text:
    PEOPLE v HARRIS
    1. Criminal Law — Offenses—Cognate Offenses.
    Cognate offenses are offenses which share several elements and are of the same class or category, but the lesser offense may contain some elements not found in the greater offense.
    2. Criminal Law — Armed Robbery — Receiving and Concealing Stolen Property — Elements—Cognate Offenses.
    There are no overlapping elements of the crimes of armed robbery and receiving and concealing stolen property; therefore, receiving and concealing stolen property is not a cognate lesser offense on which a trial court is required to instruct a jury upon request in a trial for armed robbery.
    3. Criminal Law — Armed Robbery — Unlawfully Driving Away an Automobile — Elements—Cognate Offenses.
    The crimes of armed robbery and unlawfully driving away an automobile share the elements of a trespassory taking and asportation of the property of another, and the offenses share the common statutory purpose of deterrence and punishment of the theft of property; therefore, unlawfully driving away an automobile is a cognate offense of armed robbery.
    4. Criminal Law — Instructions to Jury — Cognate Offenses — Request for Instructions.
    A requested jury instruction on a cognate lesser offense need be given only where the evidence adduced at trial would support a conviction of the lesser offense.
    5. Criminal Law — Larceny From a Person — Unlawfully Driving Away an Automobile — Instructions to Jury.
    A conviction of larceny from a person should be reversed and the case remanded for entry of a conviction of unlawfully driving away an automobile where the trial court refused a request to instruct the jury on the crime of unlawfully driving away an automobile, where on the facts of the case the jury must have found the defendant guilty of all elements of unlawfully driving away an automobile to convict him of larceny from a person.

      References for Points in Headnotes

       [No reference]

       66 Am Jur 2d, Receiving Stolen Property § 33. 67 Am Jur 2d, Robbery § 72.

       7 Am Jur 2d, Automobiles and Highway Traffic §§ 303-308, 321.

       75 Am Jur 2d, Trial § 876 et seq.

       7 Am Jur 2d, Automobiles and Highway Traffic §§ 303-308. 8 Am Jur 2d, Automobiles and Highway Traffic § 1019.

      Appeal from Recorder’s Court of Detroit, Samuel C. Gardner, J.
    Submitted December 14, 1977, at Detroit.
    (Docket No. 30265.)
    Decided March 21, 1978.
    Calvin Harris was convicted of larceny from a person. Defendant appeals.
    Reversed and remanded.

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

      Lieberman & Tukel, P. C. (by Miriam L. Siefer), for defendant on appeal.
    Before: N. J. Kaufman, P. J., and Bronson and D. E. Holbrook, JJ.
   Per Curiam.

Defendant was charged with armed robbery. MCLA 750.529; MSA 28.797. Defense counsel timely requested instructions on unarmed robbery, MCLA 750.530; MSA 28.798; larceny from a person, MCLA 750.357; MSA 28.589; receiving or concealing stolen property (RCSP), MCLA 750.535; MSA 28.803, and unlawfully driving away an automobile (UDAA), MCLA 750.413; MSA 28.645. The trial court refused to instruct on RCSP or UDAA. Defendant was convicted by a jury of larceny from a person and appeals of right, raising two issues.

Defendant first contends that it was error for the trial court to refuse to give requested instructions on RCSP and UDAA in an armed robbery prosecution. This issue requires an examination of People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975).

Neither side contends nor do we find that RCSP or UDAA are necessarily included offenses.

Ora Jones described cognate offenses as sharing several elements and being of the same class or category, but the lesser may contain some elements not found in the higher offense. In determining whether RCSP or UDAA are cognate offenses of armed robbery, we must analyze the elements of each crime.

The elements of armed robbery are: 1) the trespassory, 2) taking and 3) carrying away of the 4) personal property 5) of another 6) with intent to permanently deprive 7) from a person or in his presence 8) while armed. See MCLA 750.529; MSA 28.797; LaFave & Scott, Criminal Law, 692.

The elements of RCSP are:

"(1) that the property was stolen; (2) the value of the property; (3) the receiving, possession or concealment of such property by the defendant with the knowledge of the defendant that the property had been stolen; (4) the identity of the property as being that previously stolen; and (5) the guilty constructive or actual knowledge of the defendant that the property received or concealed had been stolen.”

People v Matuja, 77 Mich App 291, 295; 258 NW2d 79 (1977).

We find no overlapping elements between armed robbery and RCSP. Therefore, even assuming a common statutory purpose, we hold that RCSP was not a cognate lesser offense on which the trial court was required to instruct upon request.

The elements of UDAA are: 1) taking possession 2) of an automobile 3) and a willful 4) driving or taking away 5) without authority. See MCLA 750.413; MSA 28.645, People v Limon, 4 Mich App 440; 145 NW2d 287 (1966).

Some overlap between the elements of armed robbery and UDAA is apparent. Both require the . trespassory (without authority) taking and asportation (driving away) of the property (automobile) of another. While UDAA does not require a specific intent to steal, the taking must be willful. In addition to the overlap of several elements, the offenses share a common statutory purpose: the deterrence and punishment of the theft of property. We hold that UDAA is a cognate offense of armed robbery.

A requested instruction on a cognate offense need be given only when the evidence adduced at trial would support a conviction of the lesser offense. People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975). In the case at bar, testimony at trial established that an employee of a Cadillac dealership was in an automobile.. Two individuals approached the car. Defendant-appellant was identified as the one who got into the front seat; his companion entered the back seat. Defendant asked the employee to leave the car, stating that the back seat passenger had a gun. The employee saw a gun and exited the car. The back seat passenger also got out; the front seat passenger drove away. Three days later two occupants of the stolen car were arrested and identified defendant-appellant as the driver. This evidence would have supported a conviction of UDAA. Therefore, the trial court erred in refusing to instruct upon request on UDAA.

We also hold that the trial court was not required to instruct sua sponte on the inherent dangers of accomplice testimony where there was no evidence indicating that the two witnesses were accomplices.

Defendant’s conviction of larceny from a person is reversed. While ordinarily it would be improper for this Court to speculate on the verdict a jury would have returned had it been properly instructed on cognate offenses, on the particular facts of this case, the jury must have found defendant guilty of all elements of UDAA to convict him of larceny from a person. Cf. People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975). This case therefore is remanded for entry of a judgment of conviction of UDAA and resentencing. If, however, the prosecutor is persuaded that the ends of justice would be better served, upon notification to the trial court before resentencing, the trial court shall vacate the judgment of conviction and grant a new trial on the charge of larceny from a person.

        See People v McCoy, 392 Mich 231; 220 NW2d 456 (1974).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE v CURL
    Automobiles — Insurance—Uninsured Motorist Coverage — Stacking — Parent and Child — Relatives.
    Uninsured motorist provisions in two automobile insurance policies owned by a decedent’s parents may be stacked where the decedent was living with his parents and covered by their policies at the time he was killed when the motorcycle on which he was riding was struck by an automobile driven by an uninsured motorist; however, a policy issued by the same insurer, with the same uninsured motorist provision, owned by a relative of the decedent who was living with the decedent and the decedent’s parents at the time decedent was killed, may not be stacked with the other policies.
    Appeal from Wayne, James Montante, J.
    Submitted October 11, 1977, at Detroit.
    (Docket No. 77-578.)
    Decided March 21, 1978.
    Complaint by the Detroit Automobile Inter-Insurance Exchange against Brenton Curl, administrator de bonis non of the estate of Russell Curl, deceased, for a declaratory judgment that the uninsured motorist provisions in three automobile insurance policies cannot be stacked. Summary judgment for plaintiff. Defendant appeals.
    Affirmed in part, reversed in part, and remanded.

      Selby, Dickinson, Pike, Mourad & Brandt (by Mark E. Morley), for plaintiff.

      Hurwitz & Karp, for defendant.
    Reference for Points in Headnote
    7 Am Jur 2d, Automobile Insurance § 135.

      Before: D. E. Holbrook, P. J., and N. J. Kaufman and J. E. McDonald, JJ.

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

   Per Curiam.

On March 22, 1975, Russell Curl was a passenger on a motorcycle owned and operated by Ronald Priebe, Jr. Priebe’s motorcycle was struck from the rear by an automobile owned and operated by Glyndon McDaniel, an uninsured motorist. As a result of the accident, Russell Curl was killed.

On the date of the collision, Curl resided with his parents who were insured by the plaintiff under two separate policies of automobile insurance, both of which provided uninsured motorist coverage. Additionally, the plaintiff issued a policy of insurance providing uninsured motorist coverage to Craig Cummins, a relative of Curl residing in the home of Curl and his parents. All three policies of insurance were identical and each provided $20,000/$40,000 uninsured motorist coverage.

On August 17, 1976, plaintiff filed a suit seeking declaratory relief on the question of whether the uninsured motorist coverage of the three policies of insurance could be stacked so as to allow $60,-000/$120,000 uninsured motorist coverage. Plaintiff argued in the negative. In response to this suit, defendant moved for summary judgment claiming that as a matter of law stacking of uninsured motorist benefits is proper. On January 25, 1977, the circuit court denied defendant’s motion and ruled that stacking could not be allowed. Defendant appeals.

We first concern ourselves with the question of whether the Cummins’ policy could be stacked, were we to allow stacking, as a general rule. We hold it can not. Defendant makes no argument which convinces us that it is somehow "proper as a matter of law” to subject plaintiff-insurer to potentially unlimited liability as to Cummins’ policy under these circumstances. Furthermore, the rationale supporting the disposition of the other policies is inapposite to Cummins.

On the other hand, the policies owned by decedent’s parents may be stacked for the reasons stated in the dissenting opinion in Kozak v Detroit Automobile Inter-Insurance Exchange, 79 Mich App 777; 262 NW2d 904 (1977). Therefore, we reverse the circuit court’s determination as to those two policies and remand for proceedings consistent with this opinion.

Affirmed in part; reversed in part. No costs, neither side having prevailed in full.


text:
    WASHINGTON v SHERROD
    Bastards — Support—Paternity Act — Support Enforcement Act— Statutes — Court Rules.
    Actions under the Paternity Act and the Uniform Reciprocal Enforcement of Support Act are governed by General Court Rules unless inconsistent or modified by those acts, and the methods of enforcement provided in the Paternity Act are not exclusive because enforcement of support orders may also be sought under the provisions of the Uniform Reciprocal Enforcement of Support Act (MCLA 722.711 et seq., 780.151 et seq.; MSA 25.491 et seq., 25.225 et seq., GCR 1963, 730.1, 731).
    Appeal from Jackson, Gordon W. Britten, J.
    Submitted December 13, 1977, at Lansing.
    (Docket No. 77-916.)
    Decided March 21, 1978.
    Petition filed by Wanda Washington in Nebraska seeking support payments for her daughter from Russell A. Sherrod. Petition forwarded to Michigan and filed in circuit court under the Uniform Reciprocal Enforcement of Support Act. Wanda Washington also sought support payments for her daughter in a paternity action. Accelerated judgment for defendant.
    Plaintiff appeals. Reversed and remanded.

      James O. Marks, for plaintiff.
    References for Points in Headnote
    10 Am Jur 2d, Bastards § 126 et seq.

    Illegitimate children: application, to illegitimate children, of criminal statutes relating to abandonment, neglect, and nonsupport of children. 99 -ALR2d 746.
    Determination of paternity of child as within scope of proceeding under Uniform Reciprocal Enforcement of Support Act. 81 ALR.3d 1175.

      Before: V. J. Brennan, P. J., and D. F. Walsh and H. L. Heading, JJ.

       Detroit Recorder’s Court judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

Plaintiff filed a petition in Nebraska seeking support payments for her daughter. The petition was forwarded to Jackson County, Michigan, where defendant resides, for filing in the Jackson County Circuit Court under the Uniform Reciprocal Enforcement of Support Act, MCLA 780.151 et seq.; MSA 25.225(1) et seq. A paternity action, MCLA 722.711 et seq.; MSA 25.491 et seq., had previously been instituted by plaintiff in the Jackson County Circuit Court and a consent order of support had been entered directing defendant to pay $12 per week towards the support of the child.

The circuit court, sua sponte, entered accelerated judgment for the defendant. GCR 1963, 116.1(4). The court ruled that it could not maintain two support files on defendant.

We find error in the entry of accelerated judgment. GCR 1963, 730.1 and GCR 1963, 731 provide that actions under the Paternity Act and the Uniform Reciprocal Enforcement of Support Act shall be governed by the General Court Rules except as inconsistent with or modified by those acts. MCLA 722.728; MSA 25.508 expressly provides that the methods of enforcement provided in the Paternity Act are not exclusive and that enforcement of support orders may also be sought under the provisions of URESA.

The order of dismissal is reversed. The case is remanded for further URESA proceedings.

No costs, a public question.


text:
    SPRUYTTE v DEPARTMENT OF CORRECTIONS
    1. Pleading — Causes op Action — Labels—Governmental Immunity —Torts—Contracts.
    The Court of Appeals is not controlled by the labels chosen by a plaintiff for a cause of action where significant public policy considerations are involved; therefore, where an action against a governmental agency actually sounded in tort, but the plaintiff brought an action for breach of a bailment contract, the trial court acted properly in granting the defendant’s motion for accelerated judgment based on the defense of governmental immunity to the actual tort claim.
    2. Torts — Governmental Immunity — Governmental Function— Statutes.
    All governmental agencies are immune from tort liability in all cases where the governmental agency is engaged in the exercise or discharge of a governmental function, subject to several exceptions (MCLA 691.1407; MSA 3.996[107j).
    3. Torts — Governmental Immunity — Governmental Function— Words and Phrases — Case-by-Case Analysis — Operation op Jail — Prisoner Transfer.
    The term "governmental function” is a term of art which has been used by courts of this state to describe those activities which due to their public nature should not give rise to liability at common law; in the absence of prior judicial decision on whether a given activity is a governmental function the courts will take a case-by-case approach; the operation and maintenance of a jail is a governmental function and prisoner transfer procedure is an incident of the operation and maintenance of prisons and thus is within the scope of the performance of a uniquely governmental function.
    References for Points in Headnotes

       61 Am Jur 2d, Pleading §§ 24, 65, 66, 76.

       57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 27-30.
    Municipal immunity from liability for torts. 60 ALR2d 1198.  60 Am Jur 2d, Penal and Correctional Institutions §§ 3, 19, 22, 23, 27, 28.

      Appeal from the Court of Claims, James G. Fleming, J.
    Submitted February 16, 1978, at Lansing.
    (Docket No. 77-2347.)
    Decided March 21, 1978.
    Complaint by Floyd Spruytte against the Department of Corrections for damages for the failure of defendant to return personal property turned over to agents of defendant. Judgment for defendant. Plaintiff appeals.
    Affirmed.

      Shumar & Murphy, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Michael J. Hodge, Assistant Attorney General, State Affairs Division, for defendant.
    Before: Danhof, C. J., and Bronson and N. J. Lambros, JJ.

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

   Per Curiam.

Plaintiff, a prisoner, was transferred from Southern Michigan Prison to Marquette in August, 1973. In preparation for his transfer, plaintiff was required to turn over his personal property to the agents of the defendant. In return, he received a resident personal property receipt which itemized the property he had placed in the custody of the defendant. Plaintiff’s property was never returned to him after his arrival at Marquette.

Plaintiff brought suit alleging that the resident personal property receipt constituted a bailment contract and claiming damages of $28,939.84 for breach. Defendant moved for accelerated and summary judgment on the ground that plaintiff’s complaint was a disguised tort claim and that, as a tort claim, it was subject to the defense of governmental immunity. Plaintiff appeals from an order granting defendant’s motion.

The trial court did not err in finding that the receipt did not constitute an express contract since it did not contain any contract terms. Therefore, any bailment relationship must be based on an implied contract. An implied contract, like other contracts, requires mutual assent and consideration. The parties did not appear to have any intention of entering into a contractual relationship since this procedure was required as an aspect of prison management and control. Furthermore, this purported contract lacks consideration since the parties were only performing a preexisting duty. As part of the transfer procedure, plaintiff was required to give up his property to the defendant, and the defendant was required to take it and hold it for him. Even if plaintiff was able to show a bailment contract, the Court could look beyond the contract label to determine whether the substance of the complaint sounded in tort. When significant public policy considerations are involved, the Court is not controlled by the labels chosen by the plaintiff, Greatrex v Evangelical Deaconess Hospital, 261 Mich 327; 246 NW 137 (1933). In Greatrex, at 332, the Court quoted with approval the entire opinion of Rudy v Lakeside Hospital, 115 Ohio St 539; 155 NE 126 (1926), where the Ohio court dismissed a similar action which attempted to circumvent a tort liability defense by pleading an implied contract of bailment.

Subject to certain statutory exceptions, all government agencies shall be immune from tort liability in all cases where the government agency is engaged in the exercise or discharge of a governmental function. MCLA 691.1407; MSA 3.996(107).

"Governmental function” is not defined by statute. It is, however, a term of art which has been used by the courts of this state to describe those activities of government which due to their public nature should not give rise to liability at common law. In the absence of prior judicial decision on whether a given activity is a governmental function, the courts will take a case-by-case approach. Thomas v Department of State Highways, 398 Mich 1; 247 NW2d 530 (1976). The operation and maintenance of a jail is a governmental function. Green v Department of Corrections, 30 Mich App 648; 186 NW2d 792 (1971), aff'd, 386 Mich 459; 192 NW2d 491 (1971), Wojtasinski v Saginaw, 74 Mich App 476; 254 NW2d 71 (1977). Furthermore, the prisoner transfer procedure, which required the plaintiff to be separated from his personal property, is an incident of the operation and maintenance of prisons and thus is within the scope of the performance of a uniquely governmental function.

Affirmed. No costs, a public question involved.


text:
    WEISSWASSER v CHERNICK (ON REHEARING)
    1. Trespass — Trespass to Land — Damages—Measurement of Damages — Compensation for Loss — Land Values.
    Generally, damages in trespass to land are measured by the difference between the value of the land before the harm and the value after the harm, but there is no fixed, inflexible rule for determining, with mathematical certainty, what sum shall compensate for the invasion of the interests of the owner; therefore, whatever approach is most appropriate to compensate him for his loss in the particular case should be adopted.
    2. Trespass — Trespass to Land — Damages—Measurement of Damages — Ornamental Shade Trees — Unique Value — Replacement and Restoration.
    Damages with respect to ornamental or shade trees are not restricted solely to a value-before and a value-after test for injury to the freehold; while these are proper elements for the jury’s consideration, the jury may also consider the value of the trees themselves to the contemplated or existing uses of the land, including the cost of replacement or restoration in cases where the property destroyed has a unique value of its own.
    3. Trespass — Trespass to Land — Damages—Measurement of Damages — Before and After Trespass — Value of Trees — Aesthetic Value.
    The proper measure of damages is the difference between the value of the land before a trespass and the value of the land after the trespass where there is no allegation that either the fill removed or the trees destroyed in the earth moving process had any unique value of their own or any special aesthetic value to the owners.
    Appeal from Oakland, Robert L. Templin, J.
    References for Points in Headnotes
    [1, 3] 75 Am Jur 2d, Logs and Timber § 126 et seq.

       Measure of damages for destruction of or injury to trees and shrubbery. 69 ALR2d 1335.
    52 Am Jur 2d, Logs and Timber § 126 et seq.

      Submitted July 18, 1977, at Lansing.
    (Docket No. 77-2645.)
    Decided March 21, 1978.
    Complaint by Daniel Weisswasser and Beatrice Coleman, as co-guardians of Lillian Weisswasser, and others against Michael F. Chernick and others for damages for trespass. Judgment for plaintiffs. Defendants appealed. Reversed and remanded for entry of judgment for defendants, 68 Mich App 342 (1976). Plaintiffs appealed to the Supreme Court, which reversed and remanded to the Court of Appeals for further consideration, 399 Mich 653 (1977). Upon consideration on remand, judgment for plaintiffs affirmed, 77 Mich App 681 (1977). Defendants moved for rehearing. Granted.
    Upon reconsideration, reversed and remanded.

      Pence, Rogers, Carlson & Flynn, for plaintiffs.

      Marvin A. Canvasser and Felix S. Kubik, for defendant.
    Before: Bashara, P. J., and N. J. Kaufman and D. F. Walsh, JJ.
   On Rehearing

Per Curiam.

This case has been before this Court on two prior occasions. Originally, this Court reversed a lower court finding of intentional trespass, 68 Mich App 342; 242 NW2d 576 (1976), because plaintiffs had not sustained their burden of proof.

That decision was reversed by the Supreme Court, 399 Mich 653; 252 NW2d 766 (1977), reh den, 400 Mich 1029, remanding the case to us for consideration of the remaining issues raised by defendants on appeal.

Confining ourselves to the issue of damages, we held that the trial court did not err by instructing the jury that it could consider replacement costs in determining damages. 77 Mich App 681; 259 NW2d 357 (1977).

Defendants-appellants moved for rehearing, arguing that this Court’s opinion on remand misread the cases cited as authority for its conclusion. We are constrained to agree.

The cases cited in the remand opinion for the proposition that replacement and restoration costs are proper elements for the jury to consider in assessing damages involved special circumstances not present in this case.

In Kelly v Fine, 354 Mich 384; 92 NW2d 511 (1958), the owner of an occupied residential lot recovered costs to replace topsoil, which was intended to complete landscaping on the property.

In Schankin v Buskirk, 354 Mich 490; 93 NW2d 293 (1958), the owners of a residential lot recovered the value of ornamental shade trees, which affected the aesthetic value of the property. In Schankin, however, the Supreme Court made the following statement about the measure of damages in trespass cases:

"Generally speaking, damages in trespass to land are measured by the difference between the value of the land before the harm and the value after the harm, but there is no fixed, inflexible rule for determining, with mathematical certainty, what sum shall compensate for the invasion of the interests of the owner. Whatever approach is most appropriate to compensate him for his loss in the particular case should be adopted.
"We are not, with respect to ornamental or shade trees, restricted solely to a value-before and a value-after test for injury to the freehold. These are proper elements for the jury’s consideration but it may consider, as well, the value of the trees themselves to the contemplated or existing uses of the land, including the cost of replacement or restoration, in those cases where, as here, the property destroyed has a unique value of its own.” 354 Mich at 494, 496.

In this case there is no allegation that either the fill removed from the plaintiffs land or the trees destroyed in the earth moving process had any unique value of their own or any special aesthetic value to the owners. The proper measure of damages, therefore, is the difference between the value of the land before the trespass and the value of land after the trespass. See Governale v City of Owosso, 59 Mich App 756; 229 NW2d 918 (1975).

This case is reversed, therefore, and remanded to the trial court for a new trial on the issue of damages. The trial court shall instruct on diminution of value as the measure of damages, taking into consideration the above-quoted language of Schankin v Buskirk, supra. Additionally, because of the length of time already expended in the adjudication of this cause, the trial court is directed to hear this case as soon as is expeditiously possible. We do not retain jurisdiction.

Reversed and remanded.

       It should be noted that the commercial value of the timber, minerals or other materials removed in a trespass to land may be considered in determining the diminution in the value of the freehold. Gates v Comstock, 113 Mich 127; 71 NW 515 (1897). If the commercial value of what was removed by the trespass exceeds the diminution in the value of the freehold, it would be proper for the jury to award damages in an amount equal to the value of what was removed. See, Bockes v A McAfee & Son Co, 165 Mich 7, 10; 130 NW 313 (1911).


text:
    PEISNER v DETROIT FREE PRESS, INCORPORATED
    1. Libel and Slander — Public Figures — Actual Malice.
    Liability for defamation may not be imposed upon a newspaper or broadcaster without a showing of actual malice if the plaintiff is a public official or public figure; an individual should not be deemed a public personality for all aspects of his life absent clear evidence of general fame or notoriety in the community and pervasive involvement in the affairs of society.
    2. Libel and Slander — Public Figures.
    The fact that an attorney was appointed to handle a criminal appeal is not a sufficient basis for holding that he was a public figure for purposes of avoiding liability in a defamation action brought by the attorney against a newspaper.
    3. Libel and Slander — Qualified Privilege — Matters of Public Interest— Question of Law.
    A newspaper has a qualified privilege to report on matters of public interest; however, whether a qualified privilege exists in a particular case is a question of law to be decided by the trial court based on the circumstances surrounding the publication.
    4. Libel and Slander — Qualified Privilege — Actual Malice— Knowledge of Falsity.
    A plaintiff, in order to recover in a defamation action, must affirmatively prove actual malice on the part of the defendant where a qualified privilege exists; actual malice is established by proof that the defamatory statement upon which the action is based was made with knowledge that it was false or with reckless disregard of whether it was false or not.

      References for Points in Headnotes

       50 Am Jur 2d, Libel and Slander §§ 122, 123.
    What constitutes actual malice, within Federal constitutional rule requiring public officials and public figures to show actual malice. 20 ALR3d 988.
    Who is public official or otherwise within the Federal constitutional rule requiring public officials to show actual malice. 19 ALR3d 1361.
    Who is "public figure” in the light of Gertz v Robert Welch, Inc (1974). 75 ALR3d 616.

       50 Am Jur 2d, Libel and Slander §§ 251-253.

       73 Am Jur 2d, Summary Judgment §§ 26, 28-30, 32-36.

      5. Judgment — Summary Judgment — Failure to State Issue — Benefit of Doubt— Court Rules.
    Affidavits, pleadings, depositions, admissions and other documentary evidence must be considered by a court when considering a motion for summary judgment based upon failure to state a genuine issue as to any material fact, and the benefit of every reasonable doubt must be given to the party opposing the motion (GCR 1963, 117.2[3]).
    6. Judgment — Summary Judgment — Failure to State Issue — Evidentiary Sufficiency — Court Rules.
    A motion for summary judgment for failure to state a genuine issue as to any material fact tests the evidentiary sufficiency of the opposing party’s case (GCR 1963, 117.2[3]).
    Appeal from Wayne, Peter B. Spivak, J.
    Submitted December 12, 1977, at Detroit.
    (Docket No. 77-2779.)
    Decided March 21, 1978.
    Complaint by Balfour Peisner and Nora Peisner against the Detroit Free Press, Incorporated, and Louis Heldman for damages for libel. Summary judgment for defendants. Plaintiffs appeal.
    Reversed and remanded.

      Leroy W. Daggs (by Balfour Peisner, of counsel), for plaintiffs.

      Kenneth Murray and Brownson Murray, for defendants.
    Before: N. J. Kaufman, P. J., and Bronson and D. E. Holbrook, JJ.
   Per Curiam.

Plaintiff Balfour Peisner, a Detroit attorney, and his wife, Nora S. Peisner, filed suit against defendants Detroit Free Press and Louis Heldman, its reporter, on December 10, 1973, in connection with the newspaper’s publication of an article and an editorial concerning plaintiff Balfour Peisner’s representation of an indigent criminal defendant.

The article, which appeared in the November 20, 1973, edition of the Free Press, stated that Detroit Recorder’s Court Judge Patrick O’Brien had appointed Peisner, his longtime friend and former campaign manager, to handle the appeal of an indigent defendant’s conviction for manslaughter after a trial at which he had presided. Peisner’s appeal in that case, according, to the article, was his first criminal appeal and failed to raise the issue of the trial judge’s prejudicial misconduct. The article stated that the judge had called the defendant’s trial attorney a liar and questioned his competence and ethics in the presence of the jury. The article also reported that the defendant had struggled in vain to have Peisner removed as his appointed counsel on appeal and that Peisner had said that he failed to raise the issue of the judge’s conduct on appeal because he did not wish to "sling mud”.

On November 23, 1973, plaintiff Balfour Peisner wrote a letter to the editor of defendant Detroit Free Press demanding that the paper print a retraction of the article.

On December 1, 1973, defendant newspaper printed an editorial deploring the "buddy system” of justice whereby judges appoint their friends to handle the cases of indigent defendants. Detroit Recorder’s Court Judge Patrick O’Brien, said the editorial, had appointed Balfour Peisner, his former campaign manager, to handle the appeal of a defendant convicted before him at a trial which involved the possible misconduct of the judge. In handling the appeal, said the Free Press, Peisner failed to mention the fact that the judge had called the defendant’s previous attorney a liar.

Plaintiffs complaint alleged, inter alia, that the defense attorney had not been called a liar or his competence and ethics questioned in the jury’s presence and that the article was therefore untrue. It asserted that Balfour Peisner and Louis Heldman had a conversation regarding the controversy before publication of the article at which time Louis Heldman admitted that the only misconduct at the trial was that of the defense attorney and Balfour Peisner explained that misconduct by defense counsel was not grounds for appeal.

Defendants’ answer stated that Recorder’s Court Judge Patrick O’Brien’s remarks may or may not have been made in the jury’s presence but that during the trial the judge did attack defense counsel’s competence and ethics and that, therefore, the article’s accusation that Peisner had failed to raise the issue of judicial misconduct on appeal was true. The answer denied that defendant Held-man ever admitted that the misconduct at trial was wholly that of defense counsel and alleged that plaintiff Peisner had attempted to elicit such a response from Heldman and had explained his failure to raise the issue on appeal with the statement, "I didn’t want to sling mud”. The answer also denied that the article and editorial were published maliciously and alleged that both were true.

The answer raised affirmative defenses of constitutional privilege and qualified privilege on the grounds that the controversy was a matter of widespread public interest and also averred that plaintiffs had failed to allege facts from which malice could be inferred.

On June 14, 1977, after three and one-half years of discovery and disputes, defendants filed a motion for summary judgment on the grounds that the complaint failed to state a cause of action and there existed no genuine issue of any material fact. Specifically, the motion asserted that the matters reported in the article and editorial were true and that, in any event, their publication was privileged, plaintiffs having failed to allege sufficient facts to create a question of malice.

By his affidavit, submitted in support of the motion, Louis Heldman swore that he was told by counsel for the defendant, whose conviction plaintiff Peisner was appointed to appeal, that Recorder’s Court Judge Patrick O’Brien had called him a liar in the presence and the absence of the jury and that the judge admitted calling defense counsel a liar several times on the record at the trial. Heldman further swore that he knew of no untruth or inaccuracy in the story which he prepared and that he bore plaintiff Peisner no ill will or malice.

In another affidavit, the managing editor of the Free Press swore that the article and editorial were printed as a matter of public interest in the administration of justice, were based on the knowledge and information available to the defendants at the time of publication, were believed to be true and were not motivated by any animosity toward plaintiff.

Plaintiffs’ answer to defendants’ motion for summary judgment asserted that the allegations contained in plaintiffs’ complaint that Louis Heldman had admitted to Peisner that defense counsel and not the judge had been at fault and that Peis.ner’s letter of November 23, 1973, placed defendants on notice that the article was untrue were sufficient to create a substantial question of fact concerning the existence of malice.

In an affidavit supporting plaintiffs’ answer, Balfour Peisner swore that nowhere in the transcript was defense counsel called a liar in the jury’s presence and that Louis Heldman admitted that defense counsel and not the trial judge had been guilty of misconduct. Peisner further stated that defendants took no precautions to verify the article before publication.

The trial judge granted defendants’ motion for summary judgment on June 30, 1977, holding that the publications in the instant case were qualifiedly privileged since the prior lawsuit was a matter of "public interest”, that plaintiff Balfour Peisner was a "public figure” at the center of a public controversy and that plaintiffs had made no showing of affirmative facts which would indicate that defendants acted with actual malice.

I.

Defendants contend that plaintiff is a "public figure” within the meaning of Gertz v Robert Welch, Inc, 418 US 323; 94 S Ct 2997; 41 L Ed 2d 789 (1974). In Gertz, the U. S. Supreme Court held that liability for defamation may not be imposed upon a newspaper or broadcaster without "actual malice” if the plaintiff is a public official or public figure. The stated reason for this distinction was that:

"Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.” 418 US at 344 (footnote omitted).

In this context, the Court described "public figures”:

"For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.” 418 US at 345.

Specifically, the Court addressed whether Gertz could be classified as a public figure:

"Petitioner has long been active in community and professional affairs. He has served as an officer of local civic groups and of various professional organizations, and he has published several books and articles on legal subjects. Although petitioner was consequently well known in some circles, he had achieved no general fame or notoriety in the community. None of the prospective jurors called at the trial had ever heard of petitioner prior to this litigation, and respondent offered no proof that this response was atypical of the local population. We would not lightly assume that a citizen’s participation in community and professional affairs rendered him a public figure for all purposes. Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.
"In this context it is plain that petitioner was not a public figure. He played a minimal role at the coroner’s inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public’s attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation.” 418 US at 351-352.

Plaintiff in the case at bar is in a situation similar to Gertz. He is a well-known attorney, although certainly not a celebrity. He has not sought out publicity. Rather, the trial court’s sole basis for holding that he was a public figure was the fact that he was appointed to handle a criminal appeal. This is an insufficient basis for holding plaintiff to be a "public figure”. See, also, Time, Inc v Firestone, 424 US 448; 96 S Ct 958; 47 L Ed 2d 154 (1976); Anno., 20 ALR3d 988.

II.

We affirm the trial court’s holding that defendant had a qualified privilege to publish the articles in question. Gertz v Robert Welch, Inc, supra, held that:

"[S]o long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” 418 US at 347 (footnote omitted).

We have discovered no post-Gertz cases defining the standard under which private plaintiffs may recover damages for libel in Michigan. We therefore turn to earlier decisions of Michigan courts.

For many years, Michigan courts have attempted to balance the respective rights of private individuals and those with an interest or duty to publish information about private individuals under the rubric of qualified privilege. The first expression of the qualified privilege doctrine appears in Bacon v Michigan Central R Co, 66 Mich 166, 170; 33 NW 181 (1887):

"Qualified privilege exists in a much larger number of cases. It extends to all communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty. And the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation.”

This definition has been repeated and applied in more recent cases. See, eg., Bostetter v Kirsch Co, 319 Mich 547, 556-557; 30 NW2d 276 (1948); Timmis v Bennett, 352 Mich 355, 366; 89 NW2d 748 (1958); Lawrence v Fox, 357 Mich 134; 97 NW2d 719 (1959). Bufalino v Maxon Brothers, Inc, 368 Mich 140; 117 NW2d 150 (1962).

Qualified privilege of a newspaper to report on matters of public interest was held to exist in Lawrence v Fox, supra. Although that case involved an article charging a public official with fraud and corruption, it is clear that it was not limited to publications concerning public officials:

"This defense rests upon considerations of public policy. 'The great underlying principle upon which the doctrine of privileged communication stands,’ we held in Bacon v. Michigan Central R. Co., 66 Mich 166, 169, 170, 'is public policy. This is more especially the case with absolute privilege, where the interests and necessities of society require that the time and occasion of the publication or utterance, even though it be both false and malicious, shall protect the defamer from all liability to prosecution for the sake of the public good. It rests upon the same necessity that requires the individual to surrender his personal rights and to suffer loss for the benefit of the common welfare.’ The term privilege, then, having such origins, relates to a situation or occasion in which the importance of the criticism uttered by the defendant (for reasons to which we will in due course advert) justifies a modification, or, indeed, a withdrawal, of the protection normally afforded our citizens.
"The privilege thus afforded is not, however, as the mathematicians would put it, a constant. It varies with the situation, with what is regarded as the importance of the social issues at stake. At one extreme we have loose gossip, thoughtless or malevolent. Here the damage to the individual’s reputation is balanced only against the social desirability of the unbridled tongue, the frenetic lashings of the scorpion’s tail. Under the statutes of Edgar and Canute the tongue itself was forfeited. Modern law is more lenient. We class it simply as a case of 'no privilege’ and leave the parties to their proofs, .-it the other extreme are those occasions wherein the social interest involved in publication is so great as . to immunize even deliberately malicious attacks upon one’s character. Thus of judicial utterances, 'A communication absolutely privileged — as, for instance, words spoken by a judge in his judicial capacity in a court of justice — is not actionable, even though spoken maliciously.’ * * * So, also, of words spoken in the course of legislative debate.
"Considerations of social policy similar in principle, but of lesser intensity, result in a privilege not absolute but conditional, or, as sometimes put, qualified, or defeasible. These situations are of a great variety, all of them responding more or less directly to Baron Parke’s famous statement in Toogood v. Spyring (Ex 1834), 1 CM&R 181, 193 (149 Eng Rep 1044) that a publication is privileged when it is 'fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.’ These are the occasions in which one has not an absolute but a limited immunity to speak or publish words in and of themselves defamatory.” 357 Mich at 137-139 (footnotes and citations omitted).

Also relevant to the case at bar is Weeren v Evening News Association, 2 Mich App 74; 138 NW2d 526 (1965), rev’d on other grounds, 379 Mich 475; 152 NW2d 676 (1967). The Court of Appeals held in that case that the defendant broadcaster was qualifiedly privileged to televise a documentary film of public interest concerning a private plaintiff.

The question of whether a qualified privilege exists in a particular case is one of law to be decided by the trial court, based on the circumstances surrounding the publication. Lawrence v Fox, supra, at 139-140, Weeren v Evening News Association, supra, at 77. The trial judge in the case at bar held that the public’s interest in the administration of justice gave rise to a qualified privilege to report on events affecting a judicial proceeding. We find no error in this holding on the facts of this case.

III.

Where a qualified privilege exists, plaintiff, in order to recover, must affirmatively prove actual malice on the part of the defendant. Lawrence v Fox, supra; Weeren v Evening News Association, supra.

New York Times v Sullivan, 376 US 254, 280; 84 S Ct 710; 11 L Ed 2d 686; 95 ALR2d 1412 (1964), held that actual malice is established by proof that the defamatory statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not”.

In reviewing a 117.2(3) summary judgment motion, the following principles apply:

"Motions for summary judgment under GCR 1963, 117.2(3) are not proper unless no genuine issue as to any material fact remains. In passing on the motion, benefit of every reasonable doubt must be given to the party opposing the motion. Summary judgment under this provision is designed to test whether factual support exists for the claim made. Affidavits, pleadings, depositions, admissions, and other documentary evidence must be considered by the court. Courts are liberal in finding that a genuine issue does exist, in order not to infringe upon a party’s right to trial of disputed factual issues. Rizzo v Kretschmer, 389 Mich 363, 370-374; 207 NW2d 316 (1973), Wynglass v Prudential Life Ins Co, 68 Mich App 514, 516; 242 NW2d 824 (1976), McLaughlin v Consumers Power Co, 52 Mich App 663, 666; 218 NW2d 122 (1974).
"On the other hand, we note that a party opposing the motion for summary judgment based on subrule 117.2(3) must come forward with some proof to establish the existence of a genuine issue of material fact. Durant v Stahlin, [375 Mich 628; 135 NW2d 392 (1965)], supra at 638-639, 655-656; Rizzo v Kretschmer, supra at 372.” Bob v Holmes, 78 Mich App 205, 211-212; 259 NW2d 427 (1977).

A 117.2(3) summary judgment motion tests the evidentiary sufficiency of the opposing party’s case. Therefore, while the opposing party is to be given the benefit of any reasonable doubt as to the existence of an issue of fact, his allegations of the existence of an issue of fact are not sufficient. The opposing party must provide facts supporting his allegations. Factual support may be supplied by affidavits, pleadings, depositions and other documentary evidence.

In the case at bar, plaintiff’s allegations that there exists an issue of fact as to malice are therefore insufficient. We must examine the facts plaintiff relies on to determine if an issue does exist. The pleadings and affidavit of plaintiff set forth the following alleged facts upon which plaintiff relies as raising an issue as to malice: 1) Heldman’s article stated that Recorder’s Court Judge Patrick O’Brien called defense counsel a liar in the presence of the jury, but the transcript showed that the incident occurred before the jury had been selected; 2) Heldman’s article stated that judicial misconduct was an issue which should have been raised on appeal, but Heldman had previously stated to plaintiff that any misconduct was on the part of defense counsel, not the trial judge; 3) the article quotes Peisner as stating that he did not raise the judicial misconduct issue on appeal because he didn’t want to "sling mud”, but that Peisner never made that statement; 4) defendant Detroit Free Press took no precautions to verify the facts as stated by Heldman; 5) the Free Press repeated its allegations in an editorial after Peisner had demanded a retraction and pointed out the alleged factual errors in the article.

(1), (4) and (5) are insufficient by themselves to raise an issue of malice. (1) is insufficient because it is irrelevant whether the statement was made in the presence of the jury or not; the real question is whether the reporter knew whether it was in the presence of the jury or not. (4) is insufficient because the newspaper’s failure to verify facts alone does not indicate malice. See, e.g., St Amant v Thompson, 390 US 727; 88 S Ct 1323; 20 L Ed 2d 262 (1968); New York Times v Sullivan, supra. (5) is insufficient because it is not alleged that any inaccurate statements were repeated in the editorial. In fact, the editorial avoids mention of any allegation that the judge called defense counsel a liar in the presence of the jury or that Peisner stated that he did not raise the misconduct issue on appeal because he didn’t want to "sling mud”.

However, (2) and (3) do raise an issue of fact as to malice. These allegations indicate that Heldman wrote the article criticizing plaintiffs failure to raise an issue on appeal knowing that judicial misconduct was not a meritorious issue. Of course, Heldman in his deposition denied the facts as alleged by plaintiff and we express no opinion on the credibility of the affiants. Plaintiff, however, has raised an issue of material fact and summary judgment under 117.2(3) was therefore improper.

Reversed and remanded for trial. No costs, a public question being involved.

       The majority opinion was joined by three of the six justices participating. Three others concurred in result. Subsequent cases, however, have indicated approval of it. See Weeren v Evening News Association, 2 Mich App 74, 77; 138 NW2d 526 (1965), rev’d on other grounds, 379 Mich 475; 152 NW2d 676 (1967).

       In Weeren, the plaintiffs action was based on the televising by defendant of a film entitled "A Bell for Okinawa”, which was based on a true story of how a leper colony in Okinawa obtained a bell free of charge from a company in West Berlin. Plaintiff claimed to be the general manager of the West Berlin company at the time. It is apparent that plaintiff was not a "public figure”, as defined in Gertz.


text:
    PEOPLE v COBB
    Docket No. 28564.
    Submitted December 21, 1977, at Detroit.
    Decided February 8, 1978.
    James A. Cobb was convicted by a jury in Recorder’s Court of Detroit, Susan D. Borman, J., of the second-degree murder of his wife. Defendant appeals. Defendant contends on appeal that he was prejudiced by the prosecutor’s reference in closing argument to the defendant’s failure to respond when asked by his mother why he had shot his wife, that the trial court erroneously admitted testimony that defendant had shot at the automobile of his wife’s sister on a previous night, and that certain other testimony was improperly admitted as rebuttal testimony. Held:

    1. The prosecutor’s reference in closing argument to defendant’s failure to respond was not prejudicial where all of the testimony regarding the issue had been raised by defense counsel.
    2. The testimony of the sister was properly admitted as probative of the defendant’s intent, notwithstanding that the earlier shooting may be evidence of a separate crime.
    3. The testimony of certain witnesses was properly admitted as rebuttal where it was directed at refuting testimony of the defendant which denied certain facts sought to be established by the prosecution in its case in chief.
    Affirmed.
    1. Criminal Law — Prosecutor’s Comments — Dependant’s Silence — • Prejudice.
    A prosecutor’s reference, in his closing arguments in a trial for murder, to a defendant’s failure to respond when asked by his mother why he had shot his wife was not prejudicial error where all testimony regarding the defendant’s failure to respond had been elicited by defense counsel and the prosecution was not endeavoring to produce evidence of the defendant’s silence in order to prove guilt.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 353, 354, 356. 40 Am Jur 2d, Homicide § 339.

       21 Am Jur 2d, Criminal Law §§ 82, 611, 616. 29 Am Jur 2d, Evidence §§ 266, 363, 366,1091.

       29 Am Jur 2d, Evidence §§ 250, 269.

      2. Criminal Law — Evidence—Prior Acts — Intent—Statutes.
    A defendant’s acts prior to the commission of the charged crime are admissible at trial where those acts are probative of intent, even though those acts may constitute separate crimes (MCLA 768.27; MSA 28.1050).
    3. Criminal Law — Evidence—Rebuttal Testimony.
    Testimony of witnesses which was directed at refuting testimony of a defendant denying certain facts sought to be established in the prosecutor’s case in chief was properly admitted as rebuttal evidence even though that testimony would have been merely cumulative had it been presented prior to the defendant’s denial.

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

      John C. Mouradian, for defendant on appeal.
    Before: Bashara, P. J., and Beasley and D. E. Holbrook, Jr., JJ.
   Per Curiam.

Defendant appeals his conviction by a jury of second-degree murder. MCLA 750.317; MSA 28.549. Finding defendant’s claims of error unavailing, we affirm the conviction.

The record discloses that on the day before the death of defendant’s wife, she and defendant arrived at the residence of defendant’s mother, where they were to stay for the weekend. The following morning defendant’s mother heard a shot. She then heard voices followed by another shot. These events occurred while defendant and decedent were in defendant’s room, which was contiguous to that of his mother.

Defendant’s mother then called to him in an effort to ascertain what had occurred. She testified that defendant stated that he had shot his wife, to which she responded "why, why, why?”. On cross-examination by defense counsel, she stated that defendant gave no response to this latter inquiry.

The direct examination testimony by defendant contradicted that of his mother. According to defendant, he told his mother that he had accidentally shot his wife, and she responded "oh no, oh no”.

In his final closing argument, the prosecutor referred to defendant’s failure to respond to his mother’s inquiry. Defendant contends that this resulted in prejudice entitling him to a new trial. We disagree.

All testimony concerning defendant’s response or failure to respond to his mother’s inquiries was elicited by defense counsel. This is not a case of the genre where the prosecution has endeavored to produce evidence of defendant’s silence to prove guilt, as was condemned in People v Bobo, 390 Mich 355; 212 NW2d 190 (1973). To conclude otherwise would enable the defendant to infect the proceedings with prejudicial error so as to gain a new trial should the verdict be adverse.

The prosecution introduced the testimony of the 1 decedant’s sister. Among other things, she testified that earlier the defendant shot at her automobile. In a subsequent conversation the defendant told the sister that he saw, his wife in that automobile on the night of the occurrence, but denied firing a shot at the vehicle. Defendant maintains that this testimony constituted evidence of a separate crime and, therefore, its admission was reversibly erroneous.

Since the defense of accident was asserted by defendant, his intent was a material issue in the case. Both statute and case precedent support the admissibility of defendant’s prior acts when probative of intent, notwithstanding that they may constitute separate crimes. MCLA 768.27; MSA 28.1050, People v Chism, 390 Mich 104, 116-119; 211 NW2d 193, 198-200 (1973). Our conclusion is that the challenged testimony was relevant to defendant’s intent and, therefore, admissible within the foregoing guidelines.

Defendant also contends that certain witnesses called by the prosecution were erroneously permitted to testify as rebuttal witnesses. However, our review of the record discloses that the testimony of those witnesses was directed at refuting testimony by the defendant denying certain facts sought to be established in the prosecutor’s case in chief. Prior to that denial the challenged testimony would have been merely cumulative in showing that the defendant made threats to kill his wife and was jealous of another man with whom the decedent was friendly. Consequently, we conclude that the testimony in question was properly admitted as rebuttal within the rule of People v Bennett, 393 Mich 445, 449; 224 NW2d 840, 842 (1975).

Affirmed.


text:
    PEOPLE v DUNLAP
    Docket No. 29571.
    Submitted December 14, 1977, at Lansing.
    Decided February 8, 1978.
    Robert W. Dunlap was arrested and charged with armed robbery and assault with intent to do great bodily harm less than murder. Defendant was hospitalized for treatment of gunshot wounds received prior to his arrest and the charges were dismissed. Defendant recovered from his wounds and the charges were reinstated. At his trial defendant moved to suppress evidence of certain statements made by him and to suppress certain evidence seized from the car in which he was riding at the time of his arrest. Motion denied. Defendant was convicted of the charges by a jury in Washtenaw County Circuit Court, Edward D. Deake, J. Defendant appeals contending that the initial dismissal of the charges against him led to a denial of due process of law, that an incriminating statement which he gave to a police officer was not voluntarily, knowingly, and intelligently made because he was under the influence of prescribed narcotic medication at the time, and that the evidence seized at the scene of the arrest was taken in an improper search and seizure. Held:

    The trial court’s denial of the motion to suppress evidence and its finding that the defendant’s statement was voluntary were not clearly erroneous. Dismissal of charges against a defendant recuperating from an injury does not prevent his rearrest, and rearraignment on the charges after his recovery. There was probable cause for the search and seizure at the time of the defendant’s arrest.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error §§ 603-606, 774.

       68 Am Jur 2d, Searches and Seizures §§ 36, 45, 99.
    Search: lawfulness of search of motor vehicle following arrest for traffic violation. 10 ALR3d 314.

       68 Am Jur 2d, Searches and Seizures §§ 42-45, 99

       21 Am Jur 2d, Criminal Law § 317.
    29 Am Jur 2d, Evidence §§ 555-557.
    68 Am Jur 2d, Searches and Seizures § 48.
    What constitutes "custodial interrogation” within rule of Miranda v Arizona requiring that suspect be informed of his Federal constitutional rights before custodial interrogation. 31 ALR3d 565.
    Necessity of informing suspect of rights under privilege against self-incrimination prior to police interrogation. 10 ALR3d 1054.

       21 Am Jur 2d, Criminal Law § 317.

       5 Am Jur 2d, Arrest § 78.

      Affirmed.
    1. Appeal and Error — Criminal Law — Suppression of Evidence— Clearly Erroneous Rule.
    The Court of Appeals will not overturn the ruling of a trial court at a hearing on a motion to suppress evidence unless that ruling is found to be clearly erroneous.
    2. Searches and Seizures — Automobiles—Without Warrant— Probable Cause — Reasonableness of Search — Evidence— Subsequent Events.
    There must be probable cause to believe that a felony has been or is being committed to justify an automobile search without a warrant, and only those facts known to the officers at the time of the search may be considered in passing upon the reasonableness of the search; events subsequent to a seizure of evidence from an automobile may not be considered.
    3. Searches and Seizures — Circumstances—Probable Cause— Criminal Activity Afoot — Justification.
    A police officer has probable cause to conduct a search where circumstances justify his belief that criminal activity is afoot.
    4. Criminal Law — Miranda Rule — On-The-Scene Investigation— Fact-Finding Process — Routine Questioning.
    General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in a fact-finding process is not affected by the holding of Miranda; on-the-scene statements were not taken in violation of the Miranda rule where the circumstances represented a situation of an officer reacting naturally and spontaneously to the scene before him, the questions were a routine means of commencing an investigation and not an inquiry made pursuant to an already launched investigation, and the defendant was not under arrest, was not in foreign surroundings nor in a police-dominated atmosphere.
    5. Criminal Law — Miranda Rights — Waiver—Prescribed Drugs— Totality of Circumstances — Knowing and Intelligent Waiver — Voluntary Waiver.
    The fact that a defendant was under the influence of prescribed drugs does not per se render him incapable of a knowing waiver of his Miranda rights; it is the totality of circumstances which determine whether there was a waiver.
    6. Criminal Law — Constitutional Law — Dismissal of Charges— Hospital Patient — Recovery—Reinstatement of Charges— Due Process.
    Dismissal of charges against a defendant while he was recuperating in a hospital does not prevent rearrest, recharging and rearraignment after recovery; such action does not constitute a violation of due process of law.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and Lynwood E. Noah, Assistant Prosecuting Attorney, for the people.

      Charles E. Miller, for defendant.
    Before: V. J. Brennan, P. J., and D. F. Walsh and H. L. Heading, JJ.

       Detroit Recorder’s Court judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

Defendant Robert Wayne Dunlap was convicted by a jury of armed robbery, contrary to MCLA 750.529; MSA 28.797, and assault with intent to do great bodily harm less than murder, contrary to MCLA 750.84; MSA 28.279. Defendant first assigns as error the trial court’s denial of a defense motion to suppress evidence and statements.

This Court will not overturn a trial court’s ruling at a suppression hearing unless that ruling is found to be clearly erroneous. People v Triplett, 68 Mich App 531, 535; 243 NW2d 665 (1976), lv den, 397 Mich 842 (1976), People v Bunker, 22 Mich App 396, 404; 177 NW2d 644 (1970), People v Smith, 19 Mich App 359, 367; 172 NW2d 902 (1969), People v Stewart, 25 Mich App 204, 206; 181 NW2d 14 (1970), People v Terrell, 77 Mich App 676, 679; 259 NW2d 187 (1977). The suppression hearing in the instant case was addressed both to certain physical evidence which was seized from an automobile in which the defendant was riding, and certain statements made by the defendant and his companion, the driver of the automobile.

To justify a warrantless automobile search, there must be probable cause to believe that a felony has been or is being committed. People v Iverson, 34 Mich App 519; 191 NW2d 745 (1971), People v Strong; 77 Mich App 281, 284; 258 NW2d 205 (1977). In passing upon the reasonableness of the search, only those facts known to the officers at the time of the search may be considered; events subsequent to the seizure may not. People v White, 46 Mich App 195, 198; 207 NW2d 921 (1973).

In the instant case, the police officers involved made a routine stop of the vehicle in which the defendant was riding for a traffic violation. They discovered the defendant, a passenger in the back seat, with a severe gunshot wound to the leg. They arranged to have an ambulance meet them, and upon arriving at the rendezvous point proceeded to ask the pair what had happened. The driver first indicated that the defendant had a gun in the back seat. One officer asked the defendant what had happened and he stated that he shot himself accidentally. The officer then inquired where the gun was and the defendant told him. The officer seized the gun as well as a bag of money and checks and a knife from the glove compartment.

The circumstances justified the police officers’ belief that "criminal activity was afoot”, and they had probable cause, therefore, to conduct the search. People v LaGrange, 40 Mich App 342; 198 NW2d 736 (1972), People v Lillis, 64 Mich App 64; 235 NW2d 65 (1975), People v Parisi, 393 Mich 31; 222 NW2d 757 (1974), Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). Any statements made on the scene at that particular moment were not taken in violation of Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). Rather, the circumstances represented "a situation of an officer reacting naturally and spontaneously to the scene before him. It was a routine means of commencing an investigation and not an inquiry made pursuant to an already-launched investigation. The defendant had not as yet been placed under arrest; neither was he in foreign surroundings nor in a 'police-dominated atmosphere’ as stressed in Miranda.” People v Herman Jackson, 37 Mich App 664, 669; 195 NW2d 312 (1972). General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by the holding of Miranda. Miranda v Arizona, supra at 477-478. Therefore, both the statements taken at that time and the search and seizure of contraband was proper.

Further, the statement made by defendant while in an ambulance on the way to Ann Arbor, though the defendant was likely in custody at that time, was a volunteered statement and therefore not taken in violation of Miranda.

A more difficult situation is presented by defendant’s confession made to police officers in his hospital room some days after being arrested. Defendant had been at Ann Arbor Hospital for several days with 24-hour police guard at his door. His wound was quite serious and he was receiving shots of morphine and phenergan for several days. Late one night, after the defendant had been receiving these shots for approximately four days, an officer came in to speak with the defendant at the defendant’s request. He proceeded to take a full confession from the defendant and also had the defendant sign a waiver card. The police officer who took the statement testified that defendant told him he wanted to confess so that his brother-in-law, the driver of the car, could get out of jail. The defendant asserts that the amount of medication he was receiving as well as the pain and suffering of the wound preclude the possibility that he exercised a knowing and intelligent waiver of his rights. The police officer testified on the contrary that the defendant was in full control of his faculties and voluntarily made the statements. That the defendant was narcotized does not per se render him incapable of a knowing waiver. People v Townsend, 11 Ill 2d 30; 141 NE2d 729 (1957). Rather the totality of the circumstances determine the result. Glenn v Missouri, 341 F Supp 1055 (ED Mo, 1972), Beecher v Alabama, 408 US 234; 92 S Ct 2282; 33 L Ed 2d 317 (1972). The defendant testified that he had no memory of making any confession of any sort. He also testified that he did remember signing something but that he was not aware of its contents.

The trial court determined that the waiver was in fact voluntary, knowing and intelligent. Under the circumstances we cannot say that such finding was clearly erroneous. People v Triplett, supra at 535, People v Stewart, supra at 206.

Defendant next asserts that the dismissal of charges against him while he was recuperating in the hospital denied him due process. When defendant had recovered from his surgery he was rearrested, recharged and rearraigned. We find no violation of due process here. People v Curtis, 389 Mich 698, 706; 209 NW2d 243 (1973), People v Clark, 43 Mich App 476, 480; 204 NW2d 332 (1972), People v McCartney, 72 Mich App 580, 585; 250 NW2d 135 (1976).

Affirmed.


text:
    PEOPLE v GARRETT
    1. Criminal Law — Self-Defense—Duty to Retreat — Instructions to Jury — Harmless Error.
    There is no duty to retreat in the face of an attack when it occurs in the home where both the assailant and the assailed have an equal right to be; an instruction to the jury that there is such a duty is an erroneous instruction, although such an error can be harmless.
    2. Criminal Law — Appeal and Error — Harmless Error — Standards — Reasonable Juror — Reasonable Doubt.
    The standard for judging whether an error is harmless is a stringent one; however, a conviction must stand where the proof, aside from the taint of error, was so overwhelming that all reasonable jurors would find guilt beyond a reasonable doubt.
    3. Criminal Law — Evidence—Instructions to Jury — Self-Defense —Duty to Retreat — Basis for Acquittal.
    A trial judge’s instruction on the duty to retreat which injects an issue not supported by the evidence does not constitute reversible error where the instruction provided a basis for a defendant’s acquittal rather than for conviction.
    Appeal from Recorder’s Court of Detroit, James A. Hathaway, J.
    Submitted January 10, 1978, at Detroit.
    (Docket No. 31057.)
    Decided March 8, 1978.
    References for Points in Headnotes

       6 Am Jur 2d, Assault and Battery §§ 75-77.
    40 Am Jur 2d, Homicide §§ 167, 168, 520.
    Homicide: Extent of premises which may be defended without retreat under right of self-defense. 52 ALR2d 1458.
    Homicide: Duty to retreat where assailant and assailed share same living quarters. 26 ALR3d 1296.

       5 Am Jur 2d, Appeal and Error §§ 778, 779, 787, 788, 798.

       5 Am Jur 2d, Appeal and Error §§ 784, 792, 805.

      Richard Garrett, Jr., was convicted of second-degree murder. Defendant appeals.
    Affirmed.

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

      Stephen Fishman (by Eliot S. Zipser), for defendant on appeal.
    Before: Allen, P. J., and M. J. Kelly and D. E. Holbrook, Jr., JJ.
   Per Curiam.

Defendant was charged with first-degree murder contrary to MCLA 750.316; MSA 28.548 in the shooting death of his girl friend Doris Fowler, at their common residence in Detroit. A jury trial was had and defendant was convicted of second-degree murder. He appeals as of right.

While the transcript is voluminous the evidence does not contain any major inconsistencies. Defendant admitted, and the other testimony corroborated the facts, that he and his girl friend had been bickering all day. In the late afternoon this apparently came to a head when for no apparent reason he ran upstairs and grabbed a .22 rifle and she went in the kitchen and returned with a kitchen knife.

Defendant’s testimony shows that in the narrow confines of their small house he fired two "warning shots” into the ceiling to ward off the decedent. He then chased her with the gun and fired several shots into her back as she ran and tried to escape out the front door which was locked with a key from the inside and was the only means of egress from the dwelling.

Defendant claims the trial judge erred by instructing the jury that defendant had a duty to retreat if he could have safely done so in order to establish the defense of self-defense. The well established law is that there is no duty to retreat in the face of an attack when it occurs in the home where both the assailant and the assailed have an equal right to be, and that the instruction given was erroneous. People v Lenkevich, 394 Mich 117; 229 NW2d 298 (1975).

Under most circumstances the instruction given would have been prejudicial error. However, in the case at bar we are convinced beyond a reasonable doubt said error was harmless. That such error can be harmless was recognized by this Court in People v Moore (On Rehearing), 77 Mich App 134, 136; 258 NW2d 164 (1977). The standard for judging whether error is harmless is a stringent one; however, if the proof, aside from the taint of error, was so overwhelming that all reasonable jurors would find guilt beyond a reasonable doubt, then the conviction must stand. People v Christensen, 64 Mich App 23, 33; 235 NW2d 50 (1975), People v Roberson, 55 Mich App 413, 421; 222 NW2d 761 (1974), People v Swan, 56 Mich App 22, 31; 223 NW2d 346 (1974).

The evidence in the present case compellingly establishes that the defense of self-defense was not available to defendant for failure to present any evidence whatsoever that the use of deadly force appeared to defendant to be necessary. No reasonable juror could have found, absent the instructional taint, that defendant acted in self-defense.

This Court in People v Moore, supra, at 136, recognized that there was no prejudice to the defendant where giving an "instruction on self-defense, although erroneous on the aspect of retreat, was, if anything, beneficial to the defendant”. Where, as here, the instruction provided a basis for defendant’s acquittal, rather than for conviction, the injection of an issue not supported by the evidence does not constitute reversible error.

Affirmed.


author: Per Curiam. D. E. Holbrook, P. J.

text:
    PEOPLE v WEBB
    Docket No. 27284.
    Submitted October 12, 1977, at Detroit.
    Decided March 21, 1978.
    Leave to appeal applied for.
    Defendant Robert Lee Webb and a codefendant, one Henderson, were charged with two counts of first-degree murder. Prior to their joint trial defendant Webb filed a motion to sever. The motion was denied. Defendant was convicted of the charged offenses by a jury in Detroit Recorder’s Court, Joseph E. Maher, J. The defendant appeals. Held:

    A decision to try codefendants jointly or separately is in the discretion of the trial court and, where a motion to sever has been denied, it must be shown that the joint trial worked to prejudice the rights of at least one of the defendants before an abuse of discretion can be found. A defendant is entitled to a separate trial from a codefendant who, it appears, may testify to exculpate himself and incriminate the defendant seeking a separate trial. A defendant’s conviction should be reversed and the matter remanded where the trial court denied the motion to sever and the defendant seeking severance did have his right to a fair trial prejudiced by the joint trial.
    Reversed and remanded.
    Judge D. E. Holbrook dissented. He would hold that the decision to hold joint or separate trials was discretionary with the trial court; a supporting affidavit defining the inconsistencies between the defenses of the parties was required before an abuse of discretion could be found.
    Opinion of the Court
    1. Criminal Law — Trial—Joinder—Discretion of Trial Court— Severance — Showing of Prejudice.
    A decision to try codefendants jointly or separately is in the discretion of the trial court; to find an abuse of discretion where a trial court has denied a motion for severance, it must be shown that the joint trial worked to prejudice the rights of at least one of the defendants.

      References for Points in Headnotes

       75 Am Jur 2d, Trial §§ 17-24.

       75 Am Jur 2d, Trial §§ 20, 21, 24.
    Antagonistic defenses as ground for separate trials of codefendants in criminal cases. 82 ALR3d 245.

       5 Am Jur 2d, Appeal and Error §§ 727, 805.

      2. Criminal Law — Trial—Joinder—Severance.
    A defendant is entitled to a separate trial from a codefendant who, it appears, may testify to exculpate himself and incriminate the defendant who seeks a separate trial.
    Dissent by D. E. Holbrook, P. J.
    3. Criminal Law — Trial—Joinder—Severance—Motions—Discretion of Trial Court — Supporting Affidavits — Inconsistencies Between Defenses.

      A decision whether to hold joint or separate criminal trials is discretionary with the trial court; a supporting affidavit deffning the inconsistencies between the defenses of the parties is required before an abuse of discretion will be found.

    4. Appeal and Error — Ruling—Correct Result.

      A trial judge’s ruling calling for a correct result will not be reversed even though premised upon a wrong reason.

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

      Solomon & Stern, for defendant on appeal.
    Before: D. E. Holbrook, P. J., and N. J. Kaufman and J. E. McDonald, JJ.

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

   Per Curiam.

Defendant Robert Lee Webb and a codefendant, one Henderson, were charged with two counts each of first-degree murder, MCLA 750.316; MSA 28.548. The date of the offense was March 10, 1975, in the City of Detroit.

On September 24, 1975, defendant filed a motion to sever the trials of himself and Henderson, claiming that the positions were antagonistic. The motion was heard and denied on October 7, 1975. Trial commenced on November 24, 1975, in Recorder’s Court and continued until December 5, 1975.

On December 12, 1975, the jury returned a verdict of guilty on both counts of the charged offense in regard to defendant. The jury was un- ' able to reach any verdict as to Henderson. On December 23, 1975, defendant was sentenced to two concurrent terms of life imprisonment. Appellate counsel having been appointed, defendant appeals as of right.

At the beginning of the trial, both defendants renewed their respective motions to sever and these motions to sever were again denied.

The decision to try codefendants jointly or separately is in the discretion of the trial court. MCLA 768.5; MSA 28,1028. To find an abuse of discretion where a trial court has denied a motion for severance, it must be shown that the joint trial worked to prejudice the rights of at least one of the defendants.

In the present case, defendant claims that the court abused its discretion in denying a motion to sever because the defense theories of the codefendants were antagonistic. In particular, defendant claims that his codefendant’s theory of the case was that defendant alone committed the offense, making the codefendant a victim of circumstances. Defendant contends that he should not have been required to defend against the accusations of his codefendant.

The case law supports defendant’s position. In People v Hurst, 396 Mich 1; 238 NW2d 6 (1976), the Michigan Supreme Court dealt squarely with the question of a joint trial where the codefendants accuse each other of the crime. The Hurst Court stated:

"The general rule is that a defendant does not have a right to a separate trial. Joinder of defendants for a trial is usually within the discretion of the court. However, '[a] severance should be granted when the defense of several defendants jointly indicted are antagonistic to each other’. 5 Wharton’s Criminal Law and Procedure, § 1946; Anno: Right to severance where two or more persons are jointly accused, 70 ALR 1171.
"The commentary accompanying the American Bar Association Standards Relating to Joinder and Severance states: 'it has long been the view that defendants joined for trial should be granted a severance whenever their defenses are antagonistic to each other.
" 'A separate trial will be ordered where the defenses of the accused are antagonistic * * * .’ State v Klein, 97 Conn 321; 116 A 596, 597 (1922).
" 'Where defenses are antagonistic and one defendant accuses the other, thus making it impossible for the defendants asking for a severance to have a fair trial, the severance should be granted.’ People v Meisenhelter, 381 Ill 378; 45 NE2d 678, 684 (1942).” (Footnote omitted.) 396 Mich at 6.

Quoting from People v Braune, 363 Ill 551, 557; 2 NE2d 839, 842 (1936), the Hurst Court set forth the prejudicial impact of a joint trial involving antagonistic defendants:

" 'The trial was in many respects more of a contest between the defendants than between the People and the defendants. It produced a spectacle where the People frequently stood by and witnessed a combat in which the defendants attempted to destroy each other. Any set of circumstances which is sufficient to deprive a defendant of a fair trial if tried jointly with another is sufficient to require a separate trial.’ ” 396 Mich at 7.

In State v Thibodeaux, 315 S2d 769 (La, 1975), also cited with approval in Hurst, supra, the Louisiana Supreme Court reversed the denial of a pretrial motion for severance where it appears from the arguments of counsel that the defense theories would conflict:

"The only evidence adduced at the hearing held on the motion was the testimony of counsel for Thibodeaux who testified that the gravamen of his intended defense of Thibodeaux would be to establish that the contraband forming the basis of the prosecution, which was found in an apartment shared by the defendants, was the sole property of Sallettes and that Thibodeaux had no knowledge of its existence.
"Thus, the thrust of Thibodeaux’s defense is directly accusatory of Sallettes, requiring him, in effect, to stand trial before two accusers, the state and Thibodeaux. Under these circumstances, justice requires that the joint charge be severed to allow the separate trial of each defendant.” 315 S2d at 770-771.

The record in the present case reveals that the trial court was aware of the claimed antagonism of the defense theories in süfíicient time to have granted defendant’s motion for severance. The motion to sever was first made prior to trial and this motion was heard and denied on October 7, 1975.

The motion was raised again by defendant at the start of the joint trial.

When the motion was renewed at the start of the trial, in response to the court’s inquiry as to whether the reasons were any different from those contained in the motion prior to trial, the following occurred:

"MR. ARDUIN [defense attorney]; No, your Honor, but I do want to tell the Court that these defenses, your Honor, are inconsistent and they are antagonistic, and I believe, your Honor, because of the inconsistencies of the defense, that my client will not be receiving a fair trial if your Honor has us go ahead and try this case together.
"That’s my motion, your Honor.
"THE COURT: That’s a luxury that’s pretty hard to aiford in this court, as busy as we are.”

The codefendant also requested the severance of these trials and the court’s response was that it thought it would be a fair trial if both parties were tried jointly.

A reading of this discussion indicates that the trial court was put on notice of a potential conflict between the defendants and this conflict became clearly apparent as the defendants began to present their cases and continued throughout the argument and testimony. The trial thus became the type of prejudicial confrontation between codefendant contemplated by the Court in Hurst and Thibodeaux. The trial court, having been advised of this upcoming conflict, erred in failing to grant defendant’s motion to sever the trial.

Defendant also alleges misconduct on the part of the jurors and error on the part of the court for allowing testimony of a key witness to be recreated after the transcript of that testimony could not be prepared. Defendant also claims that he was denied his right to appeal for a portion of the transcript could not be produced and the court held a hearing to reconstruct the testimony and settle the record. Since none of these last enumerated items are apt to reoccur at the subsequent trial of this defendant, it is not necessary to write further concerning any of the other claimed reasons for appeal.

The denial of the motion to sever was prejudicial error. The conviction of the defendant is reversed and the matter is remanded for trial.

D. E. Holbrook, P. J.

(dissenting). This writer is constrained to respectfully disagree with the result required by the majority in their opinion. It appears to this writer that defendant-appellant received a fair trial and that no prejudice resulted to him in being tried with codefendant Henderson. Defendant-appellant Webb had been a guest of Henderson in his apartment for several weeks before the two murders, which are the subject of this criminal proceeding, occurred. Both men had girl friends living with them in the apartment. Webb’s girl friend left the apartment on March 8, 1975, two days before the murders. There was testimony (not Henderson’s) in the case to indicate that Webb thought Big Jim was hiding her. Big Jim was one of the victims of the murder. Big Jim and the other victim were in Big Jim’s apartment on the first floor where the murders occurred and Henderson’s apartment was on the third floor of the same apartment building.

On the morning of the offense, March 10, 1975, Webb and Henderson went downtown to get Webb’s two welfare checks. After obtaining the checks, Webb cashed one check and purchased a shotgun for $48 at a pawnshop. Then both men had a drink at a bar and visited a friend of Webb. It is unclear where they obtained the shells for the shotgun, but evidently they had them for when they arrived at the apartment Webb had the shotgun and Henderson had a sack of shells. Previous to returning to the apartment Webb purchased a bottle of gin or vodka, took it with him to Henderson’s apartment and drank it with Patricia Young, a friend who came over from another apartment in the same building. Neither Henderson nor his girl friend drank any of it. There was no dispute of the fact that the gun was at the apartment and that Webb had it. Webb testified that he bought the gun for his father. He further testified that about 1:30 in the afternoon of the day in question, he left the apartment and went to his mother’s home quite a distance away — that at the time he arrived at his mother’s, the police were there and so he stopped at a friend’s home nearby and stayed there until the police left. That night he tried to return to Henderson’s apartment to get the check that he had not cashed and had left there. A friend of his drove him over to the apartment and when they arrived someone shot at the passenger side where Webb was sitting, they then left and did not return. Webb’s defense was simple — he was not there, he did not do it, he did not know anything at all about the shootings. The shootings took place about 2:30 p.m., about an hour after Webb said he left the apartment. Webb further testified he sold the shotgun for $50 to a man whose name he doesn’t know. He did not describe him and did not know where he lived or anything else about him. He met him in a bar.

Henderson testified and verified Webb’s account with a few variations concerning the activities of the two of them that day up until 1:30 p.m. Henderson, however, corroborated other witnesses’ testimony to the effect that Webb was there before and just after the shootings. Henderson did not place Webb in the apartment where the shootings occurred, nor did he witness the shootings. One of the witnesses testified she heard Webb say he was going to shoot Big Jim (one of the victims). There was considerable evidence that tended to show that Webb was present in the apartment building at the time of the shootings. Webb’s counsel cross-examined Henderson as well as all the res gestae witnesses. The jury was able to treat fairly defendant Webb concerning all the facts of the case brought out in the testimony and properly presented before the jury. All of defendant Webb’s claims and theories were fully explored and explained by his attorney.

It is true that the trial judge only had the motion phrased in conclusory language and did not have all these facts before him when he denied the motion of defendant Webb to sever his trial.

The motion of defendant Webb is as follows:

"Now comes the above named defendant by M. Arthur Arduin his Attorney and moves this Honorable Court to sever this defendant’s case for the following reasons:
"1. That the defendant is charged with the offense of 2 - first degree murders.
"2. That the other defendant in this case is one Johnny Lee Henderson.
"3. That the interests of this defendant are directly opposite to those of his co-defendant, and that although his co-defendant is charged with the killing of the two persons named in the information, this co-defendant, Johnny Lee Henderson is trying to put the blame on this defendant although defendant says he is innocent of this charge.
"4. That such a conflict of interests rrequirs [sic] that this defendant be tried separately, so that he can obtain a fair trial.
"5. That is [sic] he is forced to go to trial with this co-defendant, the jury might come to a conclusion that this co-defendant is guilty, then this defentant [sic] could also be inferred to be guilty, which guilt could be inferred by defendant’s mere presencee [sic]” (Emphasis supplied.)

This motion was conclusory in nature and not in accord with the facts as presented to the jury. Defendant Webb should have spelled out in an affidavit the conflict, if any, between him and defendant Henderson. This he did not do.

Also, in connection with the motion to sever the trial of defendant Webb, we note with interest that his attorney filed a motion to endorse additional res gestae witnesses — those who were not listed on the information but who Webb claimed were res gestae witnesses. Webb desired these witnesses to appear and testify and the motion to endorse the res gestae witnesses was granted by the trial court and the witnesses were subpoenaed to testify.

The opinion of the majority bases their reversal and grant of a new trial on the fact that the trial court improperly denied the motion to sever. People v Hurst, 396 Mich 1; 238 NW2d 6 (1976).

The basis for this writer’s dissent is based on the ruling of a similar case in our Court. In People v Smith, 73 Mich App 463, 468-469; 252 NW2d 488 (1977), the Court in part stated:

"The decision whether to hold joint or separate trials is discretionary with the trial court. MCLA 768.5; MSA 28.1028. People v Hurst, 396 Mich 1, 11; 238 NW2d 6 (1976). In moving the court for separate trial, defendant must 'show that his substantial rights will be prejudiced by a joint trial’. People v Scott, 61 Mich App 91, 94; 232 NW2d 315 (1975). See People v Schram, 378 Mich 145, 156; 142 NW2d 662 (1966). A supporting affidavit defining the inconsistencies between the defenses of the parties is required before an abuse of discretion will be found. People v Mullane, 256 Mich 54, 56; 239 NW 282 (1931).
"No affidavits were attached to defendants’ motions. Nor did the statements contained in defendants’ motions adequately assert 'the full scope of the antagonism between his and his co-defendant’s defenses’. People v Markham, 19 Mich App 616, 635; 173 NW2d 307 (1969). The only substantial claim made by defendants Gilmore and Smith is that they could not call their co-defendants to testify in a joint trial; and this claim is largely vitiated by decisions indicating that co-defendants, even if tried separately, cannot be compelled to testify against their will. People v Merritt, 396 Mich 67, 84, n 18; 238 NW2d 31 (1976); People v Van Alstine, 57 Mich 69, 82; 23 NW 594 (1885). In the same vein, authority exists to answer defendant Holloway’s allegation that he was denied his right of confrontation in a joint trial where he was not allowed to cross-examine his co-defendants. State v Moore, 101 NW2d 579, 587 (ND, 1960). We find no abuse in the trial court’s denial of the respective motions.” (Footnote omitted.) (Emphasis supplied.)

As in People v Smith, supra, no affidavits were attached to the motion of defendant Webb for severance. Defendant’s motion to sever is a conclusory statement without facts, and claimed that codefendant Henderson might blame appellant for the murders. Codefendant Henderson did testify as to details of both his and appellant’s activities before and after the murders. Henderson did not see appellant murder anyone, did not see Webb in Big Jim’s apartment that day, also appellant had thorough cross-examination of his codefendant Henderson. Defendant-appellant was not required to present a defense before an antagonistic stranger, rather defendant had cross-examination of a codefendant well known to him. In fact, defendant and codefendant occupied the same apartment. Defendant Webb cross-examined Henderson right along with all other res gestae witnesses, and they all provided some circumstantial evidence of both appellant’s and his codefendant’s guilt.

Defendant-appellant did not properly claim any substantial right as grounds for the motion for severance, nor has appellant shown prejudice to any substantial right.

It appears to this writer that defendant-appellant was desirous of having all the res gestae presented before the jury. He made a motion to this effect, which was granted. It may be that he thought he would have a better chance at acquit- ' tal if all the res gestae were presented. In this regard this writer would agree. At least all the facts would be presented to the jury.

Now it is true that the trial judge stated in refusing the motion to sever as follows:

"That’s a luxury that’s pretty hard to afford in this court, as busy as we are.”

This writer admits that that reason was not good. However, the trial judge also stated in refusing the motion to sever as follows:

"I think it would be to his advantage to have it tried, if that’s the case, in front of a Jury that can hear everything at once. If there are two separate Juries who can’t see one man and can only see the one man that’s in front of them and not the other, then they’ve got a chance to observe both.
"I think it would be a fairer trial this way than it would be.
"For the reason you gave, I’ll deny your motion.”

A trial judge’s ruling calling for a correct result will not be reversed even though premised upon a wrong reason. Williams v The Detroit Edison Co, 63 Mich App 559; 234 NW2d 702 (1975), Przbylinski v Standard Pressed Steel Co, 62 Mich App 461; 233 NW2d 614 (1975).

In accord with People v Smith, supra, and for the reasons herein stated whereby it is shown that defendant Webb had a fair trial with all the res gestae witnesses presented to the jury and no prejudice resulting to him, this writer would rule that the trial judge’s denial of the motion to sever was proper.

The defendant has raised other issues and claims of error in this appeal which do not merit discussion or decision.

This writer votes to affirm the conviction.