text:
    PEOPLE v RODRIGUEZ
    Docket No. 77-2561.
    Submitted April 11, 1978, at Lansing.
    Decided May 15, 1978.
    Ernesto R. Rodriguez was convicted in Ingham Circuit Court, Michael G. Harrison, J., of carrying a dangerous weapon with intent to use it unlawfully against another. At trial the court refused to suppress a rifle found by the arresting officer prior to arrest hidden under a coat in the car which defendant was driving. The trial court also allowed testimony concerning two prior disturbances at a cafe near which defendant was arrested which had occurred within 2-1/2 hours of the alleged offense. The prosecutor in closing argument also made statements to the effect that certain evidence was uncontradicted and with regard to the lack of evidence concerning the motivation for defendant’s actions. Defendant appeals. Held:

    1. An officer has probable cause to search a car driven by a party where the party had previously made statements to the officer implying that he would get and use a gun on a third party and where told by an ordinary citizen that he had been told that the party had a gun and had pointed it at another person and where told by another ordinary citizen that the man with the gun was in the car; evidence obtained in such a search is admissible.
    2. Evidence of other misconduct of the defendant is properly admitted where no objection is made to its admission, the conduct formed part of the res gestae of the offense and the defendant made use of the evidence as part of his defense.
    3. Prosecutorial closing statements indicating that the evidence is uncontroverted are permissible as are comments relating to the absence of evidence generally and not defendant’s failure to testify at trial.

      References for Points in Headnotes

       68 Am Jur 2d, Search and Seizure §§ 43, 45, 99.
    Validity, under Federal constitution, of warrantless search of automobile. 26 L Ed 2d 893.

       29 Am Jur 2d, Evidence § 714.

       75 Am Jur 2d, Evidence § 241.
    Comment or argument by court or counsel that prosecution evidence is uncontradicted as amounting to improper reference to accused’s failure to testify. 14 ALR3d 723.

      Affirmed.
    1. Searches and Seizures—Automobiles—Probable Cause—Informants—Ordinary Citizens.
    An officer has probable cause to search a car where the driver had previously made statements to the officer implying that he would get and use a gun on a third person, where told by an ordinary citizen that he had been told that the driver had a gun and had pointed it at someone, and where told by another ordinary citizen that the man with the gun was in the car; evidence obtained in such a search is properly admitted.
    2. Criminal Law—Evidence—Misconduct of Defendant—Appeal and Error.
    Evidence of other misconduct of the defendant was properly admitted where no objection was made to its admission, the conduct formed part of the res gestae of the offense and the defendant made use of the evidence as part of his defense.
    3. Criminal Law—Argument of Counsel—Comment of Evidence.
    Prosecutorial statements that certain evidence is uncontradicted are permissible.
    4. Criminal Law—Argument of Counsel—Comment on Evidence.
    Comment on the absence of evidence generally and not on defendant’s failure to testify is permissible.

      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.

      Spence, Martin, Benedict & Hornback, for defendant on appeal.
    Before: Danhof, C. J., and Bronson and Cynar, JJ.
   Per Curiam.

Defendant was convicted by a jury on April 18, 1977, of carrying a firearm with the intent to use it unlawfully against the person of another, contrary to MCL 750.226; MSA 28.423. He now appeals as of right.

At trial, Lansing Police Officer Richard Van Dussen testified that early on the morning of August 21, 1976, he went to the El Tango restaurant on East Grand River Street in Lansing on three occasions. On the first occasion, at 1 a.m. at the request of the manager of the restaurant, Mrs. Esther Lopez, he escorted defendant from the restaurant. Defendant and Mrs. Lopez had been arguing over defendant’s interference with Mrs. Lopez’s employees and Mrs. Lopez had summoned assistance to eject him from the restaurant. At 2 a.m. Officer Van Dussen was again summoned to the El Tango restaurant. This time there had been an attempted shooting of defendant by an unidentified individual. Officer Van Dussen offered to take a report from defendant but his offer was refused. Defendant said that he "would take care of the matter himself, and when he found the individual that he would not miss”.

At 3:30 on the same morning, Officer Van Dussen cruised by the El Tango restaurant and noted an abnormally large and excited crowd in front of the restaurant. He then stopped to investigate and was told by Mrs. Lopez that an unidentified person had come into the restaurant and had told her that defendant had been pointing a gun at somebody. Upon walking outside, the officer was approached by an unidentified person who told him that the person with the gun was in a red Cadillac which was just down the street.

Officer Van Dussen pursued defendant, stopped him, and searched defendant’s person for weapons. When the search disclosed no weapon Officer Van Dussen looked into the car, saw a coat stretched out as though it were covering something, removed the coat, and found a rifle.

Donell Jones testified that defendant had driven up to Jones and pointed a rifle at Jones on the morning of August 21, 1976. Jones had ducked to the floor of his car and when nothing happened approached defendant. Defendant apologized and told Jones that he, defendant, had made a mistake and had aimed at the wrong man. Several witnesses corroborated Jones’s testimony. Defendant did not testify, but presented one witness who disputed a minor detail of Jones’s testimony, stating that he had never seen Jones talk to defendant following the incident.

Defendant argues that the trial court erred by refusing to suppress the rifle seized by Officer Van Dussen. The United States Supreme Court has long held that an immediate warrantless search of an automobile is permissible so long as there is probable cause to search. Carroll v United States, 267 US 132; 45 S Ct 280; 69 L Ed 543 (1925). See also People v Zeigler, 358 Mich 355, 361-362; 100 NW2d 456 (1960). To determine if an officer had probable cause, one must examine the facts, circumstances and information known to the officer at the time of the search. People v Carpenter, 69 Mich App 81, 83; 244 NW2d 338 (1976). Probable cause exists when these facts and circumstances warrant a man of reasonable caution in the belief that an offense has been or is being committed. People v Chartrand, 73 Mich App 645, 649; 252 NW2d 569 (1977). Although the United States Supreme Court has developed a special test for evaluating probable cause when based upon the statements of confidential informants, Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), that test is inapplicable to information provided by known informants who are ordinary citizens. People v Emmert, 76 Mich App 26, 30; 255 NW2d 757 (1977).

In the present case the officer had probable cause to search. Prior to the search he had been informed by two people that defendant had a gun. Although repeating hearsay, Mrs. Lopez was a named informant, not a professional stool pigeon whose credibility is open to question. The other informant, although unnamed, appeared to be testifying from first-hand information. When the information supplied by these citizens is coupled with defendant’s prior statement to the officer, probable cause to search was thereby established. Thus, the search of the automobile was valid and defendant’s motion to suppress was properly denied.

Defendant next contends that the trial judge erred in admitting testimony regarding the two prior disturbances at the El Tango Cafe. No objection was made to the admission of this evidence. Moreover this evidence was properly admitted as part of the res gestae of the offense. People v Kayne, 268 Mich 186, 191-192; 255 NW 758 (1934), People v McPherson, 38 Mich App 534, 543-544; 197 NW2d 173 (1972). In fact, defendant used this evidence of the prior incidents as part of his defense, to explain why he had possession of the rifle.

Defendant also contends that certain statements in the prosecutor’s closing argument merit reversal. Initially, we note that no objection was made to these comments. Furthermore, the prosecutor’s comments were proper. Statements indicating that the evidence is uncontradicted have been previously upheld on numerous occasions. People v LeRoy Morgan, 24 Mich App 660, 664-665; 180 NW2d 842 (1970), People v Balog, 56 Mich App 624, 629; 224 NW2d 725 (1974), People v Jacoboni, 34 Mich App 84, 86-87; 190 NW2d 720 (1971). The prosecutor’s comment regarding the absence of evidence relating to defendant’s reason for returning to the El Tango relates to the evidence generally and not defendant’s failure to testify at trial. People v Fields, 66 Mich App 347, 352; 239 NW2d 372 (1976). Therefore no error occurred.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE HIGHWAY COMMISSION v ABOOD
    Docket No. 30226.
    Submitted December 12, 1977, at Lansing.
    Decided May 24, 1978.
    The Michigan State Highway Commission filed a petition and declaration of taking to obtain a parcel of land in Jackson County owned by Hannibal Abood and others. The petition alleged that a good faith written offer to purchase had been made and that just compensation was estimated at $14,500. The Jackson Circuit Court, Gordon W. Britten, J., found, pursuant to a jury verdict, that $14,500 represented just compensation. The defendants appeal, alleging that the court erred in not allowing evidence of the price defendants paid for the land, in not placing before the jury the question of whether the commission had made a good faith written offer to purchase, and in its instructions to the jury. Held:

    1. While proof of the sales price is generally competent to show fair market value, the court did not err in excluding such evidence where the purchase price had no probative value because of changing market conditions and a lapse of five years from the time of purchase to the time of taking.
    2. The defendants had ample opportunity to prove lack of good faith on the part of the commission. The fact that the commission did not accept and offer to the defendants the higher of two appraisal values does not in itself establish bad faith. The court’s refusal to submit a special question to the jury on this issue was not an abuse of discretion where in this case it would only have served to confuse the jury.

      References for Points in Headnotes

       27 Am Jur 2d, Eminent Domain §§ 267, 428.
    Admissibility, in eminent domain proceedings, of evidence as to price paid for condemned real property on sale prior to the proceeding. 55 ALR2d 791.

       27 Am Jur 2d, Eminent Domain §§ 387-389.
    Eminent domain: what constitutes sufficient attempt to agree on purchase or compensation. 90 ALR2d 211.

       27 Am Jur 2d, Eminent Domain §§ 266, 407, 409.

       76 Am Jur 2d, Trial, § 1175 et seq.

       27 Am Jur 2d, Eminent Domain §§ 418, 506.

       27 Am Jur 2d, Eminent Domain § 272.

      3. The trial court committed error in its instructions to the jury regarding the highest and best use for the land where the defendants claimed an intent to use the land for a gas station, which would require a rezoning, and the court stated that in order for the jury to consider the gas station use they must find a "real probability” and "real possibility” that on the date of taking a gas station permit would be issued. Such instructions placed too high a burden of proof on the defendants because the defendants were required to show a reasonable possibility only.
    Reversed and remanded.
    1. Eminent Domain—Evidence—Purchase Price—Fair Market Value—Judge’s Discretion.
    Generally, proof of the sales price of property subject to condemnation is competent to show fair market value where the sale was voluntary, not too remote in time, and not otherwise shown to have no probative value; admission of such evidence is a matter largely within the discretion of the trial judge.
    2. Eminent Domain—Good Faith Offer to Purchase—Statutes.
    A good faith written offer to purchase property is required before condemnation proceedings may be instituted (MCL 213.366[1]; MSA 8.261[6] [1]).
    3. Eminent Domain—Good Faith—Appraisal.
    An owner of property which is the subject of a condemnation proceeding may challenge the good faith of the condemning authority by contesting the condemning authority’s appraisal of the property’s value.
    4. Eminent Domain—Value of Property—Appraisals—Bad Faith.
    Failure of a condemning authority to accept the higher of two appraisals of the value of property to be condemned does not in itself establish bad faith on the part of the condemning authority.
    5. Trial—Jury—Special Verdicts—Judge’s Discretion—Court Rules.
    The question of whether or not a special verdict is required is a matter within the discretion of the trial court (GCR 1963, 514).
    6. Eminent Domain—Trial—Instructions to Jury—Special Question—Judge’s Discretion-—Good Faith Offer to Purchase.
    A trial court’s refusal in a condemnation proceeding to submit to the jury a defendant’s special question regarding whether the state had made a good faith offer to purchase the defendant’s property prior to instituting condemnation proceedings was not an abuse of discretion where the defendant’s request was in fact for a general verdict with a special question, a practice which is not followed in Michigan and which would only have served to confuse the jury.
    7. Eminent Domain—Instructions to Jury—Use of Property—Permit for Use—Burden of Proof.
    A trial court erred where it instructed the jury in a condemnation case that, in order for the jury to consider the defendant’s proposed use of the property for a gas station, they had to find a "real probability” and a "real possibility” that on the date of the taking a gas station permit would be issued; such an instruction imposed too high a burden of proof on the defendant property owner because he is required to show a reasonable possibility only.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Louis J. Caruso and Janis Meija, Assistants Attorney General, and George J. Platsis, Special Assistant Attorney General, for plaintiff.

      Johnson & Johnson, for defendants.
    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.

Defendants appeal the jury award in Jackson County Circuit Court of $14,500 as just compensation for defendants’ property. Defendants appeal as of right under GCR 1963, 806.1.

The facts involved in this dispute are complicated and bear statement. In November, 1968, real estate brokers and appraisers Hannibal Abood, Richard Binder, and Earl Risbridger purchased a piece of property in Blackman Township, Jackson County, Michigan. The property was rectangular in shape and contained 19,454 square feet or a little less than half an acre. The property was situated at the northeast corner of Cooper Street and Rosehill Road about one-tenth of a mile from the Jackson city limits and near the state prison. This particular parcel had a frontage of 148.5 feet on Cooper and 131 feet on Rosehill. An 1-94 expressway interchange was four lots away from the subject property. The land was improved with a residence which in 1973 was 70 years old and in disrepair. The zoning was B-4, general business, and the area was a mixture of older residential and sparse commercial uses. The topography was irregular and the land varied from 5 to 11 feet above street level.

On September 25, 1973, plaintiff Michigan State Highway Commission filed a petition and declaration of taking. The petition stated that the land was necessary for improvement of the Cooper Street and 1-94 interchange. The petition also alleged that a good faith written offer to purchase had been made and that estimated just compensation was $14,500.

At the hearing on the issue of just compensation, plaintiff presented the testimony of real estate appraiser Willis Cushman, who stated that the fair market value of the land as of the date of taking was $14,500. Cushman considered the highest and best use of the land to be general commercial. Cushman’s original appraisal in August, 1971, had been $7,500. He had used the market data approach, in which he had compared the subject property to other comparable properties, most of which were located along Cooper Street.

Cushman testified that he knew the purchase price of the subject land when he made his appraisal and that the selling price was an important factor which he considered in appraising properties. However, Cushman was not permitted to state on cross-examination what price defendants had paid for the property when purchased in 1968 because the court ruled that the purchase price was not material. On a special record, defendant Binder stated the price to have been $27,-500. Binder was likewise not allowed to state the purchase price before the jury. However, during opening statement defendants’ attorney had divulged the purchase price of $27,500 to the jury. Plaintiff made no objection at the time.

Defendants presented various testimony indicating that the fair market value of the property at the time of taking would be between $49,000 and $60,000. These witnesses uniformly stated that the highest and best use of the property was as a neighborhood service station site. Several comparable sites were noted by witnesses in support of their value figures.

Defendant Binder testified that the Department of Highways and Transportation had been contacted before the property was purchased, and defendant buyers were told at that time that the state had no plans to acquire that particular property for expressway interchange improvement purposes. After buying the property, Binder and the others contacted numerous oil companies in order to resell the land. They rejected the State Highway Commission’s offer of $7,500 in 1971 as "totally inadequate”. Likewise, they rejected the offer of $14,500 in August, 1973.

However, defense testimony conflicted over whether or not development of the property into the contemplated service station site would be permitted under B-4 zoning. Defendant Binder stated that rezoning would be necessary while defendant Abood stated that the property was properly zoned for a service station site in 1968. Nonetheless, even defendant Abood admitted that a special use permit would be required. He testified that obtaining such special permit would be a routine matter. Regardless of this fact, testimony indicated that the only option to purchase granted for service station site development in 1969 was ultimately rejected due to the possible taking by the state.

Testimony presented by plaintiff indicated the public availability in 1962 of a report which had recommended the taking of defendants’ property pursuant to an interchange improvement project. Plaintiff had obtained a preliminary title commitment on defendants’ land from Burton Abstract and Title Company in June, 1964. Plaintiff’s testimony in rebuttal also indicated that the party to whom defendant had offered the option to purchase, Marathon Oil Company, was not intending to purchase a neighborhood service station site in 1969.

In returning the verdict figure of just compensation for defendants’ property, the jury foreman stated, "We feel that the best use of the property at the time of taking was for residential use with a value of $14,500”.

Defendants bring four allegations of error which we will subsume and discuss under only three separate designations.

Defendants first claim the trial court erred reversibly in refusing to allow proofs or cross-examination concerning the purchase price which defendants paid for their proposed service station property five years before the date of taking in September, 1973.

Generally, proof of the sales price is competent to show fair market value where the sale is voluntary, not too remote in time, and not otherwise shown to have no probative value. See In re Petition of Dillman, 263 Mich 542, 549-550; 248 NW 894 (1933). See also Wayne County Board of Road Commissioners v GLS LeasCo, 394 Mich 126, 141; 229 NW2d 797 (1975). Further, the determination whether such sales price evidence should be admitted is a matter largely within the discretion of the trial judge. State Highway Commission v McGuire, 29 Mich App 32, 34-35; 185 NW2d 187 (1970).

In McGuire, we affirmed a ruling that the purchase price paid for agricultural land nine years previously had no probative value. The former price did not fairly reflect on the land’s present worth in a rapidly expanding commercial and residential setting. Similarly, the trial court’s decision in this case may be sustained on the same basis. The purchase price simply had no probative value where gasoline was clearly in abundance in 1968 but in severe shortage in 1973. The fact was that many independent service stations were closing in 1973 while in 1968 many were being newly franchised. Further, the lapse of nearly five years since the property was purchased was alone significant indication that the purchase price paid in 1968 was not relevant to fair market value in 1973. State Highway Commission v McGuire, supra at 34.

On balance, we thus find the trial court did not err reversibly by refusing to admit proofs or cross-examination concerning the purchase price which defendant paid for their property in November, 1968.

Defendants next contend that the trial court committed reversible error in refusing to place before the jury the issue of whether plaintiff made a good faith written offer to purchase defendants’ property before instituting condemnation proceedings.

A good faith written offer to purchase is required by statute before instituting condemnation proceedings. MCL 213.366(1); MSA 8.261(6)(1) states in pertinent part:

"When the petitioner is unable to agree with any person interested in any private property for the purchase thereof, the petitioner, after making a good faith written offer to purchase the property, may file a petition for the acquisition of the property or property rights, in the circuit court of the county in which the property is located.”

Were the property owner to challenge the good faith of the condemning authority, he may do so by contesting the latter’s appraisal. Muskegon v Rogoski, 42 Mich App 594, 595; 202 NW2d 525 (1972). Clearly, defendants in this case had ample opportunity to prove lack of good faith. They introduced the owner’s testimony that the state’s appraisals were "ludicrous” and totally inadequate on a piece of property for which the owners had paid so much more. They cross-examined witness Cushman as to the manner in which he arrived at his appraisal, challenging the suitability of value figures he provided on comparable pieces of property. They presented the testimony of their own highly qualified witness, appraiser Charles Larson, who valued the property at $31,000 and whose appraisal the state had apparently rejected in favor of the figure obtained from Cushman. In short, defendants were able to introduce substantial evidence regarding plaintiff’s compliance with the statutory good faith requirement. The trial court correctly noted that the failure to accept the higher appraisal did not in itself establish bad faith, especially where in rebuttal Cushman testified quite convincingly that the comparable figures used by Larson were unsuitable.

Regarding the trial court’s refusal to submit defendants’ special question to the jury, the rule is that whether or not a special verdict is required pursuant to GCR 1963, 514 is a matter within the trial court’s discretion. Ketola v Frost, 375 Mich 266, 274 n 4; 134 NW2d 183 (1965). See also In re Medical Center Rehabilitation Project, 50 Mich App 164, 168; 212 NW2d 780 (1973).

We find no decisions in which an abuse of discretion resulted from the trial court’s refusal to submit special questions. In this case, the trial court’s refusal to submit defendants’ special question was not an abuse of discretion. What defendants in fact requested was a general verdict with a special question, a practice which Michigan does not follow. The submission of the case in this fashion to the jury would only have served to confuse them. They were told that the only issue in the case was the fair market value of the property on the date of taking. Certainly, they could use the evidence concerning plaintiff’s good faith in making their determination of fair market value. If the state made a bad faith offer, the conclusion would be that the state was being unfair to the property owner and should have offered more money. Had the jury believed this to be the case, they could have awarded a figure other than the exact valuation made by the state’s appraiser. In short, we find no basis for error.

Defendant argues in the third instance that the trial court gave inadequate instructions concerning the highest and best use of the property.

The trial court’s charge to the jury included instructions on highest and best use and burden of proof, stating that in order for the jury to consider the gas station use, a "real probability” and "real possibility” must be found that on the date of the taking a gas station permit would be issued. We find error in this instruction.

This Court has recently reviewed a similar situation. State Highway Commission v Haehnle, 69 Mich App 336, 337-338; 244 NW2d 470 (1976). In Haehnle, we considered an instruction which told the jury that in order to assess the effects of rezoning on the value of defendant’s property they must first find a "real probability” of rezoning at the time of taking. We found the instruction erroneous;

" 'But, on the other hand, it has been held, "if there is a reasonable possibility that the zoning classification will be changed, this possibility should be considered in arriving at the proper value.” ’ (Emphasis supplied.) While the trial judge was correct in instructing that the possibility of rezoning must be something more than remote, see State Highway Commission v Minckler, 62 Mich App 273; 233 NW2d 527 (1975), we think that his 'real probability’ instruction set defendants’ burden of proof too high under the existing standard announced in Eilender, supra.” State Highway Commission v Haehnle, supra at 337-338; also quoting State Highway Commissioner v Eilender, 362 Mich 697, 699; 108 NW2d 755 (1961).

In light of this holding, the trial court in the instant case committed reversible error. The jury here found that the best use of the property at the time of the taking was for residential use. Consequently, on review we cannot determine from the record whether the jury in considering the highest and best use may not have felt precluded from considering the possibility of use for a service station when the court instructed that a "real probability” rather than "reasonable possibility” of obtaining the use permit must be found prior to considering best use as a service station. Given the natural and common sense adaptability of such a site to service station use as opposed to residential use, we are inclined to believe the jury did not return this finding because they felt prohibited from doing so. In any case, the high likelihood that the higher burden of finding a real probability of obtaining the special use permit adversely affected their consideration of the highest and best use requires us to reverse the decision below and grant a new trial. See State Highway Commissioner v Eilender, supra at 699.

Reversed and remanded for proceedings in conformity with this opinion.

       "INSTRUCTION NO__
      "I further instruct you that under the statute permitting a governmental entity, such as the Michigan State Highway Commission, to take private property for public use, that it must first make the landowner a good faith written offer to purchase his land before it is permitted to institute eminent domain or condemnation proceedings. Therefore in this case you are directed to answer the following special question:
      "Did the Michigan State Highway Commission make a good faith written offer to purchase the land owned by the respondents in this case before instituting legal proceedings in this Court to condemn their land?
      "Yes_ No _
      "I further instruct you that in determining the issue of 'good faith’ that you may consider the fact that the Michigan State Highway Commission was in possession of an appraisal report prepared by Mr. Charles W. Larson which estimated the fair market value of the property at a price in excess of $31,000, at the time it made a written offer to purchase respondents’ property at $14,500.00.”


text:
    CHAMBO v CITY OF DETROIT
    Docket No. 31292.
    Submitted January 9, 1978, at Detroit.
    Decided May 24, 1978.
    Norman Chambo, a full-time police officer, was in uniform in his own vehicle on the most direct route from his home in Detroit to his duty station also in Detroit. The route took him through part of the City of Dearborn where he was involved in an accident and incurred injuries and loss of work. Defendant, City of Detroit Police Department, appeals by leave granted from a Workmen’s Compensation Appeal Board decision affirming an administrative law judge’s award of compensation to plaintiff. The issue on appeal is whether a police officer, in uniform, carrying a city owned gun and badge in his privately owned vehicle on the most direct route between his Detroit residence and his Detroit duty station which takes him through part of Dearborn is entitled to worker’s compensation benefits for injuries sustained in Dearborn while enroute to work. Held:

    Worker’s compensation benefits should be denied where a policeman is injured outside of the city limits of his city employer while not participating in police conduct because he is outside the jurisdiction wherein he could function with the authority of a police officer and is in no position to benefit his employer.
    Reversed.
    1. Appeal and Error—Workmen’s Compensation—Workmen’s Compensation Appeal Board—Questions of Law.
    A Workmen’s Compensation Appeal Board determination that a plaintiff’s injuries sustained in an auto accident arose out of and in the course of employment is based on a question of law and is not conclusive on the Court of Appeals.
    2. Workmen’s Compensation—Noncompensable Injuries—To or From Work.
    Generally, employees going to or from work are not covered by the worker’s compensation act; an exception to this rule, known as the dual-purpose rule, applies if a special trip would have had to be made if the employee had not combined the special trip with his going or coming trip; the dual-purpose rule allows recovery when the employee is still acting within the scope of his employment, carrying out the orders of his employer and performing some duty to further the latter’s business.

      References fob Points in Headnotes

       82 Am Jur 2d, Workmen’s Compensation §§ 547, 631.

       82 Am Jur 2d, Workmen’s Compensation §§ 250, 255 et seq., 269, 288.

       82 Am Jur 2d, Workmen’s Compensation §§ 250, 255 et seq., 269.

      3. Workmen’s Compensation—Travel to Work—Employment Related Injury—Benefit to Employer—Denial of Benefits.
    An injury to an employee on his way to work is sufficiently related to employment if the employer derives a special benefit from the employee’s activities at the time of the injury; where a policeman was injured outside the city limits of his city employer while not actively participating in police conduct and there was no benefit to the city from having the officer in uniform and on call since he was outside the jurisdiction wherein he could function with the authority of a police officer, he was not in a position to benefit his employer and worker’s compensation benefits should be denied.

      Volz & Higle, P. C., for plaintiff.

      Roger E. Craig, Corporation Counsel, and Thomas L. Walters, Assistant Corporation Counsel, for defendant.
    Before: Allen, P. J., and J. H. Gillis and M. J. Kelly, JJ.
   Per Curiam.

Defendant appeals from a Workmen’s Compensation Appeal Board (WCAB) decision affirming an award of compensation to plaintiff by the administrative law judge. This case is submitted on a stipulation of facts.

On May 7, 1969, Norman Chambo, a full-time police officer, was in uniform in his own vehicle on the most direct route from his home in Detroit to his duty station also in Detroit. The route took him through part of the City of Dearborn. At about 3:50 p.m., he was involved in an accident in Dearborn. He incurred injuries which forced him off work until September 7, 1969, when he returned to his prior job.

It is a mandatory requirement, subject to trial board action that a police officer: (1) Live in the City of Detroit; (2) Carry the city owned weapon with him at all times; (3) Carry the city owned badge with him at all times; (4) Respond to a crime being committed whether on duty or not; (5) Keep himself physically and mentally alert at all times to respond to a call for "help”. The wearing of a uniform to and from work, while not mandatory, is recommended and encouraged by the city.

The city has denied liability on the basis that, since he was coming to work, his injuries did not arise out of and in the course of his employment. Mr. Chambo filed a petition for hearing on May 8, 1973. A hearing was held on July 3 and 11, 1974, before an administrative law judge. In a decision dated July 11, 1974, the judge awarded plaintiff benefits of $98 per week from May 8, 1969, to September 6, 1969.

The Workmen’s Compensation Appeal Board affirmed the judge’s decision on October 26, 1976, in a 3-2 decision. The dissenting opinion would have reversed because Officer Chambo was outside the City of Detroit when the accident occurred.

Defendant made application for leave to appeal to this Court contending that the administrative law judge incorrectly applied the statutory and case law to these facts and reached an erroneous decision. The city further contends that the appeal board erred as a matter of law in granting compensation to Officer Chambo. Defendant’s application for leave to appeal was granted April 27, 1977.

Defendant’s appeal presents us with an issue of first impression: Is a police officer, in uniform, carrying a city owned gun and badge in his privately owned vehicle on the most direct route between his Detroit residence and his Detroit duty station which takes him through a part of Dear-born, entitled to worker’s compensation benefits for injuries sustained in Dearborn while enroute to work? On the narrow scope of the facts presented we hold that the police officer is not entitled to worker’s compensation benefits, and reverse the WCAB.

The WCAB determination that plaintiffs injuries sustained in an auto accident arose out of and in the course of employment is a question of law and not conclusive on this Court. Pappas v Sport Services, Inc, 68 Mich App 423, 427; 243 NW2d 10 (1976), lv den, 397 Mich 825 (1976).

The issue, while raised for the first time in this state, has been dealt with at the appellate level in other states. The opinions from the various courts are not in agreement.

In Michigan the general rule is that employees going to or from work are not covered by the worker’s compensation act. In Burchett v Delton-Kellogg School, 378 Mich 231, 236; 144 NW2d 337 (1966), an exception to this rule was supplied in the following formula, known as the dual-purpose rule:

"If a special trip would have had to be made if the employee had not combined this service with his going or coming trip, then the dual-purpose rule applies.”

The dual-purpose rule allows recovery when the employee is still "acting within the scope of his employment, carrying out the orders of his employer and performing some duty to further the latter’s business”. Burchett, supra at 235.

Police officers, because of the nature of their job and since in many cases they are expected to be available 24 hours a day, have been allowed recovery in some jurisdictions. See Warg v Miami Springs, 249 So 2d 3 (Fla, 1971), Sweat v Allen, 145 Fla 733, 200 So 348 (1941), Garzoli v Workmen's Compensation Appeal Board, 2 Cal 3d 502; 86 Cal Reptr 1; 467 P2d 833 (1970), Jasaitis v City of Paterson, 31 NJ 81; 155 A2d 260 (1959), Mayor & Alderman v Ward, 173 Tenn 91; 114 SW2d 804 (1938). See generally 1 Larson, Workmen’s Compensation Law, § 15.43, p 4-60, n 64, § 16.12, pp 4-105 to 4-106, nn 42-43. Other jurisdictions have denied recovery. Walker v State Accident Insurance Fund, 28 Or App 127; 558 P2d 1270 (1977), Blackley v Niagara Falls, 284 App Div 51; 130 NYS2d 77 (1954), McKiernan v New Haven, 151 Conn 496; 199 A2d 695 (1964), Simerlink v Young, 172 Ohio St 427; 178 NE2d 168 (1961). See generally 1 Larson, Workmen’s Compensation Law, supra.

To justify his claim to entitlement of benefits, plaintiff argues that the city has benefited from the requirements of being a police officer in the City of Detroit referred to above. In Stark v L E Myers Co, 58 Mich App 439, 443; 228 NW2d 411 (1975), lv den, 394 Mich 814 (1975), the Court noted that one of the considerations relevant to determining whether an injury to an employee on the way to work was sufficiently employment related was "whether the employer derived a special benefit from the employee’s activities at the time of the injury”.

The narrow facts of this case refute the benefit argument of the plaintiff. Plaintiff was injured outside the city limits of Detroit, and was not injured while actively participating in police conduct. Under these facts the city did not benefit from having the officer in uniform and on call since he was outside the jurisdiction wherein he could function with the authority of a police officer.

In a Florida case cited by the plaintiffs, Sweat v Allen, supra, the Supreme Court of Florida upheld a finding of entitlement to worker’s compensation granted to a deputy sheriff who was on call all day and night. The sheriff was assigned as an assistant jailer. His regular hours were from 7 a.m. to 7 p.m. One morning while he was walking from his home to a bus line to go to work, he was struck by a dairy truck and was severely injured. Compensation was granted and upheld, the court stating:

"The case at bar is not that of an ordinary workman going to work; for by the very nature of the service the claimant performed, he was continuously intrusted with certain duties, namely, to protect the peace and safety of the community and apprehend those guilty of its violation. His personal life was subservient at all times to call of official service; he was, so to speak, on guard twenty-four hours a day, with no increase in salary in proportion to the time devoted. This high duty of the office rested upon the claimant and was a part of his employment notwithstanding the fact that he was immediately assigned as the jailer, for the word 'employment’, as used in the Workmen’s Compensation Act, refers to the whole period of time or sphere of activities, regardless of whether the employee is actually engaged in doing the thing he was employed to do. Wirta v North Butte Mining Co., 64 Mont. 279, 210 P. 332, 30 A.L.R. 964.” 200 So at 350.

See Warg v Miami Springs, supra, 249 So 2d at 5, Miami Beach v Valeriani, 137 So 2d 226, 228-229 (Fla, 1962).

The Sweat case was not without dissent, however. The dissent was concerned that the plaintiff "was not performing any service growing out of and incidental to his employment”. 200 So at 353. The dissent foresaw the danger of a deputy sheriff recovering for injuries received while at home, a party, or on a personal mission. This is certainly a danger which requires us to emphasize that recovery may be allowed in some instances, but a line must be drawn within reason to avoid absurd results in future cases.

We think the reasoning set forth in a subsequent Florida case which distinguishes Sweat v Allen, supra, is applicable here. Miami Beach v Valeriani, supra. In Valeriani, the plaintiff was a police officer of the City of Miami Beach. At the request of his employer he also had been commissioned as a deputy sheriff of Dade County. On his way to work as a Miami police officer, he was assaulted at least a mile from the Miami Beach City limits while attempting to make an arrest. The court held that the injuries resulting from the assault did not arise out of and in the course of his employment with the Miami Beach Police Department. The court stated:

"The facts in the Sweat v. Allen decision distinguish it from the facts in the case at bar. There Allen, even though on his way to work, was in a position to carry out his duties as a deputy sheriff of Duval County and make an arrest if necessary and proper at the place where he was injured because it was in Duval County. Here Valeriani, a Miami Beach detective, was not in a position to make an arrest at the place where he was injured as a police officer of Miami Beach but only as a deputy sheriff of Dade County because he had no power to make an arrest outside of Miami Beach for a violation of the Metropolitan Dade County Traffic Code. This we believe is the essential point of difference which caused this Court to affirm an award of compensation benefits to Allen and requires us to deny them to Valeriani. Claimant, according to his own testimony, was acting as a deputy sheriff of Dade County in attempting to make an arrest and we are not here concerned with any possible compensation claim against Dade County, but only one against the City of Miami Beach.” 137 So 2d at 229.

We find that since plaintiff was in the City of Dearborn when he was injured, that he is in almost the same situation that confronted Valeriani. He was not in a position to benefit the City of Detroit. We hold that where the plaintiff is not involved in any activity that may be considered connected with his employment as a Detroit police officer,—i.e., his presence in the City of Dearborn where he was injured,—benefits will be denied. Walker v State Accident Insurance Fund, supra, Blackley v Niagara Falls, supra, Simerlink v Young, supra. But see Jasaitis v City of Paterson, supra. The benefits noted in the Jasaitis opinion, however, are not applicable where the officer is outside the City of Detroit and the citizens of Detroit are not benefiting. Cf. Krasnoff v New Orleans Police Dept, 241 So 2d 11 (La, 1970).

Our holding is supported by the recent Oregon decision, Walker v State Accident Insurance Fund, supra, which cited the following passage from the New York case of Blackley v Niagara Falls, supra:

"' * * * So far as the argument that he was subject to call twenty-four hours a day is concerned, the simple answer is that he had finished his regular work and had not been called for anything further. Moreover on the basis of his own admission he was not engaged at the time of the accident in any work connected with his duties as a policeman. To say that any accident which he sustained when not on post duty was covered because he was subject to call and required to act as a policeman should the occasion require, is somewhat unrealistic. If, as in the case here, he was injured at a time when he was off active duty and was engaged in an activity in no way connected with his duties as a policeman, it cannot be said with any semblance of logic that the injury arose out of his employment.’ Matter of Blackley v. City of Niagara Falls, 284 App. Div. 51, 53, 130 N.Y.S.2d 77, 79 (1954).” (Footnote added.)

We specifically limit the application of our holding to the instant facts, and do not rule on what the result would be if plaintiff was within the city limits of Detroit. The benefits to the city might weigh in plaintiff’s favor for compensation under those facts.

Reversed. No costs, a public question being involved.

       The Krasnoff Court stated:
      "We entertain no doubt, under the circumstances, that the accidental injury to plaintiff arose out of and in the course of his employment. At the time of the accident plaintiff was not in the position of, say, an off-duty officer injured while changing his own car’s tire, whose actions and injury would be unrelated to his employment as a policeman. Here we believe plaintiff was injured precisely because he was engaged in discharging the obligations of his employment, and his accidental injury was a compensable one because arising out of and in the course of his employment, R.S. 23:1031. Any other conclusion would invite 'off duty’ police officers to ignore rape, robbery, mayhem, murder, and any other imminent damage to a citizen or his property.”

       The fact that an officer is on his way home from work rather than going to work is not a material difference between the cases. Warg v Miami Springs, supra, 249 So at 5.


author: V. J. Brennan, J.

text:
    PEOPLE v HALL
    Docket No. 26791.
    Submitted November 8, 1977, at Lansing.
    Decided June 5, 1978.
    George N. Hall was convicted of three counts of murder, three counts of felony murder, one count of assault with a dangerous weapon with intent to commit murder and one count of assault with intent to rob while being armed. The Ingham Circuit Court, Thomas L. Brown, J., sentenced the defendant to life imprisonment on each of the eight convictions. Defendant appeals, contending, inter alia, that error was committed in allowing him to stand trial on six counts of homicide and sentencing him to six life sentences when he was alleged to have killed only three people. Held:

    1. The defendant was properly allowed to stand trial on the six counts because where there are multiple theories of murder the prosecutor is not required to elect upon which theory he will try the case.
    2. Three of the murder convictions and sentences should be vacated because imposing six sentences upon the defendant for three homicides is double punishment.
    3. The defendant’s contention that the trial court erred in refusing to admit evidence relating to a defense of diminished capacity and in refusing to instruct the jury on this defense when evidence was admitted is not supported by the record.
    4. Admission of evidence of a prior altercation between the defendant and a deceased was proper to show motive and intent.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 546.
    40 Am Jur 2d, Homicide § 211.

       40 Am Jur 2d, Homicide §§ 52, 53.

       40 Am Jur 2d, Homicide § 274.

       40 Am Jur 2d, Homicide §§ 145, 307.
    Admissibility of evidence as to other’s character or reputation for turbulence on question of self-defense by one charged with assault or homicide. 1 ALR3d 571.

       40 Am Jur 2d, Homicide §§ 417, 418, 453.
    Admissibility of photograph of corpse in prosecution for homicide or civil action for causing death. 73 ALR2d 769.

       21 Am Jur 2d, Criminal Law § 64.

      5. Evidence of two of the victims’ propensities toward carrying guns was properly excluded where no proper foundation for such evidence was laid and where other evidence clearly showed that defendant was the aggressor.
    6. Photographs of the victims’ bodies were properly admitted into evidence.
    7. Comments by the prosecutor regarding the possible consequences should the defendant be found not guilty by reason of insanity did not result in reversible error where those comments were in response to remarks by defense counsel and the prosecutor’s comments were brief and not prejudicial.
    Affirmed, but three of the life sentences vacated.
    1. Criminal Law—Prosecutors—Election of Charges.
    A prosecutor is not required to elect when distinct offenses are charged in different counts but are committed by the same acts, at the same time, and where the same testimony must necessarily be relied upon for conviction.
    2. Homicide—Premeditated Murder—Felony Murder—Double Punishment—Vacation of Convictions.
    A defendant who was convicted on one count of premeditated murder and one count of felony murder in each of two killings, and on one count of felony murder and one count of second-degree murder in a third killing and sentenced to six life terms of imprisonment was subjected to double punishment because the convictions arose from only three killings; therefore, three of the convictions and sentences, one for each of the killings, should be vacated.
    3. Homicide—Evidence—Prior Altercation—Motive or Intent— Statutes.
    Evidence of a prior altercation between the defendant and the deceased, in a trial for murder, is admissible to show motive or intent where the probative value of such evidence outweighs its prejudicial effect and where the evidence is relevant to the res gestae of the crime (MCL 768.27; MSA 28.1050).

      4. Homicide—Evidence—Victim’s Propensity Toward Weapons— Self-Defense.
    Evidence of the propensity of a murder victim toward carrying weapons was properly excluded in a murder trial where no proper foundation for the evidence had been laid when the evidence was offered and where other evidence clearly indicated that the defendant was the aggressor, eliminating any possible self-defense theory.
    5. Homicide—Evidence—Photographs—Murder Victims—Stipulation by Parties.
    Admission into evidence of photographs depicting the bodies of murder victims is within the discretion of the trial judge and is not error so long as the photographs are not offered with the sole intention of inflaming the jury, regardless of the fact that the parties are willing to stipulate to the locations of the bodies.
    6. Criminal Law—Prosecutor’s Comments—Insanity—Disposition of Defendant.
    Neither the prosecutor nor defense counsel may comment during trial upon the consequences of a jury finding that the defendant is not guilty by reason of insanity; however, where a prosecutor’s remarks regarding such consequences are in response to defense counsel’s comments regarding the same subject and the remarks are brief and not prejudicial, no reversible error occurs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, and Lee Wm. Atkinson, Chief Appellate Attorney, for the people.

      Joseph D. Reid, for defendant on appeal.
    Before: Quinn, P. J., and V. J. Brennan and C. L. Bosman, JJ.

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

   V. J. Brennan, J.

Defendant George N. Hall was convicted by a jury in Ingham County Circuit Court on a multiple count information which consisted of three counts of murder, three counts of felony murder, one count of assault with a dangerous weapon with intent to commit murder and one count of assault with intent to rob while being armed. He was tried jointly with codefendant Leo McGill on September 15-18, 22-25 and October 6-9, 13-16, 20 and 22-24, 1975. McGill was found not guilty on every count. Defendant was found guilty on all eight counts. On December 1, 1975, defendant was sentenced to a term of life imprisonment on each of the eight counts. Defendant appeals as a matter of right under GCR 1963, 806.1.

Little dispute exists about the events leading up to defendant’s conviction. Early in the morning of January 30, 1975, defendant was a participant in a card game at the home of John Fowler in East Lansing, Michigan. At about 3 a.m. defendant and Lawrence Chappell became involved in an altercation. Testimony at trial indicated that defendant produced a knife and threatened Chappell with violence. Eventually the parties returned to their card game and defendant left the building at 5 a.m. At that time only Lawrence Chappell, Charles Bovinette, N. A. Gaulden and John Fowler remained at Fowler’s residence. Half an hour later, defendant went to the home of Karen Lawson and demanded the return of firearms he had left with her.

Testimony regarding the actual murders was produced by N. A. Gaulden, the lone survivor of the incident. At about 6 a.m., defendant and another man identified as Leo McGill returned to the home where the card game was being played. Defendant was refused his request to rejoin the game because he had no money. Defendant responded, "Never mind, it doesn’t matter. We are taking all the money anyhow.” At this point, defendant and codefendant McGill drew guns and ordered everybody to the floor. Gaulden then heard shots and saw Charles Bovinette fall, although he could not determine who had fired the shots. Next, he saw defendant shoot at Lawrence Chappell.

Defendant then told Gaulden to give him his money. After complying, he was ordered to lie on the floor. He then heard several, shots and was struck twice by bullets, once in the side and once in the back. Shortly afterward, Gaulden called the police. On arrival, they found John Fowler and Lawrence Chappell dead. Charles Bovinette died on February 4, 1975.

On appeal, defendant raises several allegations of error. We will address those which merit discussion.

Defendant first contends that the trial court committed reversible error by permitting defendant to stand trial on three counts of premeditated murder and three counts of felony murder and by sentencing defendant to six life sentences where defendant is alleged to have killed only three people.

Defendant was found guilty of the following crimes: (1) separate convictions for the premeditated murder and felony murder of John E. Fowler, contrary to MCL 750.316; MSA 28.548; (2) separate convictions for the premeditated murder and felony murder of Lawrence Chappell, contrary to MCL 750.316; MSA 28.548; (3) separate convictions for the second-degree murder and felony murder of Charles Bovinette, contrary to MCL 750.317; MSA 28.549 and MCL 750.316; MSA 28.548; (4) separate convictions for assault with intent to commit the crime of murder and assault with intent to rob while armed of N. A. Gaulden, contrary to MCL 750.89; MSA 28.284 and MCL 750.83; MSA 28.278. The propriety of convicting and sentencing defendant on the two assault counts is not contested on this appeal. However, concerning the murder counts, defendant was convicted and sentenced to six life terms. for the commission of only three criminal acts. He challenges this penalty on grounds of double punishment.

We would note first that the prosecution need not have been forced to elect between the two theories of first-degree murder. People v Cabassa, 249 Mich 543, 545; 229 NW 442 (1930). In Cabassa, the Michigan Supreme Court noted:

" 'When distinct offenses are charged in different counts, but are committed by the same acts, at the same time, and the same testimony must necessarily be relied upon for conviction, the prisoner cannot be confounded in making his defense, and the people ought not to be compelled to elect.’ ” People v Cabassa, supra at 545.

See also People v Allan, 263 Mich 182, 201-202; 248 NW 589 (1933), People v Andrus, 331 Mich 535, 540-541; 50 NW2d 310 (1951), People v Loncar, 4 Mich App 281, 287; 144 NW2d 801 (1966). In short, we find no error in the court’s not requiring election by the prosecutor between premeditated murder and felony murder. No such election is required.

Nonetheless, even the prosecution concedes that defendant’s six murder convictions and sentences resulted from three separate acts. We find defendant was subjected to double punishment and hold that three of the convictions and sentences must be vacated. See People v Stewart (On Rehearing), 400 Mich 540, 547-550; 256 NW2d 31 (1977), People v Martin, 398 Mich 303, 307-311, 313-314; 247 NW2d 303 (1976). See also People v Crown, 75 Mich App 206, 215-216; 254 NWD2d 843 (1977). In Crown, we vacated one of two life sentences imposed upon defendant where he had been convicted of both a felony murder and premeditated murder of a single victim. Following the procedures used there, the life sentences imposed for the felony murders of John E. Fowler and Lawrence Chappell are vacated. Similarly, the life sentence imposed for the second-degree murder of Charles Bovinette is vacated. See People v Anderson, 62 Mich App 475, 482-483; 233 NW2d 620 (1975). Thus three life sentences may stand.

Defendant next claims the trial court committed reversible error by refusing to admit evidence relating to the defense of diminished capacity and by refusing to instruct the jury on this defense when evidence of diminished capacity was admitted. The contention is erroneous; the trial court did admit certain evidence regarding this defense and also gave an appropriate instruction although not specifically labelled "diminished capacity”.

Review of this record leads us to conclude that defendant was not prejudiced by the trial court’s ruling. We find defendant was able to present evidence of diminished capacity by means of the testimony of Dr. Arnold Werner. This witness testified that defendant exhibited some amnesia, had not slept much prior to the murders and had suffered a blow to the head at some time. This testimony was extensive enough to provide the jurors with sufficient evidence to consider whether defendant’s specific intent was negated by diminished capacity. Other testimony provides only cumulative information to that provided by Dr. Werner. The jury had the benefit of all relevant evidence relating to the defense. We find no basis for reversal here.

Moreover, the following summation of defendant’s argument was made to the jury by the trial court:

"It is defendant Hall’s position that because of excessive use of alcohol coupled with lack of sleep and use of amphetamines that he was unable to formulate the speciñc intent to kill and rob. Furthermore, that he contends that he received certain blows to the head which complicated his thinking process.” (Emphasis added.)

In addition to instructing the jury as to the intent required for each crime charged, the court noted the following:

"When a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist.”

In addition, both attorneys referred to the "concussion” theory in their closing argument. Therefore, we feel that the trial court adequately apprised the jury as to defendant’s diminished capacity defense. People v Fields, 64 Mich App 166, 172-173; 235 NW2d 95 (1975), lv den, 397 Mich 861 (1976). Further, we note that the jury rejected defendant’s claims of insanity and intoxication, both of which would appear to have more merit than defendant’s diminished capacity defense.

On defendant’s remaining allegations of error, we only comment briefly. We do not find the trial court committed reversible error by admitting evidence of a prior altercation between defendant and Lawrence Chappell which occurred some months before the killing. We find such evidence admissible in order to explain the cause of the scuffle between the same two persons two hours before the killings. Such testimony tended to show motive or intent in a case where the states of mind were crucial. MCL 768.27; MSA 28.1050. Further, the probative value of such evidence outweighed its prejudicial impact. Such evidence was also relevant to the res gestae of the crime. People v McPherson, 38 Mich App 534, 543-544; 197 NW2d 173 (1972). Finally, on review of the record, we find that no prejudice resulted from admission of evidence of this prior altercation.

Nor did the trial court commit reversible error by excluding evidence that John Fowler and Lawrence Chappell had previously appeared at poker games while armed with revolvers. We sustain the trial court’s holding that proper foundation supporting a claim of self-defense by defendant had not been laid at the point when this character evidence was offered, thereby precluding its introduction. People v Knott, 59 Mich App 105, 108-109; 228 NW2d 838 (1975), citing People v Cellura, 288 Mich 54; 284 NW 643 (1939). See also People v Van Camp, 356 Mich 593, 600; 97 NW2d 726 (1959). Evidence clearly existed indicating defendant as the aggressor and eliminating any possible self-defense theory. Evidence of the victims’ propensity toward carrying guns was properly excluded.

The trial court did not abuse its discretion by admitting into evidence photographs depicting the bodies of the victims. Admission of such photographs is within the discretion of the trial judge so long as they are not offered with the sole intention of inflaming the jury. People v Eddington, 387 Mich 551; 198 NW2d 297 (1972). Our finding in this regard is unaffected by the fact that defendant was willing to stipulate to the location of the bodies. People v Green, 74 Mich App 351, 357-358; 253 NW2d 763 (1977). We find no improper intent or undue prejudice to defendant by the court’s decision to admit the evidence.

Finally, we find no reversible prejudice to defendant by the prosecution’s comment in rebuttal regarding possible future consequences should defendant be found not guilty by reason of insanity. The present rule in Michigan is that neither prosecution nor defense counsel may comment during trial upon the possible finding of not guilty by reason of insanity. People v Szczytko, 390 Mich 278, 284-290; 212 NW2d 211 (1973). However, where, as here, the prosecution’s remarks were in response to defense counsel’s comment concerning the same subject, no reversible error occurs when the comments were brief and not prejudicial. People v Blake, 58 Mich App 685, 689; 228 NW2d 519 (1975).

Affirmed but with an order to vacate the three life sentences specified earlier in this opinion.

Quinn, P. J., did not participate.


author: Danhof, C. J. H. L. Heading, J.

text:
    PEOPLE v WILLIAMS
    Docket No. 29301.
    Submitted October 12, 1977, at Lansing.
    Decided June 5, 1978.
    Jimmie L. Williams was convicted of armed robbery, Ingham Circuit Court, Donald L. Reisig, J. Prior to trial the defendant appeared at a parole revocation proceeding without counsel. The defendant appeals, arguing that the in-court identification of the defendant was tainted because of an impermissibly suggestive pretrial identification procedure which occurred during the parole revocation hearing and that witnesses were improperly questioned about the defendant’s employment. Held:

    The in-court identification of the defendant was proper, even assuming that the parole revocation hearing constituted an impermissibly suggestive identification procedure, because the record discloses clear and convincing evidence that the complaining witness had a prior independent basis for the in-court identification. There was no showing of manifest injustice regarding the prosecution’s questioning of the defendant’s alibi witnesses as to whether the defendant was employed; therefore, although such questioning was improper, there was no reversible error on that issue.
    Affirmed.
    H. L. Heading, J., dissented. He would hold (1) that the trial court’s finding that the in-court identification of the defendant rested on an independent basis was clearly erroneous, and (2) that the prosecution’s questioning of the alibi witnesses about the defendant’s employment at the time of the robbery were so prejudicial that a curative instruction could not have overcome the error and that the defendant should not be precluded from raising the issue on appeal. He would reverse the defendant’s conviction and remand for a new trial.

      References for Points in Headnotes

       81 Am Jur 2d, Witnesses § 492.

       5 Am Jur 2d, Appeal and Error §§ 562, 778.

       21 Am Jur 2d, Criminal Law § 568.
    59 Am Jur 2d, Pardon and Parole § 97.
    Right to assistance of counsel to revoke probation. 44 ALR3d 306.

       29 Am Jur 2d, Evidence § 372.

       29 Am Jur 2d, Evidence §§ 371-373, 1143.
    Extrajudicial or pretrial identification of accused, admissibility of evidence as to. 71 ALR2d 449.

       30 Am Jur 2d, Evidence §§ 1085-1086.
    81 Am Jur 2d, Witnesses § 661.

       75 Am Jur 2d, Trial § 708.

      Opinion of the Court
    1. Witnesses—Criminal Law—Identification—Improper Procedure—Independent Basis.
    Factors to be considered in determining whether an in-court identification of a defendant had a basis independent from a pretrial identification procedure include consideration of the witness’s opportunity for observation during the crime, accuracy of description, any discrepancy between a pre-lineup description and actual appearance of the defendant, identification of any other person prior to the lineup, failure to identify the defendant on a prior occasion, the lapse of time between the crime and the lineup identification, and any idiosyncratic or special features of the defendant.
    2. Criminal Law—Appeal and Error—Prosecutor’s Questions— Witnesses—Alibi Witnesses—Failure to Object—Manifest Injustice.
    A prosecutor’s improper questioning of a defendant’s alibi witness regarding the defendant’s employment was not reversible error where there was no objection at trial and no showing of manifest injustice.
    Dissent by H. L. Heading, J.
    3. Criminal Law—Constitutional Law—Right to Counsel—Probation Revocation Hearing—Identification—Case Precedent.

      A criminal defendant is entitled to representation of counsel at a parole revocation hearing where the hearing is a pretrial identification procedure within the meaning of precedent case law.

    4. Criminal Law—Identification—Parole Revocation Hearing— Suggestive Identification Procedure.

      A confrontation of a complaining witness with a defendant, who was without counsel, in custody, and obviously the accused at a

      parole violation proceeding, was an unduly suggestive pretrial identification procedure.

    5. Criminal Law—Identification—Hearing—Attorney and Client —Discretion.

      The holding of an evidentiary hearing out of the presence of the jury, at which the people must show by clear and convincing evidence that an in-court identification had a basis independent of the prior identification procedure, is not discretionary with the trial judge if there was no counsel at the pretrial identification procedure, or if the procedure was unnecessarily suggestive or conducive to irreparable misidentification.

    6. Criminal Law—Identification—Independent Basis—Suggestive Identification Procedure—Findings.

      A trial judge’s finding that a complaining witness’s in-court identification had a basis independent of an improper pretrial identification procedure should not be disturbed unless it is clearly erroneous.

    7. Criminal Law—Identification—Suggestive Identification Procedure—Parole Violation Hearing—Independent Basis—In-Court Identification.

      A trial court’s finding that a complaining witness’s in-court identification of a defendant had a basis independent of an impermissibly suggestive pretrial identification procedure at the defendant’s parole violation hearing was clearly erroneous where there is no doubt that the showup at the parole hearing aided the complainant in positively identifying the defendant and where, if the complainant had not seen the defendant at the parole hearing, the complainant would not have identified the defendant as the perpetrator of the offense.

    8. Criminal Law—Evidence—Alibi Witnesses—Prosecutor’s Questions—Employment Status of Defendant.

      Questioning by the prosecution of a defendant’s alibi witnesses to determine if the defendant was employed at the time of a robbery was improper because the prejudicial value outweighed the probative value.

    9. Criminal Law—Appeal and Error—Failure to Object—Prosecutor’s Questions—Alibi Witnesses.

      The failure of a defendant to object to questions by a prosecutor of alibi witnesses should not preclude the defendant from raising the issue on appeal where the questions brought forth answers which were so prejudicial that even if an objection had

      been raised a curative instruction would not have overcome the error.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, Lee Wm. Atkinson, Chief Appellate Attorney, and Lawrence P. Schneider, Assistant Prosecuting Attorney, for the people.

      Reid & Reid, P. C. (by Joseph D. Reid and Lawrence J. Emery), for defendant on appeal.
    Before: Danhof, C. J., and Allen and H. L. Heading, JJ.

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

   Danhof, C. J.

Defendant was jury convicted of armed robbery in violation of MCL 750.529; MSA 28.797, and was subsequently sentenced to a term of 7-1/2 to 20 years in prison. Defendant appeals as of right raising four issues.

Defendant argues that the absence of counsel at his parole revocation hearing, which took place after his arrest but before his trial on the robbery charge, required the per se exclusion of any testimony concerning that parole revocation proceeding or its result at the robbery trial. The prosecution did not present any such testimony at defendant’s trial however.

Defendant further argues that the in-court identification of the defendant by the complaining witness was tainted by the impermissibly suggestive pretrial identification procedure which occurred during the parole revocation hearing. Defendant made a pretrial motion to suppress the in-court identification. Assuming that the defendant is correct that the parole revocation hearing constituted an impermissibly suggestive identification procedure, the record discloses clear and convincing evidence that the witness had a prior independent basis for his in-court identification. That basis was his observation of the robber at the scene of the crime both shortly before and during the robbery. Applying the test set out in People v Kachar, 400 Mich 78; 252 NW2d 807 (1977), reveals that the factors favoring a finding of an independent basis include the witness’s opportunity to observe the robber before and during the crime under good lighting conditions with no distractions; the fairly short time between the crime and the trial; the previous proper identification of defendant’s photograph in a nonsuggestive identification situation; the accuracy of the witness’s description of the defendant given shortly after the crime occurred; and the fact that the witness identified no one other than the defendant as the robber. Some factors do undercut the identification including the witness’s excited state during the robbery; his failure to identify defendant’s picture shortly after the robbery; and the witness’s own testimony which appears confused at points. Defendant places great emphasis on a small part of this testimony which appears to contain an unequivocal admission by the witness that he could not have identified the defendant had he not seen him at the parole revocation hearing. A fair reading of the record shows, however, that the witness misunderstood the question asked of him. The witness subsequently explained that he had not' finished his answer and that the parole hearing had no effect on his ability to identify the defendant whom he could have identified as the robber even if he had not seen him at the parole hearing. Our own reading of the question posed to the witness reveals that it contains three negatives and could easily have confused the witness. The record supports a finding of an independent basis and therefore it was not error to allow the witness to make an in-court identification of the defendant.

Defendant also contends that the prosecutor’s unobjected to statement in closing argument that the evidence was "uncontradicted and unrebutted” was an improper comment on the defendant’s failure to testify. There is no merit to this contention. People v Jacoboni, 34 Mich App 84, 86; 190 NW2d 720 (1971), People v Franklin, 70 Mich App 343, 348; 245 NW2d 746 (1976).

Defendant also argues that the prosecutor’s questioning of his alibi witnesses to determine if defendant was employed at the time of the robbery was improper. We agree. However, we do not find reversible error here because there was no objection at the trial, the questions were few, the subject was not mentioned in closing argument, and there has been no showing of manifest injustice. See People v Martin, 75 Mich App 6, 13-14; 254 NW2d 628 (1977), and People v Kincade, 61 Mich App 498, 506-507; 233 NW2d 54 (1975).

Affirmed.

Allen, J., concurred.

H. L. Heading, J.

(dissenting). Defendant was charged with armed robbery, MCL 750.529; MSA 28.797, and convicted after a jury trial on May 11-12, 1976. He received a sentence of 7-1/2 to 20 years imprisonment, with credit for 122 days time served. He appeals as of right.

Defendant was convicted of robbing a gas station, whose attendant, Michael Blackmer, was the only eyewitness. Blackmer testified that a man, whom he identified as the defendant, first entered the gas station at about 11:10 p.m. on January 22, 1976, and offered to sell him a television. After Blackmer refused and he left, Blackmer went into the back room of the station to deposit money in a floor safe. He testified that the defendant came up behind him, pointed a gun at him and demanded money. Blackmer observed the robber face to face. Defendant removed some $49 from a desk drawer and another $7 or $8 from Blackmer’s back pocket, then left. The police arrived within a short time, and, within about 45 minutes, Blackmer was shown a "mug book” containing 150 photographs. He made no identification at the time, later testifying that he was extremely frightened and upset. Five or six days later, Blackmer was shown the same book and this time identified one of the photographs—depicting the defendant—as the robber, but stating he was not positive. (Stipulated facts by both parties concerning identification.)

Defendant did not testify at trial. His father testified that when he arrived home from work at 11:15-11:20 on January 22, defendant was home watching television. Defendant’s brother testified that he was at home with the defendant throughout the evening. There was testimony that the gas station which was robbed was four or five blocks from the Williams home.

Defendant raises four issues on appeal, two of which are timely and closely related.

On February 6, 1976, three months before the trial, Blackmer testified at defendant’s parole violation hearing and identified him as the man who had robbed him. Defendant was not represented by counsel at that proceeding. On appeal, defendant argues that this one-on-one confrontation of defendant and complaining witness, conducted in the absence of defense counsel, deprived him of his right to counsel at pretrial identification proceedings, United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967), People v Anderson, 389 Mich 155, 168; 205 NW2d 461 (1973), and further that it was unduly suggestive. The parole violation proceeding was a pretrial identification procedure within the meaning of People v Anderson. See People v Solomon, 391 Mich 767; 214 NW2d 60 (1973). It follows that the defendant was entitled to the presence of counsel. The confrontation of the complaining witness with the defendant, who was alone, in custody and obviously the accused at the parole violation proceeding, was unduly suggestive.

The trial judge’s conclusion that the complaining witness had a basis for his in-court identification of the defendant which was independent of the parole hearing identification is clearly erroneous. The procedure and applicable standard were established in People v Anderson, supra, at 169:

"If there was no counsel at the pretrial identification or if the procedures were unnecessarily suggestive or conducive to irreparable misidentification, then before an in-court identification may be received in evidence, the trial court must hold an evidentiary hearing out of the presence of the jury at which the people must show by clear and convincing evidence that the in-court identification had a basis independent of the prior identification procedure (Wade). ” See also United States v Wade, supra, at 241-242, Gilbert v California, 388 US 263, 272; 87 S Ct 1951; 18 L Ed 2d 1178 (1967).

At the conclusion of the preliminary hearing, the judge held that an independent basis for the in-court identification existed in this case. His conclusion is not to be disturbed unless it is clearly erroneous. People v Manuel Johnson, 58 Mich App 347, 355; 227 NW2d 337 (1975).

I shall organize my discussion of the evidence in accordance with the factors recently enumerated in People v Kachar, 400 Mich 78, 95-96; 252 NW2d 807 (1977):

"1. Prior relationship with or knowledge of the defendant.”

The complaining witness had never seen the defendant before the robbery.

"2. The opportunity to observe the offense. This includes such factors as length of time of the observation, lighting, noise or other factor affecting sensory perception and proximity to the alleged criminal act.”

The robber twice confronted and conversed with the witness, the second time facing him from a distance of two or three feet under indoor light.

"3. Length of time between the offense and the disputed identification.”

The photographic identification took place at most six days after the crime. This preceded the parole violation hearing by a week. About three and a half months elapsed between the crime and the trial.

"4. Accuracy or discrepancies in the pre-lineup or showup description and defendant’s actual description.”

There is nothing in the record suggesting that Blackmer’s descriptions of the robber did not accurately describe the defendant. At times Blackmer was uncertain about some details, such as the color of the robber’s cap or whether his glasses were tinted. The description given by complainant was a general one.

"He stated that he had just been robbed by a black male, approximately 6 feet tall. He said little bit taller than what he was. And I submitted it at about six feet, between 150-160. He was wearing a three-quarter length grey leather jacket; had on, I believe, a grey hat; a small thin mustache; was wearing wire-framed glasses, and they were slightly rose colored or tinted.”

This description would fit thousands of young black males.

"5. Any previous proper identification or failure to identify the defendant.”

Defendant viewed some 150 photographs on two occasions and was never positive until he saw defendant at the parole revocation hearing which was impermissive.

"6. Any identification prior to lineup or showup of another person as defendant.”

None.

"7. [T]he nature of the alleged offense and the physical and psychological state of the victim.”

Blackmer testified and the police witnesses confirmed that he was frightened and upset by the robbery. This must have impaired his perception of events.

"8. Any idiosyncratic or special features of defendant.”

None.

The factors favoring the trial court’s finding of an independent basis include favorable circumstances for witnessing the crime; the short time before the trial; the previous identification of defendant’s photograph; the reasonable accuracy of the description given, so far as the record reveals; and the fact that Blackmer identified no one else as the robber. Factors tending to undercut the identification include Blackmer’s excited state during the robbery; his failure to identify defendant’s picture shortly after the robbery; his lack of previous knowledge of the defendant; his confused testimony; his testimony that if he had not seen defendant at the parole hearing he would not have been able to identify him. He later said he would have been able to identify defendant even if he had not seen him at the parole hearing.

The trial court’s finding that the identification of the witness rested on an independent basis is clearly erroneous. There is no doubt in my mind that the showup at the parole hearing aided the complainant in positively identifying the defendant; and furthermore, if the complainant had not seen the defendant at this hearing, the complainant would not have identified the defendant as being the robber.

Defendant complains that prosecution questioning of his alibi witnesses to determine if defendant was employed at the time of the robbery was prejudicial error. These questions were improper. People v Johnson, 393 Mich 488, 496-497; 227 NW2d 523 (1975). The rationale for the questions —that they related to the credibility of the alibi witnesses—is dubious, and in any event, the probative value of the information as regards credibility is outweighed by the prejudice to the defendant, whose character was not in issue. People v Hammond, 394 Mich 627, 631; 232 NW2d 174 (1975).

The failure of defense counsel to object to these questions should not in this instance prevent defendant from raising them on appeal, because the questions brought forth answers which were so prejudicial that even if the objection had been raised, a curative instruction would not have overcome the error. In cases such as this one, the court on its own should correct the injustice. It is the duty of the prosecution to prosecute the guilty and protect the innocent. In this case the prosecution has innocently or knowingly not protected the innocent.

I would reverse and remand for a new trial.


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

text:
    PEOPLE v WILCOX
    Docket Nos. 31307, 31308.
    Submitted January 5, 1978, at Lansing.
    Decided June 5, 1978.
    Roger T. Wilcox was convicted in district court of failure, as a second-hand merchandise dealer, to record the purchase of a tape deck in a ledger book open to inspection and to take and-forward the seller’s thumb print with a statement of the nature of the property received to the city and state police. Wilcox appealed to circuit court. The Ingham Circuit Court, Thomas L. Brown, J., reversed, finding that the punishment provision of the statute under which defendant was convicted constituted cruel and unusual punishment. Both the people and the defendant appeal by leave granted. The people challenge the circuit court’s finding of unconstitutionality, and the defendant contends, among other things, that he should not be held criminally responsible for the' acts or omissions of an employee which occurred without his knowledge, consent or direction. Held:

    The statute which regulates second-hand and junk dealers does not provide that such a dealer may be held criminally liable for an employee’s violation of the statute, and since criminal liability does not arise vicariously except where provided by the Legislature, the defendant’s convictions may not stand. The-Court declines to reach the question of the constitutionality of the punishment provision.
    The district court conviction is reversed.
    1. Statutes—Pawnbrokers—Second-Hand Dealers—Criminal Law —Liability for Employees’ Violations—Legislative Intent.
    The Legislature has provided that pawnbrokers are liable for their employees’ violations of the law regulating pawnbrokers but has not so provided in an act regulating second-hand and junk dealers; this distinction is strong evidence that the Legislature did not intend second-hand dealers to be responsible for their employees’ violations (MCL 445.408, 446.219; MSA 19.718, 19.599)._
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 133, 134, 138.
    53 Am Jur 2d, Master and Servant §§ 426-428.

       21 Am Jur 2d, Criminal Law § 131.

       73 Am Jur 2d, Statutes §§ 187,188.

      2. Criminal Law—Criminal Liability—Vicarious Liability.
    Criminal liability does not arise vicariously unless the Legislature so provides.
    3. Statutes—In Pari Materia—Pawnbrokers—Second-Hand Dealers—Legislative Intent.
    The doctrine of in pari materia is applicable to two acts, one regulating pawnbrokers and the other regulating second-hand dealers, where both were enacted in the same session of the Legislature; the two acts must be construed together to arrive at a definition of the legislative intent (MCL 445.401 et seq., 446.201 et seq.; MSA 19.711 et seq., 19.581 et seq.).

    4. Criminal Law—Employers and Employees—Vicarious Liability —Statutes.
    A defendant co-partner in a second-hand store may not be held criminally liable for an employee’s violation of a statute which regulates second-hand and junk dealers where the violation occurred without the knowledge, consent or direction of the defendant (MCL 445.401 et seq.; MSA 19.711 et seq.).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, and Lee Wm. Atkinson, Chief Appellate Attorney, for the people.

      Farhat, Burns & Story, P. C. (by Vittorio E. Porco), for defendant on appeal.
    Before: V. J. Brennan, P. J., and D. E. Holbrook and R. B. Martin, JJ.

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

   V. J. Brennan, P. J.

Both plaintiff and defendant Roger T. Wilcox appeal the reversal by Ingham County Circuit Judge Thomas L. Brown of defendant’s 54-A District Court conviction for failure as a second-hand merchandise dealer to record the purchase of a tape deck in a ledger book open to inspection, contrary to MCL 445.404; MSA 19.714, and for failure to take and forward the seller’s thumb print with a statement of the nature of the property received to the city and state police, contrary to MCL 445.472; MSA 19.740(2). Plaintiff challenges the finding below by Judge Brown that the penalty provision of MCL 445.408; MSA 19.718 is constitutionally unsound cruel and unusual punishment. Defendant raises several statutory allegations of error. However, discussion of defendant’s principal claim of error will make unnecessary consideration of the parties’ remaining claims.

The facts of this case are simply stated. Defendant and his brother Dale H. Wilcox are partners in Wilcox Second Hand Store in Lansing, Michigan. On January 22, 1975, Curtis Cousineau went to defendant’s store to purchase an automobile tape deck to replace one stolen from his car earlier that day. On a counter in the store, Cousineau saw the tape deck which had been stolen from his car. He then reported the theft and his observations at defendant’s store to the Michigan State University Police Department.

Later that same day, Detective Sergeant Dunlap of the Michigan State University Police Department and Detective Behrmann of the Lansing Police Department arrived at defendant’s store and located the tape deck. The detectives asked two of defendant’s employees to show them the pawn ticket and ledger entry on the item, but the employees were unable to do so. Detective Dunlap confiscated the tape deck.

Subsequently, defendant and his brother were each charged in a two-count complaint for violating provisions of MCL 445.404; MSA 19.714 and . MCL 445.472; MSA 19.740(2). On October 14, 1975, defendants were tried by jury in 54-A District Court, Ingham County, Michigan. Defendant’s brother was acquitted; defendant was found guilty on both counts.

Although sentence was deferred, MCL 445.408; MSA 19.718 mandates a one-year suspension of defendant’s license to operate a second-hand store for failure to record the purchase of the tape deck in a ledger and permits a fine of from $10 to $100 and/or six months imprisonment. For failure to take and forward the seller’s thumbprint, MCL 445.475; MSA 19.740(5), and MCL 750.504; MSA 28.772, provide for a fine of up to $100 and imprisonment for up to 90 days.

Defendant appealed to Ingham County Circuit Court on October 28, 1975. Judge Brown concluded that defendant could be held criminally liable for the acts of his employees. However, he ruled that the one-year suspension of defendant’s license constituted cruel and unusual punishment, and so ordered the reversal of defendant’s conviction.

Defendant’s principal claim is that the second hand and junk dealers act, specifically MCL 445.401 et seq.; MSA 19.711 et seq., will not support finding defendant copartner in a second-hand store criminally responsible for the acts or omissions of an employee which occurred without his knowledge, consent or direction.

In answer to defendant, plaintiff advances a number of theories justifying defendant’s vicarious liability. To begin, plaintiff maintains that the statute does not require scienter or intent, but rather imposes strict liability for violations. With this proposition we agree. Plaintiff also argues that a partner is responsible for violations by a copartner. Again we agree. However, we cannot accept plaintiff’s interpretation that this case represents an exception to the usual rule which prevents one person from being held criminally liable for the acts of another. Plaintiff argues that because defendant and his partner can be held responsible under the statute for violations of a copartner, then he should also be held for violations of an employee. Again we take exception. Finally, plaintiff contends that defendant should be liable because he was in the best position to prevent the statutory violations and that, unless defendant is held liable, second-hand dealers will be able to escape liability by simply pleading ignorance of their employees’ default. We do not find this claim credible.

However, looking more deeply into this problem, we find that three related pieces of legislation are involved. 1917 PA 273 regulates pawnbrokers, namely, persons who purchase articles from the public with an understanding that the article may be repurchased by the seller at an agreed price. MCL 446.201 et seq.; MSA 19.581 et seq. The second act involved in the case is 1917 PA 350 which regulates second-hand and junk dealers. MCL 445.401 et seq.; MSA 19.711 et seq. The third act, 1945 PA 231, provides additional regulations for pawnbrokers, second-hand dealers and junk dealers. MCL 445.471 et seq.; MSA 19.740(1) et seq.

Section 19 of the pawnbrokers act specifically provides that a pawnbroker is liable for the statutory defaults of his employees. Liability includes mandatory loss of license for one year. This section provides:

"Upon any such conviction of any person doing business as a pawnbroker under the provisions of this act, or on conviction of any clerk, agent, servant or employe of any such person, the license of such person shall forthwith be revoked by the mayor of the city or president of the village, and no part of the license fee of such party shall be returned to him, and no further license as a pawnbroker shall be granted to such person for the period of 1 year from the date of such revocation.” MCL 446.219; MSA 19.599. (Emphasis added.)

By contrast, § 8 of the second hand and junk dealers act under which defendant was convicted has no such comparable provision making a second-hand dealer liable for his employees’ defaults. Section 8 provides:

"Every person violating any of the provisions of this act shall be punished by a fine not exceeding 100 dollars, nor less than 10 dollars, or by imprisonment in the county jail not exceeding 6 months, or by both such imprisonment and fine. In case any person, corporation, copartnership or firm shall be found guilty of violating any of the provisions of this act, the license issued to such person, corporation, copartnership or firm shall be deemed to have been revoked ipso facto, and such person, corporation, copartnership or firm shall not be permitted to carry on such business within this state for a period of 1 year after such conviction.” MCL 445.408; MSA 19.718.

The significance of the difference in the two statutes is that in the case of pawnbrokers the Legislature declared that they would be liable for their employees’ wrongful acts, but did not so provide in the case of second-hand dealers. This distinction in treatment is strong evidence that the Legislature did not intend second-hand dealers to be responsible for their employees’ failure to follow the statutory requirements. Criminal liability does not arise vicariously unless the Legislature so provides:

"Unless he is [sic] in some way participates in, counsels, or approves of what the servant does, or, as it is sometimes put, unless he counsels, commands, aids, or abets, or procures the commission of, an act, an employer or principal is not, in the absence of a statute, criminally liable for the acts of his employee or agent.
”A statute may in certain instances fix criminal responsibility on an employer or principal for an act committed by his employee or agent.” 21 Am Jur 2d, Criminal Law, § 133, pp 203, 204. (Emphasis added.)

We also find significant the fact that the two acts regulating pawnbrokers and second-hand dealers weré enacted at the same session of the Legislature. Consequently, the doctrine of in pari materia is applicable. The two acts must be construed together to arrive at a definition of the legislative intent. See 21 MLP, Statutes, § 99. Under that doctrine, we find that in 1917 the Legislature was aware of the technique of making an employer liable for the defaults of his employees and agents. They purposely made pawnbrokers vicariously liable, but did not do so in the case of second-hand and junk dealers. Accordingly, defendant was correct in his assertion that he cannot be criminally liable for the default of his employee.

Though the statute intends to impose strict liability, the statute will not permit imposing criminal liability upon a defendant vicariously for the acts or omissions of his employees or agents. See People v DeClerk, 400 Mich 10, 20, fn 4; 252 NW2d 782 (1977). Consequently, we affirm the reversal of defendant’s convictions under both MCL 445.404; MSA 19.714 and MCL 445.472; MSA 19.740(2). However, we reverse on the basis specified in this opinion, which conflicts with the finding of Judge Brown that defendant could be held criminally liable for the acts of his employees. Because we so hold, we need make no representation at this time as to the constitutionality of the sentencing provision requiring suspension of defendant’s license. MCL 445.408; MSA 19.718.

Defendant’s conviction in district court is reversed.