author: Per Curiam. V. J. Brennan, P.J.

text:
    PEOPLE v EVANS
    Docket No. 78-474.
    Submitted April 16, 1979, at Lansing.
    Decided November 21, 1979.
    Pearl L. Evans was convicted, on her plea of guilty, of larceny in a building and of being a third felony offender, Bay Circuit Court, Leon R. Dardas, J. The particular crime of which she was convicted was the theft of a $1 item from a retail store. Defendant appeals, alleging among other things that she was denied due process and equal protection because the prosecutor charged her with larceny in a building, a felony, rather than with larceny under $100, a misdemeanor. Held:

    The prosecutor has the discretion to choose under which of several applicable statutes a prosecution will be instituted. In the case of a shoplifter, a prosecutor has the discretion to charge the defendant with either larceny in a building or simple larceny. The prosecutor did not abuse this discretion, given the facts of this case, where the defendant clearly qualified as a habitual offender.
    Affirmed.
    V. J. Brennan, P.J., dissented. He would hold that petty shoplifting, no matter how frequently performed, does not amount to a felony, and that the prosecutor abused his discretion by charging the defendant with a felony. He would reverse.
    Opinion of the Court
    1. Criminal Law — Prosecuting Attorneys — Discretion.
    A prosecuting attorney has the discretion to choose under which statute a prosecution will be instituted where more than one statute is applicable to the case.
    2. Criminal Law — Prosecuting Attorneys — Discretion.
    A prosecuting attorney may not exercise his or her discretion in a manner that would violate constitutional principles.
    References for Points in Headnotes

       63 Am Jur 2d, Prosecuting Attorneys §§ 26, 27.

       50 Am Jur 2d, Larceny §§ 49, 50.
    Validity, construction and effect of statutes establishing shoplifting as specific criminal offense. 90 ALR2d 811.

      3. Larceny — Shoplifting — Larceny in a Building — Simple Larceny.
    A prosecuting attorney did not abuse his discretion by charging a shoplifter with the greater offense of larceny in a building instead of simple larceny where the shoplifter had been convicted four times within a short time for theft-type offenses.
    Dissent by V. J. Brennan, P.J.
    4. Criminal Law — Shoplifting — Larceny — Prosecuting Attorneys — Discretion.

      Petty shoplifting, no matter how frequently performed, does not amount to a felony, and a prosecuting attorney who charges a defendant with the felony of larceny in a building for the theft of a $1 item abuses the discretion of his office.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George B. Mullison, Prosecuting Attorney, and Nancy L. Goodale, Assistant Prosecuting Attorney, for the people.

      Kim Robert Fawcett, Assistant State Appellate Defender, for defendant on appeal.
    Before: V. J. Brennan, P.J., and Bronson and Cynar, JJ.
   Per Curiam.

The defendant was arrested for the theft of a scarf from a Sears store in Bay City. Pursuant to a plea agreement by which she was to be charged as a third rather than as a fourth offender, she pled guilty to the charged offense of larceny in a building, MCL 750.360; MSA 28.592, and to the charge of being a third offender under the habitual offender act, MCL 769.12; MSA 28.1084. She was sentenced to a term of from three to eight years in prison, and appeals as of right.

Defendant raises several issues in her brief, one of which merits discussion.

Defendant argues that she was denied her guarantees of due process and equal protection under the Michigan and Federal Constitutions because the prosecutor, in the exercise of his broad charging discretion, charged her with larceny in a building, a felony, instead of larceny under $100, a 90-day misdemeanor.

The prosecutor is a constitutional officer whose duties are provided by law. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683; 194 NW2d 693 (1972). He is the chief law enforcement officer of the county from which he is elected, not the police, the newspapers, or the courts. As the civilian head of the county’s law enforcement efforts, the final decisions are his, and in the end, it is he who must accept the responsibility for his decisions at the polls. Consistent with this role, prosecuting attorneys have discretion in Michigan to choose under which of the several potentially applicable statutes a prosecution will be instituted. This discretion may serve many useful purposes. The same offense can be committed under widely divergent circumstances, for different reasons, and by persons with varying degrees of previous contact with the courts. By allowing the prosecutor wide latitude in deciding who is charged and with what crime, an essential task is performed before the matter reaches the courts. See, The President’s Commission on Law Enforcement and Administration of Justice — Task Force Report: The Courts, pp 5-8. Even critics of this system do not argue so much for an elimination of the prosecutor’s discretion (a particular goal of the continental legal systems) as they do for limited judicial review of the exercise of that discretion. See, e.g., Hutcherson v United States, 120 US App DC 274; 345 F2d 964 (1965) (Bazelon, C.J., concurring in part, dissenting in part), Davis, Discretionary Justice, pp 188-214.

Despite the breadth and usefulness of this discretion, it is not without its limits. Certainly, the prosecutor may not exercise his or her discretion in a manner that would violate constitutional principles. People v Birmingham, 13 Mich App 402, 407; 164 NW2d 561 (1968). The United States Supreme Court recognized this restraint on prosecutorial discretion in Bordenkircher v Hayes, 434 US 357, 365; 98 S Ct 663; 54 L Ed 2d 604 (1978):

"There is no doubt that the breadth of discretion that our country’s legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise.” (Footnote omitted.)

Michigan has additionally recognized that the courts are able to exercise a limited judicial review for the correction of abuse of prosecutorial discretion. Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 121; 215 NW2d 145 (1974), People v Curtis, 389 Mich 698; 209 NW2d 243 (1973), People v Matulonis, 60 Mich App 143, 149; 230 NW2d 347 (1975), People v Ryan, 11 Mich App 559; 161 NW2d 754 (1968).

In order to sustain the position that the statutory scheme which allows prosecutors discretion to charge "shoplifters” with either a felony or a misdemeanor is constitutionally infirm, defendant would have to show that it unreasonably or arbitrarily discriminates against similarly situated persons. On several previous occasions, however, this Court has upheld the prosecutor’s discretion to charge a "shoplifter” with the greater offense of larceny in a building instead of simple larceny. People v Shepherd, 63 Mich App 316; 234 NW2d 502 (1975), People v Bohm, 49 Mich App 244; 212 NW2d 61 (1973), People v Graves, 31 Mich App 635; 188 NW2d 87 (1971), People v Jackson, 29 Mich App 654; 185 NW2d 608 (1971). We are not convinced that this position is wrong. The existence of at least two offenses covering the defendant’s conduct in this case gives room for the beneficial exercise of the prosecutor’s charging discretion. For example, with regard to this particular defendant, we note ample rational justification for charging her with the greater offense. At the time she was prosecuted for the theft involved in this case, defendant had already been convicted four times within a short period for theft-type offenses. This sort of consideration has found approval in the ABA Project on Standards for Criminal Justice, The Prosecution Function, Standard 3.9, the commentary to which states:

"Nor is it desirable that he [the prosecutor] prosecute all crimes at the highest degree available. Necessarily crimes are defined in broad terms that encompass situations of greatly differing gravity. Differences in the circumstances under which the crime took place, the motives or pressures activating the offender, mitigating factors of the situation or the offender’s age, prior record, general background, his role in the offense, and a host of other particular factors require that the prosecutor view the whole range of possible charges as a set of tools from which he must carefully select the proper instrument to bring the charges warranted by the evidence. In exercising discretion in this way, the prosecutor is not neglecting his public duty or discriminating among offenders. The public interest is best served and even-handed justice best dispensed not by a mechanical application of the 'letter of the law’ but by a flexible and individualized application of its norms through the exercise of the trained discretion of the prosecutor as an administrator of justice.”

Defendant has referred us to several cases from other jurisdictions that address the constitutional problems involved here. We find none of these cases exactly applicable to the statutory situation we are confronted with in this case. Additionally, many of the cases were resolved on grounds of statutory construction rather than on constitutional interpretation. Granting, however, that some of the discussions could be said to relate to the circumstances of this case, we are not convinced that the statutory scheme we discuss here is incapable of being constitutionally applied. It is possible that in exercising the discretion accorded the prosecutor, constitutional abuses could occur. A scheme may itself be constitutional, yet be applied in an unconstitutional manner. Yick Wo v Hopkins, 118 US 356; 6 S Ct 1064; 30 L Ed 220 (1886), People v Plamondon, 64 Mich App 413, 426-427; 236 NW2d 86 (1975), rev’d on other grounds sub nom People v Drielick, 400 Mich 559; 255 NW2d 619 (1977), cert den 434 US 1047; 98 S Ct 893; 54 L Ed 2d 798 (1978). The defendant has not made out such a claim in this case.

We are also unable to find any abuse of prosecutorial discretion in this case. We are aware of the fact that the Bay County prosecuting attorney’s office has on previous occasions been cautioned by this Court about "overcharging”. See People v Feldman, 87 Mich App 157; 274 NW2d 1 (1978), People v Carmichael, 86 Mich App 418; 272 NW2d 667 (1978). This sort of consideration is relevant in determining whether an abuse has occurred. We find, however, that the record in this case adequately supports the prosecutor’s exercise of his charging discretion.

We emphasize that our finding no abuse of prosecutorial discretion is limited to the particular facts of this case. The offense occurred in a public building, and was committed by a person who clearly qualifies as a habitual offender. The prosecutor’s charging discretion, as broad as it is, is not without limitations and is clearly capable of being abused. In an appropriate case, we would not hesitate to find that such an abuse had occurred.

We have examined defendant’s other claims and find no reversible error.

Affirmed.

V. J. Brennan, P.J.

(dissenting). I respectfully disagree with my colleagues. The "broad discretion” of the county prosecutor and the limitations thereon pale to insignificance upon consideration of one salient fact. This defendant was sentenced to 3 to 8 years in prison for stealing a $1 Sears scarf. This writer cannot in good conscience tolerate the abuse of legal process demonstrated by the prosecutor at bar.

The Legislature has set forth crimes and penalties establishing guidelines for law enforcement agencies and the courts. The habitual offender statute was enacted to prevent dangerous felons from continually visiting upon society their abuses. Petty shoplifting, no matter how frequently performed, does not amount to a felony. The penalties for shoplifting as prescribed by the Legislature are a sufficient deterrent. A prosecutor who believes otherwise and charges accordingly abuses the discretion of his office. It is not for the prosecutor to elevate such a crime to a 4-year felony. Such punishment does not fit the crime.

The majority is severing themselves from the abuse allowed below by stating "it is he [the prosecutor] who must accept the responsibility for his decisions at the polls”. I disagree. It is we who review defendant’s appeal and render this decision who must accept responsibility for allowing this. For want of a more effective means of properly disposing of this matter, I must dissent.

I would reverse.

       MCL 750.360; MSA 28.592, which states:
      "Any person who shall commit the crime of larceny by stealing in any dwelling house, house trailer, office, store, gasoline service station, shop, warehouse, mill, factory, hotel, school, barn, granary, ship, boat, vessel, church, house of worship, locker room or any building used by the public shall be guilty of a felony.”

       MCL 750.356; MSA 28.588, which states:
      "Any person who shall commit the offense of larceny, by stealing, of the property of another, any money, goods or chattels, or any bank note, bank bill, bond, promissory note, due bill, bill of exchange or other bill, draft, order or certificate, or any book of accounts for or concerning money or goods due or to become due, or to be delivered, or any deed or writing containing a conveyance of land, or any other valuable contract in force, or any receipt, release or defeasance, or any writ, process or public record, if the property stolen exceed the value of $100.00, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by fine of not more than$2,500.00. If the property stolen shall be of the value of $100.00 or less, such person shall be guilty of a misdemeanor." (Emphasis added.)

        Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115; 215 NW2d 145 (1974) [Genesee II], Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972) [Genesee I], People v Lombardo, 301 Mich 451; 3 NW2d 839 (1942), People v Thrine, 218 Mich 687; 188 NW 405 (1922), People v Mire, 173 Mich 357; 138 NW 1066 (1912), People v LaRose, 87 Mich App 298; 274 NW2d 45 (1978),
        People v Heber, 42 Mich App 582; 202 NW2d 571 (1972), People v Eineder, 16 Mich App 270; 167 NW2d 893 (1969), People v Birmingham, 13 Mich App 402; 164 NW2d 561 (1968), People v Byrd, 12 Mich App 186, 197; 162 NW2d 777 (1968) (Levin, J., concurring), People v Ryan, 11 Mich App 559; 161 NW2d 754 (1968).
      Additionally, the United States Supreme Court has recognized the broad discretion that rests in the prosecutor’s charging decision. Bordenkircher v Hayes, 434 US 357; 98 S Ct 663; 54 L Ed 2d 604 (1978), Imbler v Pachtman, 424 US 409, 424; 96 S Ct 984; 47 L Ed 2d 128 (1976).

         The Michigan Legislature has also provided for judicial review of the prosecutor’s decision not to prosecute:
      "If the prosecuting attorney determines in a case other than a major controlled substance offense that an information ought not be filed, he shall make and subscribe a statement, in writing, containing his reasons in fact and in law, for not filing an information in the case and shall file that statement with the clerk of the court at and during the term of the court at which the offender is held for appearance. The court may examine the statement, together with the evidence filed in the case and if, upon examination, the court is not satisfied with the statement, the prosecuting attorney shall be directed by the court to file the proper information and bring the case to trial.” MCL 767.41; MSA 28.981.

       The position taken by these cases was disputed in People v Carmichael, 86 Mich App 418; 272 NW2d 667 (1978). Given the actual disposition of the case, however, the language must be considered dicta.

       The record reflects the following history of defendant’s convictions:
      Year Location Offense
      1974 Bay County Unarmed robbery
      1975 Bay County Attempting to fraudulently obtain money under false pretenses
      1975 Bay County Attempted forgery
      1975 Federal District Court, Eastern District of Michigan, Northern Division Possession of stolen mail

         State v Hagge, 224 NW2d 560 (ND, 1974), State v Zornes, 78 Wash 2d 9; 469 P2d 552 (1970), State v Collins, 55 Wash 2d 469; 348 P2d 214 (1960), State v Pirkey, 203 Ore 697; 281 P2d 698 (1955). See, also, Berra v United States, 351 US 131, 135; 76 S Ct 685; 100 L Ed 1013 (1956) (Black, J., dissenting), Comment: Prosecutorial Discretion in the Duplicative Statutes Setting, 42 U Colo L Rev 455 (1971).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v ABEND
    Docket No. 78-812.
    Submitted October 4, 1979, at Grand Rapids.—
    Decided November 21, 1979
    Defendant, Raymond Abend, was convicted, on his plea of nolo contendere, of second-degree murder and felony-firearm in the Recorder’s Court of Detroit, Joseph A. Gillis, J. Defendant appeals alleging that the Legislature intended to punish only illegal possession of a firearm under the felony-firearm statute and that, since his initial possession was lawful, the statute did not apply to his case. Held:

    The legislative intent of the felony-firearm statute is to punish anyone who, at the time of the commission or attempted commission of a felony, possessed a firearm, whether the initial possession was legal or not.
    Affirmed.
    Criminal Law — Felony-Firearm — Statutes.
    The legislative intent of the felony-firearm statute is to punish anyone who, at the time of the commission or attempted commission of a felony, possessed a firearm, whether the initial possession was legal or not (MCL 750.227b; MSA 28.424[2]).

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

      Ronald G. Kraft, for defendant on appeal.
    Before: Cynar, P.J., and D. F. Walsh and L. B. Bebeau, JJ.
    Reference for Points in Headnote
    73 Am Jur 2d, Statutes § 300.

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

   Per Curiam.

Defendant, Raymond Abend, appeals his conviction, based on his plea of nolo contendere, of second-degree murder, MCL 750.317; MSA 28.549. He was also convicted of possession of a firearm in the commission or attempted commission of a felony, MCL 750.227b; MSA 28.424(2). He has been sentenced to a prison term of 1 to 20 years on the murder conviction and to the mandatory two-year consecutive sentence on the felony-firearm conviction.

Defendant’s challenge, on double jeopardy grounds, to his felony-firearm conviction was recently rejected by the Michigan Supreme Court. Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979).

Defendant further challenges his felony-firearm conviction, arguing that the Legislature intended to punish only the illegal possession of a firearm. It is defendant’s argument that the statute does not apply to him since the killing which gave rise to his murder conviction occurred in his home, where he was initially in lawful possession of the firearm.

We disagree. Defendant’s position has no support in the statute or in relevant case law. On the contrary, the statute reflects exceedingly clear legislative intent to punish anyone who, at the time of commission or attempted commission of a felony, possesses a firearm whether the initial possession was legal or illegal. If the Legislature had intended to exempt anyone, such as law enforcement officers or persons licensed or otherwise lawfully in possession of a firearm, from the general proscription of MCL 750.227b; MSA 28.424(2), it most certainly would have done so by providing explicit statutory exceptions as it did throughout the firearms section of the penal code. MCL 750.222, et seq.; MSA 28.419, et seq.

Moreover, we find that the Legislature was well within the power vested in it by the Constitution in attaching criminal sanction to this possession.

Affirmed.


text:
    PEOPLE v LUMBARD
    Docket No. 78-858.
    Submitted September 4, 1979, at Grand Rapids.—
    Decided November 21, 1979.
    Cynthia Lumbard was convicted of perjury for filing a false written declaration of her financial status on an application for welfare assistance, Kent Circuit Court, George R. Cook, J. In her application for assistance she substantially misrepresented the amount of her income and savings. On appeal from her conviction defendant argues that the declaration required by the Social Welfare Act is not an oath within the contemplation of the perjury statute. Held:

    The plain words of the social welfare statute, which require "a declaration under the penalties of perjury” that all facts contained in an application are true, evidence a legislative intention that the crime of perjury be charged against anyone who intentionally files an untruthful application for welfare assistance.
    Affirmed.
    Perjury — Oath Required by Law — Social Welfare Act — Application for Assistance — Untruthful Application — Statutes.
    The Social Welfare Act requires "a declaration under the penalties of perjury” that all facts contained in an application for welfare assistance are true; the plain words of the statute evidence a legislative intention that the crime of perjury be charged against anyone who intentionally files an untruthful application (MCL 400.25, 750.423; MSA 16.425, 28.665).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer,
      Prosecuting Attorney, and Carol S. Irons, Assistant Prosecuting Attorney, for the people.

      References for Points in Headnote
    60 Am Jur 2d, Perjury §§ 13, 21.
    73 Am Jur 2d, Statutes §§ 145, 146.
    79 Am Jur 2d, Welfare Laws § 112.
    Criminal liability in connection with application for, or receipt of, public relief or welfare payments. 92 ALR2d 421.

      Cholette, Perkins & Buchanan (by Robert J. Riley), for defendant.
    Before: Allen, P.J., and R. B. Burns and T. M. Burns, JJ.
   Per Curiam.

Defendant-appellant, Cynthia Lumbard, appeals of right her December 7, 1977, jury conviction of perjury. MCL 750.423; MSA 28.665. On February 10, 1978, defendant was sentenced to a term of 3 to 15 years imprisonment. We affirm.

The statute under which defendant was convicted provides:

"Any person authorized by any statute of this state to take an oath, or any person of whom an oath shall be required by law, who shall wilfully swear falsely, in regard to any matter or thing, respecting which such oath is authorized or required, shall be guilty of perjury, a felony, punishable by imprisonment in a state prison for not more than 15 years.”

Defendant was convicted of perjury for filing a false written declaration of her financial status on an application for welfare assistance. Section 25 of the Social Welfare Act, MCL 400.25; MSA 16.425, provides, in pertinent part:

"* * * All statements in the application [for assistance] shall be over the signature or witnessed mark of the applicant * * * and shall include a declaration under the penalties of perjury that the application has been examined by or read to the applicant * * * and, to the best of the applicant’s * * * knowledge, that all facts are true in each material point and are complete # * *

In her application for assistance defendant substantially misrepresented the amount of her income and savings. Defendant argues on appeal that the declaration required by § 25 of the Social Welfare Act is not an "oath” within the contemplation of the perjury statute.

Defendant cites as authority for her position the decision of this Court in People v Emmons, 11 Mich App 660; 162 NW2d 117 (1968). There, a panel of this Court held that the defendant could not be convicted of perjury for swearing falsely to an assumed name certificate where an oath as to the truth of the certificate was not required or authorized by either the assumed name statute or the forms provided pursuant to it.

Unlike the situation in Emmons, the applicable statute in this case does require "a declaration under the penalties of perjury” that all facts contained in the application are true. The plain words of this statute evidence a legislative intention that the crime of perjury be charged against anyone who intentionally files an untruthful application for welfare assistance.

Affirmed.


author: Per Curiam. V. J. Brennan, J.

text:
    PEOPLE v BENTLEY
    Docket No. 78-941.
    Submitted June 8, 1979, at Lansing.
    Decided November 21, 1979.
    Nancy Bentley pled guilty to a charge of delivery of a controlled substance. Prior to being sentenced she moved to withdraw her guilty plea alleging that she was under great emotional stress due to the illness of her mother who was in Florida. Motion-denied, Oakland Circuit Court, Alice L. Gilbert, J. Defendant appeals. Held:

    A motion for withdrawal of a guilty plea should be granted where a defense of innocence is asserted at the time of the request, the request is not obviously frivolous and the request is made before sentencing. A review of the transcript of the plea-taking proceedings and court records indicates that defendant’s claims of emotional distress and reliance on prosecutorial cooperation in permitting her to visit her sick mother in Florida after the plea cannot be considered patently frivolous. Furthermore, she asserted her innocence and did so before sentencing.
    Reversed.
    V. J. Brennan, J., dissented. He would hold that defendant clearly understood the plea-taking proceedings, there was no showing of emotional distress, and the reasons given for withdrawing the plea were obviously frivolous. He would affirm.
    Opinion of the Court
    1. Criminal Law — Plea of Guilty — Withdrawal — Discretion.
    A defendant may withdraw a guilty plea as a matter of right prior to the court’s acceptance; after the plea has been accepted, withdrawal becomes a matter addressed to the sound discretion of the court.
    2. Criminal Law — Plea of Guilty — Withdrawal — Defense of Innocence — Nonfrivolous Request — Liberality Rule.
    A motion for withdrawal of a guilty plea should be treated with great liberality; where a defense of innocence is asserted at the time of the request, the request is not obviously frivolous and the request is made before sentencing, the motion to withdraw a guilty plea should be granted.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 503 et seq.

       21 Am Jur 2d, Criminal Law § 504.

       21 Am Jur 2d, Criminal Law § 505.

      Dissent by V. J. Brennan, J.
    3. Criminal Law — Plea of Guilty — Withdrawal — Frivolous Request.

      An order denying withdrawal of a plea of guilty should be affirmed where a review of the transcript of the hearing for the motion to withdraw the plea indicates that defendant had a very clear understanding of the proceedings at which the guilty plea was taken, with defendant answering all questions without prodding, articulating statements of greater length than a simple yes or no, and with no showing of any emotional distress; the request to withdraw the plea was obviously based on frivolous grounds.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Jeffrey Butler, Assistant Prosecuting Attorney, for the people.

      Cohn & Murphy, for defendant.
    Before: Danhof, C.J., and V. J. Brennan and H. R. Carroll, JJ.

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

   Per Curiam.

Defendant pled guilty to a charge of delivery of a controlled substance, contrary to MCL 335.341(l)(a); MSA 18.1070(41)(l)(a), on December 14, 1977. On February 15, 1978, prior to being sentenced, defendant moved to withdraw her guilty plea, alleging that she was innocent and that at the time she pled guilty she was under great emotional stress. The trial court denied the motion. Defendant appeals as of right.

At the time defendant pled guilty, her mother was seriously ill in Florida. In her motion defendant stated that she was innocent of the charge to which she pled guilty but that she had been under considerable emotional stress due to the illness of her mother. It was her understanding at the time of the plea that if she pled guilty she would be permitted to leave the State of Michigan. A review of the guilty plea transcript tends to substantiate defendant’s claim. Before pleading guilty, defendant stated that the prosecution had promised that she would be allowed to leave the state. The prosecution qualified that by saying that, once the plea was taken, it would not oppose her leaving the state to visit a very sick parent if she could make bond. However, the prosecution also pointed out that this was not a part of the plea agreement. On this basis, defendant pled guilty to delivery of a controlled substance. Immediately thereafter, the prosecution stated to the court that it was not opposed to defendant leaving the state. The court records in the instant case indicate that defendant was, in fact, permitted to leave the state. Upon her return, she filed the instant motion which forms the basis of this appeal.

In Michigan, a defendant’s withdrawal of her guilty plea is a matter of right when it occurs prior to the court’s acceptance. People v Serr, 73 Mich App 19; 250 NW2d 535 (1976). After the plea has been accepted, withdrawal is within the sound discretion of the court. Id However, such motions are to be treated with great liberality. People v Hatcher, 83 Mich App 307; 268 NW2d 389 (1978), People v Price, 85 Mich App 57; 270 NW2d 707 (1978). In this regard, our Supreme Court has said that where "* * * a defense of innocence is asserted at the time of a request to withdraw a plea, and the request is not obviously frivolous and is made before the commencement of trial and before sentence, the plea [sic] should be granted”. People v Bencheck, 360 Mich 430, 433; 104 NW2d 191 (1960), People v Lewandowski, 394 Mich 529; 232 NW2d 173 (1975), People v Love, 72 Mich App 413; 250 NW2d 94 (1976), People v Hayes, 70 Mich App 580; 246 NW2d 154 (1976). Defendant’s claim in the instant case cannot be considered patently frivolous. See e.g., People v Hayes, supra. Moreover, she asserted her innocence and did so prior to sentencing. Hence, her motion for withdrawal falls squarely within the guidelines set out in Bencheck, supra.

The dissent argues that the Supreme Court’s decision in People v McClain, 402 Mich 824; 260 NW2d 287 (1977), rev’g 81 Mich App 84; 264 NW2d 1 (1977), precludes our decision today. However, we read McClain differently than does the dissent. In that case, this Court noted that a major reason for defendant’s decision to withdraw his plea was the identity of the sentencing court. People v McClain, 81 Mich App at 85. This is similar to the situation where defendant’s desire to withdraw his plea was motivated by the length of the sentence imposed which this Court has also rejected. People v Serr, supra.

Accordingly, the lower court’s decision is reversed.

V. J. Brennan, J.

(dissenting). Defendant pled guilty to a charge of delivery of a controlled substance, contrary to MCL 335.341(l)(a); MSA 18.1070(41)(l)(a), on December 14, 1977. On February 15, 1978, prior to being sentenced, defendant moved to withdraw her guilty plea alleging that she was innocent and that, at the time she pled guilty, she was under great emotional stress. The trial court denied defendant’s motion. Defendant appeals as of right.

This case should be affirmed. A review of the transcript indicates a very clear understanding of the proceedings with defendant answering all questions fully without court prodding. As stated by the trial court: "Nancy Bentley participated in the exchange between the court and herself by more than just saying yes or no to the court’s questions. She actually articulated statements at greater length than just a simple yes or no that is normally taken by some other judges in taking of the pleas.”

The reason she now advances for the withdrawal of her plea, i.e., to visit her mother, can only be regarded as frivolous. She could have sought permission to leave the state while on bond without pleading guilty. There is no showing of any emotional distress.

A similar case where this Court allowed withdrawal, People v McClain, 81 Mich App 84; 264 NW2d 1 (1977), was reversed in an order of the Supreme Court, 402 Mich 824; 260 NW2d 287 (1977). Clearly an abuse of discretion can not be found where the record indicates that the reasons advanced for withdrawal lack substance. People v Thomas (After Remand), 83 Mich App 235; 268 NW2d 356 (1978).

I would affirm.


text:
    PEOPLE v JACKSON PEOPLE v DIALS
    Docket Nos. 78-946, 78-4475.
    Submitted October 2, 1979, at Grand Rapids.
    Decided November 21, 1979.
    Defendants, Anthony S. Jackson and Joseph Dials, were convicted, on their pleas of guilty, of second-degree murder and felony-firearm in Recorder’s Court of Detroit, John Patrick O’Brien, J. Defendants appeal and the cases were consolidated for hearing. Held:

    1. Conviction of both second-degree murder and felony-firearm does not violate the constitutional prohibition against double jeopardy or the Michigan constitutional prohibition against amending statutes without reenacting and republishing them.
    2. A criminal statute may be challenged for vagueness on three grounds: (1) it does not provide fair notice of the conduct proscribed; (2) it confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed; and (3) its coverage is overbroad and impinges on First Amendment freedoms. The felony-firearm statute is not unconstitutionally vague.
    3. Challenges to statutes on the grounds of overbreadth which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand. Since neither defendant makes any claim that the conduct of which he was accused is constitutionally protected, neither has any standing to raise the issue of overbreadth.
    4. At the plea-taking hearing, defendant admitted that he shot and killed a witness to another shooting because the witness had seen him and knew who he was. There were facts on the record sufficient to support a charge of second-degree murder.

      References for Points in Headnotes

       16A Am Jur 2d, Constitutional Law § 818.
    21 Am Jur 2d, Criminal Law § 17.
    73 Am Jur 2d, Statutes § 346.
    Indefiniteness of language as affecting validity of criminal legislation or judicial definition of common law crime. 16 L Ed 2d 1231.

       40 Am Jur 2d, Homicide §§ 471, 472.

      Affirmed.
    1. Criminal Law — Due Process — Statutes — Vagueness.
    A criminal statute may be challenged for vagueness on three grounds: (1) it does not provide fair notice of the conduct proscribed; (2) it confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed; and (3) its coverage is overbroad and impinges on First Amendment freedoms.
    2. Constitutional Law — Due Process — Statutes — Vagueness.
    Challenges to statutes on the grounds of overbreadth which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.
    3. Criminal Law — Felony-Firearm — Due Process — Statutes — Vagueness.
    The felony-firearm statute is not unconstitutionally vague (MCL 750.227b; MSA 28.424[2]).
    4. Homicide — Second-Degree Murder — Plea of Guilty — Sufficiency of Facts to Support Guilty Plea.
    There were facts on the record sufficient to support a charge of second-degree murder where, at the plea-taking hearing, defendant admitted that he shot and killed a witness to another shooting because the witness had seen him and knew who he was.

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

      Mosley & Monroe, P.C., for defendant Jackson.

      Balfour Peisner, for defendant Dials.

      Before: Cynar, P.J., and D. F. Walsh and L. B. Bebeau, JJ.

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

   Per Curiam.

Defendant, Anthony Steven Jackson, was convicted on his pleas of guilty of the offenses of second-degree murder, MCL 750.317; MSA 28.549, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant, Joseph Dials, was also convicted on his pleas of guilty of the same offenses.

On appeal both defendants contest the constitutionality of the felony-firearm statute, MCL 750.227b; MSA 28.424(2). We have reviewed both records and have carefully considered the arguments of counsel. We find no reversible error in the convictions of either defendant.

The felony-firearm statute does not violate Michigan Const 1963, art 4, § 25, by revising, altering, or amending existing laws without reenacting and publishing them as required. Wayne County Prosecutor v Recorder’s Court Judge, 92 Mich App 433; 285 NW2d 318 (1979), People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978), People v Tavolacci, 88 Mich App 470; 276 NW2d 919 (1979).

Conviction of both felony-firearm and second-degree murder does not violate the constitutional prohibition against double jeopardy. Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979).

Finally, the felony-firearm statute is not unconstitutionally vague. As the Supreme Court stated in People v Howell, 396 Mich 16, 20; 238 NW2d 148 (1976):

"A statute may be challenged for vagueness on three grounds:
"1. It does not provide fair notice of the conduct proscribed.
"2. It confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed.
"3. Its coverage is overbroad and impinges on First Amendment freedoms.”

The felony-firearm statute proscribes carrying or possessing a firearm while committing or attempting to commit a felony. The crimes defendants were charged with were felonies. Both were in possession of a firearm at the time of the commission of the offenses. Under the facts of these cases the statute certainly provides "fair notice of the conduct proscribed” and it does not confer on the trier of fact "unstructured and unlimited discretion to determine whether an offense has been committed”.

Moreover, defendant Jackson’s contention that the statute is overbroad must also fail. Neither defendant argues that the statute impinges on First Amendment freedoms. When the statute challenged does not involve First Amendment freedoms, the challenge of overbreadth must be evaluated in the light of the facts of the case in which the issue is raised. People v Howell, supra, 21. Since neither defendant makes any claim that the conduct of which they were accused is constitutionally protected, neither has any standing to raise an overbreadth issue. Broadrick v Oklahoma, 413 US 601; 93 S Ct 2908; 37 L Ed 2d 830 (1973).

Defendant Dials states the final issue to be as follows:

"Where a person is assaulted, and in the course of the assault, shoots the attacker, after which he panics and kills a witness, is he chargeable with murder in the second-degree?”

At the plea-taking proceeding defendant Dials admitted that when he and Jackson were in the alley, they discovered that the deceased’s wife was in a car down the street and that she had seen defendant Dials and knew who he was. Jackson then said that the deceased’s wife would have to go too. Dials told the court: "He handed me the pistol and I walked down to the car and fired to the car twice, walked back in the alley and handed Jackson the pistol”.

Defendant Dials’ admission that he killed a witness because she had seen him and knew who he was certainly supports a charge of second-degree murder. Guilty Plea Cases, 395 Mich 96, 130; 235 NW2d 132 (1975).

Defendants’ convictions are affirmed.


text:
    LITTKY & MALLON v MICHIGAN NATIONAL BANK OF DETROIT
    Docket No. 78-1878.
    Submitted October 5, 1979, at Detroit.
    Decided November 21, 1979.
    Leave to appeal denied, 408 Mich 932.
    Plaintiff, Littky & Mallon, a professional corporation, and defendant, Michigan National Bank of Detroit, had offices in the sainé building. Plaintiff maintained its checking account at another bank. Defendant, as a courtesy, regularly cashed for plaintiff’s clients checks received from plaintiff. Defendant notified plaintiff that it would discontinue the courtesy unless plaintiff made a deposit with defendant. Plaintiff then purchased a $10,000 certificate of deposit from defendant. A person identifying herself as Mary Ann McKay presented a check to defendant for $23,000 drawn on plaintiff’s account. The check, which defendant paid, was subsequently dishonored for an irregular drawer’s signature. Defendant sought to offset its loss by refusing to pay on the $10,000 certificate. Plaintiff sued defendant in the Wayne Circuit Court to recover its certificate and defendant counterclaimed for $23,000. The parties stipulated at trial that Louis Williams, Marvin Littky and Jenny LaJoie were authorized to sign on plaintiff’s account and that Louis Williams caused a third person to affix the signature of Jenny LaJoie to the dishonored check. Marvin Littky, sole shareholder and president of plaintiff, testified that Williams had no authority to authorize anyone to sign checks on behalf of the firm. Judgment was entered, Roland L. Olzark, J., on a jury verdict for plaintiff. Defendant appeals. Held:

    1. A court must use common sense and commercial experience in determining whether a mark on a check constitutes a signature. Defendant argued that the printed firm name at the top of the check constituted a sufficient signature. An imprinted name of a depositor on a check is not a signature where there is a written signature at an appropriate place on the check.

      References for Points in Headnotes

       11 Am Jur 2d, Bills and Notes § 210.

       5 Am Jur 2d, Agency § 150.
    11 Am Jur 2d, Bills and Notes § 211.

       5 Am Jur 2d, Agency § 150.
    11 Am Jur 2d, Bills and Notes § 211.

       10 Am Jur 2d, Banks §§ 603, 604.
    11 Am Jur 2d, Bills and Notes §§ 129, 710-712.

      2. The power to sign a check for another and bind him therefor may rest upon express, implied or apparent authority. A person who has authority to sign checks on an account does not have authority to authorize another to sign the name of a third person who also has authority to sign on the account simply by having the authority to authorize another to sign for him. Williams did not have authority to authorize anyone to sign Miss LaJoie’s name to the check.
    3. The fictitious payee provision in the Uniform Commercial Code does not estop the owner of an account on which a check was drawn from denying the validity of a forged drawer’s signature.
    Affirmed.
    1. Signatures — Negotiable Instruments.
    Courts must use common sense and commercial experience in determining whether a mark on a check constitutes a signature; an imprinted name of a depositor on a check is not a signature where there is a written signature at an appropriate place on the check.
    2. Principal and Agent — Signatures — Negotiable Instruments — Agent’s Power to Bind Principal.
    The power to sign a check for another and bind him therefor may rest upon express, implied or apparent authority.
    3. Principal and Agent — Signatures — Negotiable Instruments.
    A person who has authority to sign checks on an account does not have authority to authorize another to sign the name of a third person who also has authority to sign on the account simply by having the authority to authorize another to sign for him.
    4. Signatures — Negotiable Instruments — Statutes — Uniform Commercial Code.
    A fictitious payee provision in the Uniform Commercial Code does not estop the owner of an account on which a check was drawn from denying the validity of a forged drawer’s signature (MCL 440.3405; MSA 19.3405).

      Lippitt, Harrison, Perlove, Friedman & Zack (by
      Warren J. Perlove and Steven B. Sinkoff), for plaintiff.

      Burgoyne, Kaufman, Roche & Ward, P.C., for defendant.
    Before: T. M. Burns, P.J., and Bronson and R. M. Maher, JJ.
   Per Curiam.

This is an appeal from a jury verdict in favor of the plaintiff for $10,000 and denying the defendant’s counterclaim for $23,000.

At all times pertinent to this case, the plaintiff maintained its offices in the building where defendant’s main office was located. The plaintiff maintained its accounts at another bank, Manufacturer’s National Bank of Detroit. However, many of plaintiff’s clients regularly cashed checks received from plaintiff at defendant bank. At first, this service was done as a courtesy to plaintiff, but subsequently, defendant bank requested the plaintiff make a deposit with it or the courtesy would be withdrawn. Accordingly, plaintiff purchased a $10,000 certificate of deposit from defendant.

On or about September 25, 1972, a person identifying herself as Mary Ann McKay presented a check for $23,000 drawn on plaintiff’s corporate account at Manufacturer’s National Bank at defendant bank. Defendant paid this check which was subsequently dishonored at Manufacturer’s Bank due to an irregular signature. Defendant sought to offset its losses on this check by refusing to pay plaintiff on the $10,000 certificate. Plaintiff instituted suit to recover on the certificate and defendant counterclaimed for the $23,000 due on the check.

Both parties stipulated that Louis Williams was one of the authorized signers on plaintiff’s account, the other signers being Marvin Littky and Jenny LaJoie. It was further stipulated that Louis Williams testified in other proceedings that he caused a third party to affix the signature of Jenny LaJoie to the check in question.

The trial transcript contains only the testimony of two witnesses, Marvin Littky, the sole shareholder and president of plaintiff corporation, and Jenny LaJoie, his secretary. Littky testified that Williams had no authority to authorize anyone to sign checks on the firm’s behalf.

On October 3, 1977, a Wayne County jury returned a verdict in favor of the plaintiff and denying defendant’s counterclaim. Defendant now appeals by right.

The defendant raises three issues on appeal. First, the defendant argues that the plaintiffs name, imprinted at the top of the check in question, is a sufficient signature to bind the plaintiff. We note that the definition of the term signature in MCL 440.3401(2); MSA 19.3401(2) is broadly construed. However, we also note that pursuant to comment 39 following MCL 440.1201; MSA 19.1201, courts must use common sense and commercial experience in determining whether a mark constitutes a signature. We find that, based on both common sense and commercial experience, such a conclusion would be unreasonable where there was a written signature at the appropriate place on the check. See Pollin v Mindy Manufacturing Co, 211 Pa Super 87; 236 A2d 542 (1967).

The defendant next argues that the third party who actually signed the check in question had the authority to bind the plaintiff. The power to sign for another and thereby bind that party pursuant to MCL 440.3403(1); MSA 19.3403(1) may rest upon express, implied or apparent authority. White & Summers, Uniform Commercial Code, § 13-3, p 400. However, after thoroughly reviewing the testimony at trial and the stipulations of the parties, we find no evidence that such authority existed. While Mr. Williams may have had the authority to authorize a third person to sign his (Williams’s) name to the check, he did not have the authority to authorize such a third person to sign the name of another. Accordingly, this argument is without merit.

The defendant next argues that the plaintiff is estopped from denying that the signature on the check in question is valid pursuant to MCL 440.3405; MSA 19.3405. However, that section of the Code deals with "padded payroll” cases where payees’ signatures are forged. Since those cases involve a valid signature, the drafters of the Code decided that it would be commercially unsound to require the bank to spot such irregularities, and imposed the risk of loss on the employer. In this case, however, we are dealing with the forged signature of a drawer, not a payee. The bank should have been able to detect the irregular signature. Accordingly, MCL 400.3405; MSA 19.3405, is inapplicable.

Affirmed.


text:
    PEOPLE v FARNSLEY
    Docket No. 78-2337.
    Submitted June 5, 1979, at Lansing.
    Decided November 20, 1979.
    Susan Farnsley was convicted of wilfully and maliciously burning a dwelling house and the contents thereof and of wilfully burning insured personal property with intent to defraud the insurer, Ingham Circuit Court, James T. Kallman, J. The defendant appeals, alleging that 1) the fire inspector who investigated the fire was improperly allowed to testify as an expert witness, 2) that several remarks made by the prosecutor during his closing argument were improper, and 3) the trial court’s failure to suppress evidence gathered at the scene of the fire by the fire inspector was reversible error. Held:

    1. There were no specific objections raised at trial to the testimony of the fire inspector. Since the inspector was shown to be qualified as an expert, there is no manifest injustice shown. There was no error.
    2. Defense counsel failed to object to the allegedly improper remarks made by the prosecutor. Allowing the prosecutor’s remarks, when read as a whole and evaluated in light of the relationship or lack of relationship they bear to the evidence admitted at trial, did not result in a miscarriage of justice.
    3. The fire department official who investigated the fire did not need a search warrant to remain on the premises for a reasonable time to investigate the cause of the blaze after it had been extinguished. The seizure of the evidence without a warrant was constitutional.
    Affirmed.
    1. Criminal Law — Evidence — Preserving Question — Manifest Injustice — Appeal and Error.
    Specific objections to the admission of evidence will not be considered by the Court of Appeals where there has been no objection raised at trial, absent a showing of manifest injustice.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 601.

       5 Am Jur 2d, Appeal and Error § 601.
    75 Am Jur 2d, Trial §§ 192, 315.

       35 Am Jur 2d, Fires § 4.

      2. Criminal Law — Argument of Counsel — Preserving Question.
    Appellate review of alleged improprieties in a prosecutor’s closing argument is precluded in the absence of objection at trial unless failure to consider the issue would result in a miscarriage of justice; the prosecutor’s remarks must be read as a whole and be evaluated in light of the relationship or lack of relationship they bear to the evidence admitted at trial.
    3. Searches and Seizures — Burned Premises — Warrants.
    Fire department officials need no warrant to remain in a building, for purposes of investigating the cause of a fire, for a reasonable time after the fire has been extinguished.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, Michael G. Woodworth, Chief Appellate Attorney, and Charles M. Sibert, Assistant Prosecuting Attorney, for the people.

      Paul L. Decocq, for defendant on appeal.
    Before: Danhof, C.J. and V. J. Brennan and H. R. Carroll, JJ.

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

   Per Curiam.

On April 18, 1978, an Ingham County Circuit Court jury convicted defendant of wilfully and maliciously burning a dwelling house and the contents thereof, contrary to MCL 750.72; MSA 28.267, and of wilfully burning insured personal property with intent to defraud the insurer, contrary to MCL 750.75; MSA 28.270. She appeals from her convictions as of right.

Defendant raises three issues for our consideration, only one of which merits substantial discussion. At trial, Inspector Holliday of the Lansing Fire Department testified that it was his opinion that the fire in question was maliciously set and that it was arson. Defendant failed to object. Absent a showing of manifest injustice, specific objections to the admission of evidence cannot be raised for the first time on appeal. People v Alexander, 72 Mich App 91; 249 NW2d 307 (1976). Where Inspector Holliday was clearly shown to be a qualified, expert arson investigator and where the trial court properly instructed the jury that they were the sole and exclusive judges of the facts, we are unable to find manifest injustice. Moreover, his testimony meets the requirements for the admission of expert testimony. Dep’t of Natural Resources v Frostman, 84 Mich App 503; 269 NW2d 655 (1978). It is evident that Inspector Holliday’s conclusion was the product of professional and scientific knowledge beyond the competency of the jury. Dudek v Popp, 373 Mich 300; 129 NW2d 393 (1964). Accordingly, we find no error.

Defendant also complains of several remarks made by the prosecuting attorney during his closing argument. Defense counsel’s failure to object at trial precludes our review unless failure to consider the issue would result in a miscarriage of justice. People v Delgado, 404 Mich 76; 273 NW2d 395 (1978). The prosecutor’s remarks must be read as a whole and be evaluated in light of the relationship or lack of relationship they bear to the evidence admitted at trial. People v Cowell, 44 Mich App 623; 205 NW2d 600 (1973). A review of the record in this case convinces us that no manifest injustice occurred.

Finally, defendant argues that the trial court’s failure to suppress evidence gathered at the scene of the fire by Inspector Holliday was reversible error. She relies upon People v Tyler, 399 Mich 564, 570; 250 NW2d 467 (1977). In that case, a fire broke out shortly before midnight. The fire department arrived soon thereafter. At that time two plastic containers were discovered, one of which contained a flammable liquid. By 4 a.m. the fire was extinguished. At 8 a.m. fire officials returned and briefly surveyed the scene of the fire. They again returned between 9 and 9:30 a.m., at which time certain evidence indicative of arson was taken. There were subsequent searches of the premises at various times during the next three weeks. Evidence obtained as a result of these warrantless searches was admitted at trial. The Court found that evidence seized after the fire had been extinguished should have been suppressed. It held:

"If there has been a fire, the blaze extinguished and the firefighters have left the premises, a warrant is required to reenter and search the premises, unless there is consent or the premises have been abandoned.” Id., at 583.

On appeal to the United States Supreme Court, the decision was affirmed. Michigan v Tyler, 436 US 499; 98 S Ct 1942; 56 L Ed 2d 486 (1978). However, that Court disagreed as to the need for a warrant in the initial searches:

"Although the Michigan Supreme Court appears to have accepted this principle, its opinion may be read as holding that the exigency justifying a warrantless entry to fight a fire ends, and the need to get a warrant begins, with the dousing of the last flame. 399 Mich, at 579, 250 NW2d, at 475. We think this view of the firefighting function is unrealistically narrow, however. Fire officials are charged not only with extinguishing fires, but with finding their causes. Prompt determination of the fire’s origin may be necessary to prevent its recurrence, as though the detection of continuing dangers such as faulty wiring or a defective furnace. Immediate investigation may also be necessary to preserve evidence from intentional or accidental destruction. And, of course, the sooner the officials complete their duties, the less will be their subsequent interference with the privacy and the recovery efforts of the victims. For these reasons, officials need no warrant to remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished. And if the warrantless entry to put out the fire and determine its cause is constitutional, the warrantless seizure of evidence while inspecting the premises for these purposes also is constitutional.” Id., at 509-510.

Nor did the Court feel that the failure of the fire officials’ failure to remain on the premises continuously have any significance since "the morning entries were no more than an actual continuation of the first”. Id., at 511.

Application of the ruling set out in Michigan v Tyler, persuades us that defendant’s claim is unfounded. At the hearing regarding the motion to suppress, Inspector Holliday testified that he arrived at the scene of the fire at approximately 11:30 p.m. on August 6, 1976. At approximately 4 a.m. he left for his office in order to retrieve his camera which is a part of his investigating procedure. The last of the flames were extinguished at approximately 4:45 a.m. However, because of the possibility of incipient or rekindled fires, Inspector Holliday remained. To assist him in determining the cause of the fire, he called for an electrical inspector and a representative from Consumers Power as well as a furnace inspector. Between 4 and 7:30 of the morning of August 7, twelve containers of debris were removed from the premises and kept for subsequent analysis. In addition a clock was removed and pictures of the burnt dwelling were taken. At approximately 10 a.m., Inspector Holliday and his assistants vacated the premises.

The instant circumstances are not unlike those present in Tyler. The fire officials arrived while the fire was in progress. Those entrusted with investigative responsibility remained for a limited period of time after the blaze was extinguished for the purpose of determining its cause and ensuring that fire did not rekindle itself. As stated in Tyler, "officials need no warrant to remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished”. Id., at 510. Hence, the warrantless seizure of evidence in this case was constitutional.

Affirmed.


text:
    DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE v FELDER
    Docket No. 78-2434.
    Submitted June 6, 1979, at Detroit.
    Decided November 21, 1979.
    William M. Felder and Robert D. Felder were insured by Detroit Automobile Inter-Insurance Exchange with a policy that included uninsured motorist coverage when, on September 15, 1975, they were involved in an automobile accident with a car owned by Phyllis Murphy, insured by American Bankers Insurance Company of Florida, and driven by Willie Terrill. American denied coverage on the basis that Terrill was an excluded driver in the policy covering Phyllis Murphy’s car. The Felders sought arbitration against DAIIE under the uninsured motorist provision of their policy with DAIIE. Detroit Automobile Inter-Insurance Exchange then brought an action in Wayne Circuit Court against William M. Felder, Robert D. Felder and American Bankers Insurance Company of Florida seeking a declaratory judgment to determine whether Terrill was an excluded driver, and, as such, an uninsured motorist. Judgment for plaintiff, holding that Terrill was not an excluded driver and that the Felders did not have a valid uninsured motorist claim against DAIIE, Horace W. Gilmore, J. American Bankers Insurance Company of Florida appeals. Held:

    Terrill was not effectively excluded from the policy issued by American on the car owned by Phyllis Murphy. American did not comply with the clear statutory requirements of the provisions of the no-fault automobile insurance act which allow certain persons to be excluded from coverage while operating an automobile covered by a no-fault policy.
    Affirmed.
    1. Insurance — Automobiles — No-Fault Insurance — Exclusion prom Coverage — Statutes.
    A narrow exception to the general rule of comprehensive automobile insurance coverage allows certain named persons to be excluded from insurance coverage while operating an automobile covered by a no-fault automobile insurance policy; however, the statutory language which allows the exception is highly specific and detailed requirements must be met before a named individual is deemed excluded (MCL 500.3009[2]; MSA 24.13009[2]).

      References for Points in Headnotes

       Am Jur 2d New Topic Service, No-Fault Insurance § 20.
    Validity and construction of "no-fault” automobile insurance plans.
    42 ALR3d 229.

       73 Am Jur 2d, Statutes § 194.

       73 Am Jur 2d, Statutes §§ 145, 146, 272, 273, 279.

      2. Statutes — Statutory Construction — Clear and Unambiguous Statutes.
    A statute that is clear on its face and unambiguous is not open to interpretation by the courts.
    3. Statutes — Statutory Construction — Literalism — Legislative Intent.
    To avoid engaging in literalism, courts should not read statutes without regard to legislative intent; the clear words of an unambiguous statute have direct bearing on the intent of the Legislature, however, and a court is not practicing literalism when it refuses to give the words of the Legislature a meaning which the words cannot bear.

      Selby, Dickinson, Pike, Mourad & Brandt (Gromek, Bendure & Thomas, of counsel), for plaintiff.

      Weinbaum, Willis & Abbo, P.C. (by Stephen S. Green), for defendant American Bankers Insurance Company of Florida.
    Before: R. M. Maher, P.J., and Bronson and A. E. Moore, JJ.

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

   Per Curiam.

Defendant American Bankers Insurance Company of Florida (American) appeals as of right the trial court’s grant of summary judgment in favor of plaintiff, Detroit Automobile Inter-Insurance Exchange (DAIIE).

Defendants William Mack Felder and Robert D. Felder were insured by plaintiff DAIIE with a policy that included uninsured motorist coverage when, on September 15, 1975, they were involved in an auto accident with a car owned by Phyllis Murphy, insured by defendant American, and driven by Willie Terrill. American has denied coverage on the ground that Terrill was an excluded driver. The Felders sought arbitration against DAIIE on the ground that they were hit by an uninsured motorist, Terrill. DAIIE responded by filing this declaratory judgment action to determine whether Terrill was an excluded driver, and, as such, an uninsured motorist. The trial court held that Terrill was not effectively excluded from American’s policy covering the car he was driving, and that as a result he was not an uninsured motorist. We agree and affirm.

The Michigan Legislature has authorized a narrow exception to the general rule of comprehensive coverage in Michigan, which allows certain persons to be excluded from coverage while operating an automobile covered in a no-fault policy. Detroit Automobile Inter-Ins Exchange v Comm’r of Ins, 86 Mich App 473; 272 NW2d 689 (1978). The language is highly specific and detailed requirements must be met before a named individual is deemed excluded:

"When authorized by the insured, automobile liability or motor vehicle liability coverage may be excluded when a vehicle is operated by a named person. Such exclusion shall not be valid unless the following notice is on the face of the policy or the declaration page or certifícate of the policy and on the certifícate of insurance referred to in subsection (3) of section 4 of Act No. 198 of the Public Acts of 1965, as amended, being section 257.1104 of the Compiled Laws of 1948: Warning — when a named excluded person operates a vehicle all liability coverage is void — no one is insured. Owners of the vehicle and others legally responsible for the acts of the named excluded person remain fully personally liable.” MCL 500.3009(2); MSA 24.13009(2). (Emphasis added.)

American admits that it did not comply with this statutory mandate, but instead argues that it has complied with the spirit of the law, and that literal application of the statute would yield an absurd result. This argument is based on the fact that Phyllis Murphy signed a form titled "Notice and Authorization”, which states:

"As the owner of a motor vehicle you may be liable, under Michigan’s Motor Vehicle Code, for any injury caused by the negligent operation of your vehicle, including when it is driven by any other person with your express or implied consent or knowledge.
"If your vehicle is driven by your father, mother, brother, sister, son, daughter, or other immediate member of your family, it is presumed in law that such a person is driving with your consent and knowledge.
"Normally, automobile liability insurance protects the owner against all legal liability arising from the use of his vehicle. However, if you authorize your insurance company to exclude a specific named individual, you have no automobile liability coverage when the named excluded individual operates your vehicle.
"If the named excluded individual drives YOUR VEHICLE AND HAS AN ACCIDENT, YOU MAY BE LIABLE BUT YOU WILL NOT HAVE INSURANCE COVERING your liability.” (Emphasis in original.)

The form goes on to name Willie Terrill as a "Named Excluded Person” and bears the signature of Phyllis Murphy.

We cannot accept American’s position that this form satisfies the statute. To begin, a statute that is clear on its face and unambiguous is not open to interpretation by the courts. City of Lansing v Twp of Lansing, 356 Mich 641; 97 NW2d 804 (1959), Stover v Retirement Board of the City of St Clair Shores Firemen & Police Pension System, 78 Mich App 409; 260 NW2d 112 (1977). We find no ambiguity in this statute. It is clear and to the point. It sets out the Legislature’s approved method of excluding a person from a policy’s coverage, and must be deemed the only way in which such an exclusion may be accomplished. Expressio unius est exclusio alterius. See Citizens Mutual Ins Co v Central National Ins Co of Omaha, 65 Mich App 349; 237 NW2d 322 (1975).

Invoking other maxims of statutory construction, American notes that the primary function of the courts when interpreting statutes is to give effect to the intent of the Legislature. Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 400 Mich 184; 253 NW2d 646 (1977), Flint Board of Education v Williams, 88 Mich App 8; 276 NW2d 499 (1979). From this they argue that even a clear and unambiguous statute should not be construed in an absurd manner that defeats the legislative intent. Scholten v Rhoades, 67 Mich App 736; 242 NW2d 509 (1976). Accepting this principle does little to aid American’s position. In this statute, the intent of the Legislature is to provide a strongly worded notice to the insured that a specific driver is excluded from coverage. To carry out this intent, the Legislature required the notice to be placed in carefully designated places, and required the use of stern and specifically mandated language. The form which American would rely on does not comport with this intent. In this regard it is helpful to note that the statute contemplates prior authorization to exclude a driver before the notice, requirements come into play. American’s form accomplishes that authorization, but would have the form go further and satisfy the notice requirements as well. American has only completed half the task; we cannot excuse them from finishing the job.

To avoid engaging in literalism, courts should not read statutes without regard to legislative intent. The clear words of an unambiguous statute such as MCL 500.3009(2); MSA 24.13009(2) have direct bearing on the intent of the Legislature, however, and a court is not practicing literalism when it refuses to give the words of the Legislature a meaning they cannot bear.

Affirmed.


text:
    PEOPLE v BUELOW
    Docket No. 78-5456.
    Submitted September 4, 1979, at Grand Rapids.—
    Decided November 21, 1979.
    Defendant, Stephen M. Buelow, was charged with carrying a concealed weapon without a license. Defendant thereafter was found to have violated the terms of his probation on a prior assault conviction as a result of his carrying of the concealed weapon. His probation was revoked and he was sentenced to 90 days in jail. Subsequently defendant pleaded guilty to the concealed weapon charge in Kalamazoo Circuit Court, Lucien F. Sweet, J. Following sentencing, defendant moved to vacate his guilty plea, arguing that he had twice been put in jeopardy for the same crime. The Kalamazoo Circuit Court, Charles H. Mullen, J., denied the motion to vacate the guilty plea. Defendant appeals. Held:

    A defendant is not twice placed in jeopardy where the same criminal activity is the subject of both a probation revocation hearing and a subsequent conviction by a guilty plea. It matters not, for constitutional purposes, whether the probation revocation hearing precedes the taking of the guilty plea or whether the order of the proceedings is reversed.
    Affirmed.
    Constitutional Law — Double Jeopardy — Probation Revocation — Trial — Guilty Plea — Order of Proceedings.
    A defendant is not twice placed in jeopardy where the same criminal activity is the subject of a probation revocation hearing and a subsequent criminal trial; it is of no consequence whether the proceedings revoking probation precede the taking of a guilty plea or a conviction at trial.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, Stephen M. Wheeler, Principal Appellate Attorney, for the people.
    Reference for Points in Headnote
    21 Am Jur 2d, Criminal Law §§ 169, 567, 568.

      DeVries & Lamb, P.C., for defendant.
    Before: Allen, P.J., and R. B. Burns and T. M. Burns, JJ.
   Per Curiam.

On November 24, 1976, defendant was arrested for and charged with the crime of carrying a concealed weapon without a license. MCL 750.227; MSA 28.424. Subsequently, on September 13, 1977, he pleaded guilty to the offense and was given a sentence of 40 to 60 months in the state prison. Prior to the date of the instant offense, defendant had been convicted of assault and battery for which, on October 21, 1976, he had been put on probation. On January 6, 1977, a probation revocation hearing was held and it was determined that by carrying the concealed weapon on November 24, 1976, defendant had violated the terms of his probation. Defendant’s probation was revoked and he was sentenced to 90 days in the county jail from which 43 days credit were subtracted. On August 15, 1978, defendant filed a motion to vacate his September 13, 1977, guilty plea on the ground that he had twice been placed in jeopardy for the same criminal offense. Thus, the question before the Court is whether a defendant is twice placed in jeopardy when the same criminal activity is the subject of a probation revocation hearing and a subsequent criminal trial.

Defendant’s argument on this issue distinguishes between situations in which the probation revocation hearing is held before trial and those where trial precedes the probation revocation hearing. It is defendant’s contention that in the former situations double jeopardy is violated, whereas, in the latter it is not. We find that defendant’s distinction is unpersuasive. In People v Baines, 82 Mich App 438; 266 NW2d 839 (1978), a panel of this Court refused to find that the occurrence of a probation revocation hearing prior to trial violated a defendant’s fifth amendment right against self-incrimination. The Court noted that it declined to reach this issue because, after the defendant had testified at his probation revocation hearing, he later pled guilty to the underlying offense. In People v Nesbitt, 86 Mich App 128; 272 NW2d 210 (1978), this Court held that nothing in the statute regulating revocation of probation, MCL 771.4; MSA 28.1134, required that the trial of the criminal charge precede the revocation of probation hearing.

The insight that these two cases afford into the nature of the relationship between a defendant’s constitutional rights at a probation revocation hearing and his rights at trial, when coupled with the consideration that the standard of proof differs between these two criminal proceedings, leads us to conclude that defendant had not been twice placed in jeopardy here. We also find significant the fact that at defendant’s probation revocation hearing the question before the finder of fact was whether defendant had engaged in "anti-social conduct” sufficient to furnish good cause to believe that his probation should be revoked. In resolving the question of whether "good cause” had been shown, a finding that defendant had carried a concealed weapon would not be dispositive. A determination that defendant carried a concealed weapon would not have been sufficient to require revocation of his probation if it was found that such conduct did not meet the "good cause” standard or if some mitigating factor were found to be present. On the other hand, it is equally true that defendant might have been found guilty of violating his probation, but yet not guilty at the subsequent trial of carrying a concealed weapon. This is because of the different standard of proof in these proceedings. We conclude, therefore, that defendant’s . constitutional protection against double jeopardy has not been violated.

Affirmed.


text:
    PEOPLE v HUNTER (ON REMAND)
    Docket No. 47859.
    Submitted January 18, 1979, at Detroit.
    Decided November 21, 1979.
    Robert D. Hunter was arrested under a Detroit municipal ordinance which prohibits knowingly loitering in a place where narcotics paraphernalia are kept or sold. A subsequent search of Hunter’s person revealed a quantity of suspected heroin, and he was charged with possession of heroin with intent to deliver. The defendant moved to quash the information and Recorder’s Court of Detroit, George W. Crockett, Jr., J., granted the motion and dismissed the case, finding the ordinance under which the defendant was arrested to be unconstitutional. The dismissal was upheld on appeal, People v Hunter, 90 Mich App 1; 282 NW2d 218 (1979). A majority of the panel held that the ordinance was unconstitutional and concluded that since the defendant had been arrested pursuant to that ordinance, both the arrest and the search were invalid. Plaintiff’s application for leave to appeal was denied by the Supreme Court. Later, the Supreme Court granted plaintiff’s motion for reconsideration of its application for leave to appeal and remanded the case to the Court of Appeals for its reconsideration, 406 Mich 1006 (1979). The question presented is whether an arrest made in reliance on an ordinance, which at the time had not been declared unconstitutional, is valid regardless of a subsequent judicial determination of unconstitutionality. Held:

    An ordinance passed by a city government is presumed to be constitutional. The record establishes that the arresting officers had abundant probable cause to believe that the defendant was violating the ordinance. Therefore, the defendant was subject to a valid arrest. The validity of his arrest is not affected by the subsequent judicial determination that the ordinance is unconstitutional. Because the arrest was valid, the search which followed, being incidental to the arrest, was also valid.
    Reversed and remanded.
    References for Points in Headnote
    56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 382, 490.
    68 Am Jur 2d, Searches and Seizures § 37.

      Criminal Law — Ordinances — Arrest — Searches and Seizures •— Constitutional Law.
    The validity of an arrest for violation of a city ordinance and a search incidental to that arrest are not affected by a subse- . quent judicial determination that the ordinance is unconstitutional; a city ordinance is presumably valid.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.
    Before: D. C. Riley, P.J., and J. H. Gillis and Mackenzie, JJ.
   Per Curiam.

Defendant was found in the living room of a house the police had entered pursuant to a search warrant. Syringes and other narcotic paraphernalia were in plain view. Defendant was arrested for knowingly loitering in a place where such paraphernalia is kept or sold. Detroit Municipal Code § 28-8-8. A search of defendant revealed a quantity of powder alleged to contain heroin.

Defendant was charged with possession of heroin with intent to deliver, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). After being bound over, defendant moved to suppress the evidence obtained in the search following the arrest and to quash the information. The trial court found the ordinance under which defendant was initially arrested to be unconstitutional and granted the motion.

Plaintiff appealed to this Court as a matter of right. This Court affirmed. People v Hunter, 90 Mich App 1; 282 NW2d 218 (1979). A majority of the panel held that the ordinance was unconstitutional and concluded implicitly that since the defendant had been arrested pursuant to that ordinance, both the arrest and the search were invalid.

On July 19, 1979, the Michigan Supreme Court denied plaintiffs application for leave to appeal. 406 Mich 1006 (1979). On October 16, 1979, the Michigan Supreme Court granted plaintiffs motion for reconsideration of its application for leave to appeal and remanded the case to the Court of Appeals for reconsideration in light of Michigan v DeFillippo, 433 US 31; 99 S Ct 2627; 61 L Ed 2d 343 (1979).

The question presented is whether an arrest made in reliance on an ordinance, which at the time had not been declared unconstitutional, is valid regardless of a subsequent judicial determination of its unconstitutionality. On the authority of Michigan v DeFillippo, supra, we hold that it is and reverse.

The ordinance in question is presumptively valid. People v McQuillan, 392 Mich 511, 536-537; 221 NW2d 569 (1974). A review of the record establishes that the arresting officers had abundant probable cause to believe that the defendant was committing an offense, i.e., violating the ordinance. Accordingly, the defendant was subject to a valid arrest. Detroit v Recorder’s Court Judge, 85 Mich App 284, 290; 271 NW2d 202 (1978), MCL 764.15; MSA 28.874. The validity of the arrest is not affected by the subsequent judicial determination that the ordinance is unconstitutional. Michigan v DeFillippo, supra. The search which followed was valid because it was incidental to the arrest. United States v Robinson, 414 US 218, 235; 94 S Ct 467; 38 L Ed 2d 427 (1973).

The evidence discovered in the course of that search should not have been suppressed. The motion to quash was improperly granted.

Reversed. The case is remanded for further proceedings not inconsistent with this opinion.


author: D. C. Riley, J. N. J. Kaufman, P.J.

text:
    PEOPLE v KING
    Docket No. 77-3055.
    Submitted June 21, 1979, at Detroit.
    Decided December 5, 1979.
    Leave to appeal applied for.
    Thomas P. King was convicted of first-degree felony murder, Recorder’s Court of Detroit, Geraldine B. Ford, J. Defendant appeals, alleging that there was insufficient evidence at the preliminary examination to bind him over on an open charge of murder, that the evidence at trial was insufficient for the jury to conclude that the victim was killed in the course of a robbery, and that the trial court erred in its instructions to the jury in regards to malice. Held:

    1. The evidence presented at the preliminary examination was sufficient to enable the magistrate to bind the defendant over on the open murder charge, and that evidence, plus additional evidence presented at trial, was sufficient to allow the jury to infer that the killing occurred during the perpetration of a robbery.
    2. The trial court’s instruction to the jury essentially removed the element of malice from the jury’s consideration. The defendant’s conviction of first-degree felony murder must therefore be reversed.
    Reversed and remanded.
    N. J. Kaufman, P.J., agreed with the majority on the issues of the sufficiency of the evidence. As to the jury instructions, however, he would hold that while it is advisable for a trial court to instruct on malice in a felony murder trial, the failure to do so does not automatically require reversal of a felony murder conviction such as this where the element of malice can be inferred from the fact that the killing occurred during the commission of the robbery. He would affirm.
    References for Points in Heabnotes

       40 Am Jur 2d, Homicide §§ 483, 499, 500.

       40 Am Jur 2d, Homicide §§ 425, 442.

       40 Am Jur 2d, Homicide §§ 499, 500, 509.

      Opinion of the Court
    1. Homicide — Murder — Felony Murder — Instructions to Jury — Malice.
    An instruction to a jury in a murder trial which essentially removed the element of malice from the jury’s consideration where the evidence indicated that the defendant killed the victim in the course of a robbery was error mandating reversal of the defendant’s conviction of first-degree felony murder.
    Dissent by N. J. Kaufman, P.J.
    2. Homicide — Murder — Felony Murder — Evidence — Sufficiency of Evidence.

      Evidence presented at a preliminary examination that a defendant was armed, that he called a cab, and was seen driving a cab moments before the cab driver emerged from the cab fatally wounded and claiming to have been robbed was sufficient to enable the magistrate to bind over the defendant for trial on an open charge of murder; this evidence, plus evidence at trial that money may have been taken from the victim’s money box, that defendant’s thumb print was on the box, and that the victim’s tape deck was missing following the crime was sufficient to allow the jury to conclude that the killing occurred during the course of a robbery.

    3. Homicide — Murder — Felony Murder •— Instructions to Jury — Malice.

      An instruction to the jury on malice is advisable in a felony murder case; however, failure to instruct on malice does not mandate reversal of a defendant’s conviction where the element of malice can be inferred from the fact that the killing occurred during the perpetration of a robbery.

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

      Bernstein, Rabinovitz & Weitzman, P.C., for defendant.
    Before: N. J. Kaufman, P.J., and D. C. Riley and J. X. Theiler, JJ.

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

   D. C. Riley, J.

We adopt the facts as set forth in Judge Kaufman’s dissenting opinion and agree that there was sufficient evidence presented at the preliminary examination to bind defendant over on a charge of murder and, at trial, to convict defendant of that charge.

However, we part company with his dissent on the issue of the court’s instruction on felony-murder. Under the facts of this case, reversal is mandated. See People v Wilder, 82 Mich App 358; 266 NW2d 847 (1978), People v Till, 80 Mich App 16; 263 NW2d 586 (1977), People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976).

Reversed and remanded for a new trial.

J. X. Theiler, J., concurred.

N. J. Kaufman, P.J.

(dissenting). Defendant appeals as of right from a May 17, 1977, jury verdict finding him guilty of first-degree felony murder, contrary to MCL 750.316; MSA 28.548. He was sentenced to life imprisonment with credit given for 181 days served.

Defendant first claims there was insufficient evidence at the preliminary examination to bind him over on an open charge of murder. I disagree.

At the preliminary examination there was evidence that defendant was armed; that he called a cab; that he was seen driving a cab; and that, moments later, the cab driver emerged from the cab fatally wounded and said, "I been shot and robbed”. This was sufficient to enable the examining magistrate to bind defendant over to the circuit court for trial on an open charge of murder. See People v Spalla, 83 Mich App 661, 663-666; 269 NW2d 259 (1978). This evidence was also sufficient to establish a felony murder.

Defendant next argues that there was insufficient evidence presented at trial from which the jury could conclude that defendant killed the cab driver in the course of a felony. Again, I disagree.

At trial, in addition to the evidence presented at the preliminary examination, the prosecutor showed that money might have been taken from the victim’s money box; that defendant’s thumb print was on the box; and that the victim’s tape deck was missing following the crime. From this evidence, a jury could reasonably conclude that the cab driver was shot in the course of a robbery.

Finally, defendant claims error in the following instruction on malice as it relates to felony murder:

"Now, the difference between Murder of the First Degree and Murder of the Second Degree here in this case is that Murder of the First Degree is a killing done willfully and maliciously, during the commission or attempt to commit an arson, rape, robbery, burglary, extortion or kidnapping. While in Murder of the Second Degree, the killing is done willfully and maliciously, but without the elements of the commission or attempt to commit a [sic] arson, rape, robbery, burglary, larceny, extortion or kidnapping.
"Now, malice, in connection with being malicious in connection with murder, means the intentional taking of any man’s life without justification or excuse.
"To do an act wilfully, in consideration of the charge here, means to act intentionally, knowingly and purposely, without any justifiable excuse.
"So, if there has been a killing during the attempt or the actual commission of one of the felonies set out in the statute, this establishes Murder of the First Degree, It is not necessary to show that the killing was intended or even that the act resulting in death was intended. It may have been an incident quite unexpected. The only intent required is the intent to commit one of the crimes specified in the statute. If that intent is shown, the resultant homicide or killing is Murder, even if the killing was quite accidental, such as where a victim of a robbery attempts to disarm his assailant and is killed by an accidental discharge of the weapon during a struggle for its possession.
"The prosecution does not have to show that the defendant had an intent to kill Bruce Andrews. But, in order for you to convict the defendant of First Degree Murder, the Prosecution must prove that Bruce Andrews was killed during the perpetration or in the attempted perpetration of a robbery. And if the People have proven this, it would be your duty to find the defendant guilty of Murder in the First Degree.”

The first part of the instruction is fine; however, the last two paragraphs pose a problem. According to People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976), and its progeny, the first part of the instruction is necessary and proper but the last paragraphs are reversibly erroneous. According to People v Till, 80 Mich App 16; 263 NW2d 586 (1977), and its progeny, the first part of the instruction is unnecessary and the last paragraphs are correct.

The instruction is, to say the least, extremely confusing. However, our treatment of the issue, as evidenced by the cases cited above, is equally confusing. The Supreme Court has recently taken steps to end this conflict. Until a resolution of this question is reached at that level, to be safe, I would advise trial courts to instruct on malice in felony murder cases.

This is not to say that failure to so instruct should lead to reversal. MCL 750.316; MSA 28.548 makes it clear that a murder committed during the perpetration of a robbery, as here, shall be murder of the first degree. The judicial quandary over the malice element would be alleviated somewhat if the statute read a killing during the commission of an enumerated felony constitutes murder in the first degree. Since murder is used instead of killing, however, the controversy over the malice element will surely continue.

In focusing on the facts of the instant case, I hold that the court’s instructions were not erroneous. As stated, it would have been better if a malice instruction had been given. This oversight does not warrant reversal, however, as the malice element can be inferred from the fact that the murder was committed during the perpetration of the robbery. Accordingly, I would affirm.

       In People v Wright, 80 Mich App 172; 262 NW2d 917 (1977), and People v Thompson, 81 Mich App 348; 265 NW2d 632 (1978), two examples of the continuing Fountain-Till split in this Court, leave to appeal was granted by the Supreme Court on May 8, 1978. See 402 Mich 938 (1978).