this instance, the trier of fact must necessarily find the defendant guilty of the assault on the police officer in order to convict him of jail break with violence.
    Reversed and remanded for further proceedings.
    1. Criminal Law—Jail Break—Attempts—Lesser Included Offenses.
    Attempted jail break through the use of violence is necessarily included within the completed offense.
    2. Criminal Law—Information—Quashing Information—Duplicity—Statutes.
    An information may not be quashed for duplicity or uncertainty (MCL 767.2, 767.75; MSA 28.942, 28.1015).
    References for Points in Headnotes

       27 Am Jur 2d, Escape, Prison Breaking and Rescue §§ 4, 6.

       41 Am Jur 2d, Indictments and Informations § 292.

       27 Am Jur 2d, Escape, Prison Breaking, and Rescue § 1.
    Escape or prison breach as affected by means employed. 96 ALR2d 520.

       21 Am Jur 2d, Criminal Law § 189.

      3. Criminal Law—Jail Break—Escape—Evidence—Statutes.
    It is not necessary to establish that a defendant actually effected an escape to have sufficient evidence to support a charge of jail breaking through the use of violence; jail break and escape are not synonymous (MCL 750.197c; MSA 28.394[3]).
    4. Constitutional Law—Criminal Law—Double Jeopardy—Necessarily Included Lesser Offenses.
    A defendant may not be convicted of two crimes where, on the facts of the particular case, the trier of fact must necessarily find him guilty of one in order to find him guilty of the other.
    5. Constitutional Law—Criminal Law—Double Jeopardy—Separate Offenses—Lesser Included Offenses.
    A defendant may be charged and tried for each act that constitutes a separate crime; however, when tried for an act which includes lesser offenses, if the jury finds guilt of the greater, the defendant may not also be convicted separately of the lesser included offense.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Assistant Prosecuting Attorney, for the people.

      Kim Robert Fawcett, Assistant State Appellate Defender, and Nora Pasman, Research Attorney, for defendant on appeal.
    Before: Bronson, P. J., and R. B. Burns and R. E. A. Boyle, JJ.

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

   Bronson, P. J.

Defendant was charged in a two-count information. Count I charged defendant with assaulting a police officer, MCL 750.479; MSA 28.747. Count II charged defendant with breaking jail "or attempt to break or escape,” MCL 750.197c; MSA 28.394(3).

These charges arose out of an incident which occurred at Jackson County Jail. Testimony at the preliminary examination indicated that defendant left his cell with a turnkey to make a phone call. On the way back to the cell, the two became involved in a scuffle; defendant hit the officer, grabbed his keys and ran out of the area. Defendant was later spotted by another officer. When defendant turned and ran down a stairway leading to a basement, an area in which he was not authorized to be, the officer shot defendant, wounding and capturing him.

Defendant was bound over on both counts.

Defense counsel filed a motion to quash Count II based on two grounds: (1) Count II charged, in addition to jail break, "attempt to break or escape” which is not within the language of MCL 750.197c; MSA 28.394(3), and (2) there was insufficient evidence presented at the preliminary examination to bind defendant over on Count II of the information.

The trial court quashed Count II after extensive argument by counsel. Its reasons for doing so, however, were not made clear. Apparently, the trial judge did not believe an attempt to break jail or escape would be a violation of MCL 750.197c; MSA 28.394(3). After the prosecutor refused the court’s invitation to amend Count II, it was quashed.

Assuming that Count II was quashed on defendant’s first ground, that an "attempt” was not proscribed by the statute, the trial court erred in quashing it. Attempted jail break through the use of violence is necessarily included within the completed offense. See People v Lovett, 396 Mich 101; 238 NW2d 44 (1976). The attempt language in Count II thus could be viewed as mere surplusage. Even if Count II is viewed as duplicitous, quashing it was error. See MCL 767.75; MSA 28.1015, MCL 767.2; MSA 28.942, providing that an information may not be quashed for duplicity or uncertainty.

Defendant contends that Count II was quashed because there was insufficient evidence to bind defendant over on that charge, arguing that an actual escape from the confines of a jail is a necessary element of the offense of jail break, with violence, MCL 750.197c; MSA 28.394(3).

That statute provided, at the time of the alleged offense:

"Any person lawfully imprisoned in any jail or place of confinement established by law for any term or awaiting examination, trial, arraignment, sentence, or after sentence awaiting or during transfer to or from any prison, for any crime or offense, or charged with any crime or offense who, without being discharged from jail or the place of confinement by due process of law, through the use of violence, threats of violence or dangerous weapons, shall break such jail or place of confinement and escape, or break jail, although no escape be actually made, shall be guilty of a felony.”

The plain words of that statute belie defendant’s argument, for the statute proscribes jail breaking through the use of violence "although no escape be actually made”. Thus, jail break and escape are not synonymous, and the evidence in the case at bar was not insufficient because defendant never actually effected an escape.

The Supreme Court’s order in People v Quintero, 399 Mich 888 (1977), vacating the Court of Appeals opinion, does not mandate a different result. That order does not require an escape from the ultimate boundaries of a prison as a prerequisite to prosecution. Rather, the Court appears to have been concerned with two factors not present in the case at bar: whether the area Quintero had entered was in fact an area in which he was not authorized to be and whether he intended to leave a place of confinement and enter an unauthorized area, as part of an escape attempt.

In the case at bar, there was evidence presented at the preliminary examination that defendant, who had left his cell in the custody of a turnkey and was being escorted back to his cell, struck the turnkey, picked up his keys and ran from a place of confinement. He was subdued and captured in a place where he was not authorized to be. We cannot say that the magistrate abused his discretion in binding defendant over for trial. See, e.g., People v Mosley, 74 Mich App 145; 254 NW2d 33 (1977). Thus, assuming the trial court quashed Count II on the basis of insufficiency of the evidence, it erred.

In sum, the trial court erred in quashing Count II under either ground advanced by defendant.

This raises defendant’s third issue: does the constitutional protection against double jeopardy bar prosecution on Count II as defendant has pleaded guilty to Count I—assaulting a police officer?

A defendant may not be convicted of two crimes where, on the facts of the particular case, the trier of fact must necessarily find him guilty of one in order to find him guilty of the other. See People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), People v Martin, 398 Mich 303; 247 NW2d 303 (1976), People v Alexander, 82 Mich App 621; 267 NW2d 466 (1978).

In the case at bar, defendant was charged with breaking jail through the use of violence, threats of violence or dangerous weapons. Defendant has pleaded guilty to assaulting a police officer. The only evidence in this case of any use of violence was the assault on the police officer. Thus, defendant may not be convicted of both jail break with violence and assaulting a police officer, because, on the facts of this case, the trier of fact must necessarily find him guilty of the assault on a police officer in order to convict him of jail break with violence. Separate convictions are impermissible under Stewart and Martin.

Of course, defendant has not been convicted twice. Double jeopardy does not prevent the prosecutor from charging separate offenses in a single prosecution.

"A defendant may be charged and tried for each act that constitutes a separate crime. However, when tried for an act which includes lesser offenses, if the jury finds guilt of the greater, the defendant may not also be convicted separately of the lesser included offense.” People v Martin, supra, at 309.

We simply indicate that a conviction for breaking jail through the use of violence in this case after defendant had pleaded guilty to assaulting a police officer would constitute unconstitutional multiple punishment for the same offense.

Reversed and remanded for further proceedings consistent with this opinion.

       Defendant pled guilty to Count I after Count II had been quashed. The guilty plea has not been challenged on appeal.

       MCL 750.92; MSA 28.287 provides for penalties for attempts to commit crimes for which no specific provision has been made.

       The statute has since been amended by 1976 PA 188.

        See People v Quintero, 67 Mich App 481; 241 NW2d 251 (1976). The order states:
      "[T]he decision of the Court of Appeals is vacated, and this case is remanded to the trial court for specific findings as to:
      "(1) the physical limits of the prison;
      "(2) whether the prison population generally and the defendant in particular were aware of those limits;
      "(3) whether the defendant was in fact outside of the limits;
      "(4) whether the defendant was aware that he was outside the limits;
      "(5) whether there is any merit to defendant’s contention that the prison authorities tolerated, authorized or permitted him or other prisoners, either in the course of their duties or as a matter of practice to be in this or like areas (Judge Allen’s reference to 'skating’).
      "(6) did the defendant make the statement about intending to go to Mexico?
      "(7) if so, was he on the hill or off limits as the first step in executing a plan to go to Mexico?
      "(8) did the defendant intend to leave the prison boundaries and did he do so with the requisite state of mind?
      "The trial court shall then enter an appropriate order affirming appellant’s conviction or granting a new trial. This Court retains no further jurisdiction over the matter.” 399 Mich 888.

       The "place of confinement” could be considered to be either the custody of the officer or the cell area from which defendant allegedly ran.

       US Const Am V; Const 1963, art 1, § 15.
      We are here concerned with the aspect of double jeopardy forbidding multiple punishments for the same offense. See People v Martin, 398 Mich 303; 247 NW2d 303 (1976).

       This analysis applies equally to conviction of a greater offense following conviction of a lesser offense. See Brown v Ohio, 432 US 161; 53 L Ed 2d 187; 97 S Ct 2221; (1977).