text:
    PEOPLE v YOUNG
    Docket No. 77-4852.
    Submitted January 17, 1979, at Detroit.
    Decided May 1, 1979.
    Leave to appeal applied for.
    Walter Young and a companion were observed apparently sleeping in a car parked on the street. Police officers stopped to investigate. The passenger door was open and the dome light was on. As a uniformed officer approached, Young removed a tinfoil packet from his pocket and dropped it to the floor of the automobile. The officer, familiar with the use of such packets as a method of drug dispersal, seized and opened the packet which revealed an off-white powdery substance later determined to be heroin. Young was thereupon arrested and charged with possession of heroin. Following his preliminary examination, defendant brought a motion to quash the information and dismiss the charges. Recorder’s Court of Detroit, Susan D. Borman, J., granted defendant’s motion on the ground that there was no probable cause to seize the packet. The people appeal. Held:

    1. Only objects which an officer has probable cause to believe are evidence or implements of a crime may be seized and examined without a warrant. Anything less than probable cause for a search and seizure, in the absence of any individualized suspicion, would not be consistent with the constitutional guarantees against unreasonable searches and seizures.
    2. Any inference of criminality derived from the mere possession of a tinfoil packet is too expansive for purposes of the Fourth Amendment; the use of tinfoil packets to facilitate the drug trade is not so widespread and well known among policemen that the mere sighting of such packets is sufficient to establish the requisite probable cause for a search and seizure without a warrant.

      References for Points in Headnotes

       68 Am Jur 2d, Searches and Seizures §§ 23, 36, 41-45, 99.
    Validity under Federal Constitution of warrantless search of automobile—Supreme Court cases. 26 L Ed 2d 893.
    Search and seizure: Observation of objects in "Plain View”—Supreme Court cases. 29 L Ed 2d 1067.

       68 Am Jur 2d, Searches and Seizures §§ 41-45, 99.
    Validity under Federal Constitution of warrantless search of automobile—Supreme Court cases. 26 L Ed 2d 893.
    Search and seizure: Observation of objects in "Plain View”—Supreme Court cases. 29 L Ed 2d 1067.

       32 Am Jur 2d, Federal Practice and Procedure § 390.

       32 Am Jur 2d, Federal Practice and Procedure § 390.

      3. There is no justification for the search of an automobile without a warrant where an occupant put his hand in his pocket and either dropped or threw a tinfoil packet to the floor; such gestures are not so obviously evasive that the police could infer criminality and they establish no more than a mere suspicion, which is insufficient probable cause to search the automobile.
    4. The Court of Appeals will not reverse a trial court ruling at a suppression of evidence hearing unless that ruling is found to be clearly erroneous.
    Affirmed.
    J. H. Gillis, J., dissented and would hold that it would not be unreasonable to infer that defendant was attempting to get rid of incriminating materials when he reached into his pocket and removed a tinfoil packet which he dropped or threw on the floor of the vehicle. This obviously evasive action is a factor to be considered in determining probable cause and, when defendant’s suspicious actions are coupled with the officer’s knowledge of the use of such packets in drug dispersal from prior experience, was sufficient to justify the seizure of the packet. He would reverse.
    Opinion of the Court
    1. Searches and Seizures — Constitutional Law — Plain View — Warrants — Probable Cause.
    Seizure of objects within the plain view of a police officer in a place where he has a lawful right to be is not constitutionally proscribed for lack of a valid warrant; however, seizure under those circumstances is subject to the limitation that only objects which the officer has probable cause to believe are evidence or implements of a crime may be seized and examined.
    2. Searches and Seizures — Automobiles — Reasonable Grounds — Probable Cause — Constitutional Law.
    Limited investigatory searches and seizures of and from automobiles and occupants without warrants may not be premised upon anything less than probable cause.
    3. Searches and Seizures — Police — Narcotics — Tinfoil Packets — Probable Cause — Constitutional Law.
    The use of tinfoil packets to facilitate drug trade is not so widespread and well known among policemen that the mere sighting of such packets is sufficient to establish the requisite probable cause for a search or seizure; tin and aluminum foil have a vast number of legitimate and common uses, these commodities permeate American society resulting in almost daily contact with them in one form or another and any inference of criminal activity derived from their mere possession is too expansive for purposes of the Fourth Amendment.
    4. Searches and Seizures — Automobiles — Constitutional Law — Exigent Circumstances — Warrants — Contraband — Probable Cause.
    Exigent circumstances necessary to allow the immediate search of a movable vehicle do not serve to discharge the antecedent necessity of probable cause; only where there is probable cause to believe that contraband will be found at the time a search occurs will the investigation of an automobile’s contents be permitted without the procurement of a warrant.
    5. Searches and Seizures — Automobiles — Tinfoil Packets — Evasive Actions — Furtive Gestures — Warrants — Probable Cause.
    An evasive or furtive gesture of an occupant of an automobile by dropping or throwing a tinfoil packet to the floor of the automobile, by itself, does not justify the search of the automobile, but it may be considered as a factor and, in combination with other factors, could help to establish probable cause to search the automobile without a warrant.
    6. Searches and Seizures — Automobiles — Furtive Gestures — Tinfoil Packets — Mere Suspicion — Probable Cause.
    The search of an automobile without a warrant because of an alleged furtive gesture of an occupant of an automobile was not justified where the gesture consisted of the occupant’s putting his hand in his pocket and either dropping or throwing a tinfoil packet to the floor of the vehicle; such gestures are not so obviously evasive that the police could infer criminality and they establish no more than mere suspicion, which is insufficient probable cause to search the automobile.
    7. Searches and Seizures — Appeal and Error — Police — Tinfoil Packets — Probable Cause.
    The Court of Appeals needs more than a police officer’s naked allegation to consider an argument that tinfoil packets are readily identifiable as a means of drug conveyance; a circuit court’s dismissal of a charge of possession of heroin on grounds that a police officer lacked sufficient probable cause to search and seize should not be overturned where the record fails to supply an adequate description of a tinfoil packet and the appellate court is left to speculate as to the packet’s bulk and configuration.
    8. Searches and Seizures — Automobiles — Furtive Gestures — Evidence — Circumstantial Evidence — Tinfoil Packets — Inference of Criminality — Impelling Certainty.
    An inference of criminality may be drawn from circumstantial evidence only if it follows as an impelling certainty; the extent of a defendant’s furtive gesture when approached by a uniformed officer must be made apparent by the record or evidence to be helpful in determining whether defendant’s action of either dropping or throwing a tinfoil packet to the floor of an automobile would support an inference of criminality as an impelling certainty.
    9. Appeal and Error — Criminal Law — Evidence — Motion to Suppress — Clearly Erroneous Rule.
    The Court of Appeals will not reverse a trial court’s ruling at a suppression of evidence hearing unless that ruling is found to be clearly erroneous.
    Dissent by Gillis, J.
    10. Searches and Seizures — Automobiles — Narcotics — Evasive Actions — Furtive Gestures — Probable Cause.

      An obviously evasive action by a person who is aware that he is being observed by the police is one factor to be considered as probable cause for a search without a warrant, and while a furtive gesture standing alone does not create probable cause, in a fact situation where a defendant reached into his pocket, removed a packet and threw it to the ñoor of an automobile as a police officer approached, it is not unreasonable to infer that defendant was attempting to get rid of the possession of incriminating material and these suspicious actions, when coupled with the officer’s knowledge of the use of such packets in drug dispersal from prior experience, was sufficient to justify the seizure of the packet.

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

      Parzen & Parzen, for defendant.
    Before: D. C. Riley, P.J., and J. H. Gillis and MacKenzie, JJ.
   D. C. Riley, P.J.

Defendant was arrested on September 2, 1977, and charged with possession of heroin in violation of MCL 335.341(4)(a); MSA 18.1070(41)(4)(a). The undisputed facts show that on the evening in question, police officers stopped to investigate a parked car which appeared to contain two sleeping men. The vehicle’s passenger door was open and the inside dome light was functioning. As the police approached, the men roused themselves, at which time defendant removed a tinfoil packet from his pocket and dropped it to the floor of the automobile. One of the officers, familiar with the use of such packets as a method of drug dispersal, seized and opened the packet, which contained an off-white powdery substance later determined to be heroin. Defendant was immediately arrested and taken into custody.

Following the preliminary examination, defendant brought a motion to quash the information and dismiss the case on the grounds that the police officer lacked sufficient probable cause to confiscate and open the tinfoil packet. The trial court granted this motion and the people appeal as of right.

Initially, we observe that the expropriation of the packet cannot be sustained by reference to the "plain view” doctrine, which holds that the seizure of objects within the plain view of a police officer, in a place where he has a lawful right to be, is not constitutionally proscribed for lack of a valid warrant. People v Hunter, 72 Mich App 191, 199; 249 NW2d 351 (1976), People v Triplett, 68 Mich App 531; 243 NW2d 665 (1976), lv den 397 Mich 842 (1976) . However, this exception is subject to the further limitation that only objects which the officer has probable cause to believe are evidence or implements of a crime may be seized and examined. People v Ridgeway, 74 Mich App 306, 311-312; 253 NW2d 743 (1977), lv den 401 Mich 831 (1977) .

Here there is no dispute that, under the circumstances at bar, the officers’ investigation of the vehicle was proper. The occupants of the automobile could have been in need of assistance for any of a number of reasons. Hence, the crucial question thus becomes not whether the officer was lawfully in a place to observe, but rather, did what he observe constitute probable cause to believe that the object seized was evidence or an implement of crime.

At this juncture we reach plaintiffs contention that probable cause is no longer required for a limited search and seizure of the kind conducted by the police in this case, but that such an investigation may be premised upon a lesser standard of "reasonable grounds”. Plaintiff argues, erroneously, that the facts of Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), and United States v Martinez-Fuerte, 428 US 543; 96 S Ct 3074; 49 L Ed 2d 1116 (1976), indicate that, consistent with the Fourth Amendment, the police may, in cases such as this, conduct limited investigatory searches and seizures based upon grounds less than probable cause in the absence of any individualized suspicion. Terry involved the validity of a surface search or "frisk” of the outer clothing of a defendant with whom the officer had contact where the officer reasonably believed that he was dealing with an armed and dangerous person. In authorizing a limited intrusion to search for weapons, the holding in Terry was specifically premised upon, and limited to, the concern for the safety of law enforcement agents. Here it cannot be argued that any solicitude for the officers’ safety because of hidden weapons could justify opening the packet.

United States v Martinez-Fuerte, supra, is also wholly inapposite as it deals with the dramatically different conditions relevant to a border search where a more relaxed Fourth Amendment standard has been held to apply. Nor does a review of the case law and remaning authority cited by plaintiff warrant imposition of a lesser standard than probable cause in the present case.

Next, the state broadly urges us to hold that the time has come (in the evolution of the law) for the courts to realize that the use of tinfoil packets to facilitate drug trade is so widespread and well known among policemen that the mere sighting of such packets is sufficient to establish the requisite probable cause. We decline such a historical invitation. Defendant correctly points out that tin and aluminum foil have a vast number of legitimate and common uses; these commodities permeate American society resulting in almost daily contact with them in one form or another. Any inference of criminal activity derived from their mere possession is too expansive for purposes of the Fourth Amendment.

We acknowledge that this Court has previously used language ostensibly favoring the people’s position. In People v Ridgeway, supra, at 314, where a police officer observed a tinfoil packet on the floor of defendant’s car, the Court stated:

"We now consider the strongest support for a finding of probable cause, viz., the officer’s knowledge that tinfoil packets like the one on the floor of the car often contain narcotics. Given the officer’s experience in narcotics law enforcement, his suspicion that the packet contained some controlled substance must be respected. The question is extremely close, but we believe that the officer did have probable cause to believe that the packet contained a controlled substance.”

However, in that case the officer also detected the odor of marijuana when defendant was stopped. The inference that marijuana users would be in possession of narcotics may be entitled to some weight according to the Court. The additional circumstance of marijuana smoke in Ridgeway renders it inadequate precedent for plaintiffs position. See also People v Falconer, 76 Mich App 367, 369; 256 NW2d 597 (1977), lv den 402 Mich 816 (1977), holding that a police officer’s suspicion that manila coin envelopes, being exchanged by a defendant for money, contained narcotics, did not by itself constitute probable cause for either arrest of the defendant or a search of the defendant’s car.

Lastly, the people contend that the additional circumstances present in this case, taken in combination, are sufficient to establish probable cause, to wit: the officer’s prior experience with tinfoil packets, defendant’s furtive gesture, and the exigent circumstances of a potentially mobile vehicle. The latter ground merits only brief discussion. The exigent circumstances allowing immediate search of a movable vehicle is an exception to the Fourth Amendment’s warrant requirement. It does not serve to discharge the antecedent necessity of probable cause. Only where there is probable cause to believe that contraband will be found at the time the search occurs will the exception catalyze permissible investigation of the auto’s contents without the procurement of a warrant. People v Strong, 77 Mich App 281, 284-285; 258 NW2d 205 (1977), People v Daniels, 50 Mich App 754, 758; 213 NW2d 780 (1973), lv den 391 Mich 828 (1974). See generally, 1 Wharton, Criminal Procedure (12th ed), § 151, p 321.

The remaining facts, however, are more troubling. Although insufficient standing alone, the use of tinfoil packets may be considered in combination with other elements in determining the existence of probable cause. One such factor is an evasive or "furtive” gesture by one aware that he is under police observation. As in the case of tinfoil packets, a mere furtive gesture, standing alone, does not create probable cause to search a vehicle. People v Howell, 394 Mich 445, 447; 231 NW2d 650 (1975), People v Boudah, 61 Mich App 563, 566; 233 NW2d 84 (1975), People v Obadele, 58 Mich App 139, 143; 227 NW2d 258 (1975), People v Nelson Pitts, 40 Mich App 567, 576; 199 NW2d 271 (1972), lv den 388 Mich 791 (1972), People v Reeves, 23 Mich App 183, 188; 178 NW2d 115 (1970). See also Anno: Search & Seizure: Furtive Movement or Gesture as Justifying Police Search, 45 ALR3d 581. The rationale behind this rule was considered in People v Hall, 40 Mich App 329, 335; 198 NW2d 762 (1972), quoting People v Superior Court of Yolo County, 3 Cal 3d 807, 817-818; 478 P2d 449; 91 Cal Rptr 729 (1970):

" 'The difficulty is that from the viewpoint of the observer, an innocent gesture can often be mistaken for a guilty movement. He must not only perceive the gesture accurately, he must also interpret it in accordance with the actor’s true intent. But if words are not infrequently ambiguous, gestures are even more so. Many are wholly nonspecific, and can be assigned a meaning only in their context. Yet the observer may view that context quite otherwise from the actor: not only is his vantage point different, he may even have approached the scene with a preconceived notion—consciously or subconsciously—of what gestures he expected to see and what he expected them to mean. The potential for misunderstanding in such a situation is obvious.
" It is because of this danger that the law requires more than a mere "furtive gesture” to constitute probable cause to search or to arrest. ’ ”

In People v Nelson Pitts, supra, police officers stopped the defendant’s car because it had no license plate light and saw a small prescription bottle in the defendant’s hand which he dropped between the seat and door as they approached. A search of the car revealed it to contain heroin. The Court held that the circumstances did not justify the search, stating that the movement by the defendant was not so obviously evasive that the police could infer criminality. The circumstances, said the Court, established no more than mere suspicion.

In the instant case, the furtive gesture consisted of the defendant putting his hand in his pocket and either dropping or throwing a tinfoil packet to the floor of the vehicle. Such a gesture would seem to be closely akin to that in Pitts which was found to establish no more than mere suspicion.

This gesture, combined with the suspicion aroused by the tinfoil packet, may have been sufficient to establish probable cause. Nevertheless, we refuse to overturn the decision of the lower court for the following reasons. First, we note that the record fails to supply us with an adequate description of the "tinfoil packet”. We are, therefore, left to speculate as to its bulk and configuration—whether large enough to hold a sandwich, or perhaps the size of a gum wrapper. Absent such evidence, we have no basis, apart from the officer’s naked allegation, for considering the argument that they are so readily identifiable as a means of drug conveyance.

In the same vein, the extent of defendant’s "furtive gesture” is not apparent. Defendant either "dropped” or "threw” the packet to the floor of the vehicle. No other circumstances helpful to us are given surrounding the incident. As this Court noted in People v Strong, 77 Mich App 281, 286; 258 NW2d 205 (1977):

" 'Furtive gestures’ have been defined as 'obviously evasive actions’. People v Nelson Pitts, 40 Mich App 567, 576; 199 NW2d 271 (1972), People v Evans, 3 Mich App 1, 7; 141 NW2d 668 (1966). An inference of criminality may be drawn from circumstantial evidence only if it follows 'as an impelling certainty’. People v Davenport, 39 Mich App 252, 257; 197 NW2d 521; 56 ALR3d 942 (1972).”

We are not constrained to say that, in light of the record before us, an inference of criminality follows "as an impelling certainty”. The similar facts holding of People v Nelson Pitts, supra, supports this conclusion.

Further, we do not reverse a trial court’s ruling at a suppression hearing unless that ruling is found to be "clearly erroneous”. People v White, 84 Mich App 351, 354; 269 NW2d 598 (1978), People v Ulrich, 83 Mich App 19, 21; 268 NW2d 269 (1978), People v Robertson, 81 Mich App 446, 449; 265 NW2d 365 (1978), People v Terrell, 77 Mich App 676, 679; 259 NW2d 187 (1977), People v Triplett, supra, at 535, People v Stewart, 25 Mich App 204, 206; 181 NW2d 14 (1970), People v Smith, 19 Mich App 359, 367; 172 NW2d 902 (1969). As the question in the present case is a close one, this standard does not mandate reversal of the court below.

Affirmed.

MacKenzie, J., concurred.

J. H. Gillis, J.

(dissenting). At 1:30 a.m. on September 2, 1977, defendant and a companion were observed apparently sleeping in a car parked on the street. The passenger door was open and the dome light was on. As a uniformed officer approached on the passenger side of the car, defendant took a tinfoil packet out of his pocket and dropped it on the floor. From experience, the officer knew that similar packets were often used to transport drugs. The packet was seized and opened, revealing a substance which was later determined to be heroin. Defendant was thereupon arrested.

Following the preliminary examination and bind over, the lower court granted defendant’s motion to quash the information. Relying upon the case of People v Falconer, 76 Mich App 367; 256 NW2d 597 (1977), the court held that there was not probable cause to seize the packet.

In Falconer, the defendant was observed on three occasions removing manila coin envelopes from a car and exchanging them for money. The defendant was unaware that he was under police observation at the time. The Court held there was no probable cause to arrest the defendant or search the car, saying:

"There was no testimony that the officer was in possession of any information from any source linking the defendant, any of the persons who approached the defendant, the car, or the locality, with prior narcotics involvement. The sole ground of the arrest and search was the officer’s suspicion that the manila coin envelopes contained narcotics. Such suspicion does not constitute probable cause for either the arrest of the defendant or the search of the car.” Id., at 369.

In People v Ridgeway, 74 Mich App 306; 253 NW2d 743 (1977), the defendant was stopped for a minor traffic offense. The officers smelled marijuana and observed a tinfoil packet on the floor. In determining that there was probable cause, the Court placed much reliance upon the officers’ knowledge that tinfoil packets such as the one in defendant’s car often contain narcotics. The Court gave some weight to the fact that the officers smelled marijuana, since it might be inferred that one who smokes marijuana may also be in possession of more dangerous drugs. However, it is readily apparent that this was not the controlling factor in the Court’s decision. As the Court noted:

"We are not overly impressed by that inference, but it may be entitled to some weight.”

In the instant case, like in Ridgeway, the officer testified that he had seen packets similar to the one observed and that in his experience packets of that type ordinarily contain narcotics or other controlled substances.

In addition, defendant’s actions can certainly be characterized as "suspicious”. Defendant was partially lying down in the front seat of the car. A marked police car stopped next to the automobile. As a uniformed officer walked around the rear of the car, defendant got up. As the officer approached the passenger door, defendant reached into his pocket, removed the packet, and threw it to the floor. I do not believe it is unreasonable to infer from these circumstances that defendant was attempting to get rid of the possession of incriminating material.

An obviously evasive action by a person who is aware that he is being observed by the police is one factor to be considered in the probable cause formula. People v Nelson Pitts, 40 Mich App 567, 576; 199 NW2d 271 (1972). While a "furtive gesture” standing alone does not create probable cause, id., in the instant case the defendant’s actions, when coupled with the officer’s knowledge from prior experience, was sufficient to justify the seizure of the packet.

I would reverse.


source: Caselaw Access Project

author: R. B. Burns, P.J.

license: Public Domain

text:
    PBJ COMPANY, INC v BEN DUTHLER, INC
    Docket No. 78-205.
    Submitted March 8, 1979, at Grand Rapids.
    Decided May 1, 1979.
    PBJ Company, Inc., entered into a lease with Ben Duthler, Inc., wherein PBJ leased a building to Ben Duthler for a term of 12-1/2 years at a fixed minimum rental plus a percentage of gross sales over $3,000,000. Ben Duthler was to operate a supermarket on the premises. Ben Duthler occupied the building for the entire term of the lease, operating a supermarket for approximately 11 years and thereafter using the building as a warehouse, after moving the supermarket to another location. No percentage rentals were paid after the supermarket operation was moved. PBJ brought an action against Ben Duthler for damages for breach of the lease, alleging that the terms of the lease contemplated use of the building for a retail sales operation, generating percentage rental payments, for the entire term of the lease. The Kent Circuit Court, John T. Letts, J., entered a judgment of no cause of action, and plaintiff appeals. Held:

    The trial court erred in its decision that percentage rentals could not be collected as damages. The lease provision regarding the use of the building, together with the scheme of rentals, raises an ambiguous inference that the defendant was required to operate a supermarket so as to generate percentage rentals. Parol evidence offered by the plaintiff to show such intent should have been admitted in order to help resolve the ambiguity.
    Reversed and remanded.
    1. Evidence — Contracts — Parol Evidence — Admissibility.
    Parol evidence offered to prove the terms of a contract is admissible where such evidence is not inconsistent with the terms of the contract.
    References for Points in Headnotes

       30 Am Jur 2d, Evidence §§ 1016, 1069, 1070.
    The parol evidence rule and admissibility of extrinsic evidence to establish or clarify ambiguity in written contract. 40 ALR3d 1384.

      2. Contracts — Leases — Ambiguities — Intent of Parties — Parol Evidence.
    Parol evidence is admissible to resolve an ambiguity on the intent of the parties; resolution of an ambiguity in a lease which requires a determination of the intent of the parties may be made by inferences from the circumstances in which the lease was made.

      Godfrey Vander Werff, for plaintiff.

      Luyendyk, Hainer, Hathaway & DeJong (by John H. Carlson), for defendant.
    Before: R. B. Burns, P.J., and Allen and MacKenzie, JJ.
   R. B. Burns, P.J.

Plaintiff had a judgment of no cause of action entered against it following a bench trial on its claim for rents allegedly due under a lease contract, and appeals. We reverse.

In 1963, the parties in this case entered into a contract whereby plaintiff agreed to construct a building in its Kalamazoo shopping center to defendant’s specifications and to lease the building to defendant for use as a supermarket. The lease term was 12-1/2 years, and the rental terms provided for a "fixed minimum rental” of $30,000 per year, plus an additional "percentage rental” of 3/4 of one per cent of gross sales over $3,000,000, and 1/2 of one per cent of gross sales over $4,000,000 per year. Defendant occupied the building in 1963, and remained in possession throughout the lease term. Defendant operated a supermarket in the building until 1974, when it moved its retail operations across the street into a new shopping center. The building was thereafter used as a warehouse until the expiration of the lease. The fixed minimum rental was paid throughout the lease term. Gradually increasing percentage rentals were paid from 1966 through 1974, culminating in a maximum payment of approximately $26,000. Since the use of the building as a warehouse did not generate sales, no percentage rentals were paid after 1974.

The issue presented for the trial court’s resolution was whether defendant breached the lease agreement by stopping retail operations in the building before the end of the lease term, causing plaintiff the loss of percentage rentals which otherwise would have been paid. Plaintiff argued that the lease required defendant to maintain its supermarket operation throughout the lease term, relying in part on parol evidence tending to show that the parties contemplated payment of percentage rentals throughout the lease term, and in part on the "use” provision of the lease:

"The premises during the term of this Lease shall be used by the LESSEE for the operation of a discount grocery store super market, including such other operations as are normally conducted in this type of business.”

The trial court found that the "such other operations” clause of the "use” provision unambiguously permitted the warehouse operation, and excluded the parol evidence as inadmissible under the parol evidence rule. Additionally, the trial court found that a default provision authorizing re-entry, reserving as damages the minimum rent accruing subsequent to re-entry, precluded assessment of percentage rentals as damages even in the event that warehousing was a breach of the lease. Lastly, the trial court held that, even if admissible, the parol evidence would not have changed its interpretation of the lease.

Although plaintiff was permitted to make a special record on some of the parol evidence it sought to introduce, other parol evidence was excluded totally. Thus, we cannot say that the failure to admit parol evidence was harmless error because it would not have affected the outcome. Although the trial court concluded that the parol evidence would not have changed its interpretation, it did not have all of the evidence before it.

The trial court’s conclusion that percentage rentals could not be collected as damages is clearly erroneous. GCR 1963, 517.1. The re-entry clause, even if construed as limiting damages, was inapplicable, because plaintiff did not re-enter. Elsewhere, the lease contained a clause reserving for plaintiff its common law remedies, which could include percentage rentals which would have been payable but for the breach of the lease.

Evidence that the "such other operations” clause of the "use” provision authorized only operations concomitant to the operation of a supermarket on the premises, and not warehousing, would not be inconsistent with the terms of the lease. Such evidence was, therefore, admissible. Union Oil Co of California v Newton, 397 Mich 486; 245 NW2d 11 (1976).

The "use” provision, coupled with the scheme of rentals involving fixed minimum and percentage rentals, raises an ambiguous inference that defendant was required to operate a supermarket business so as to generate percentage rentals. Resolution of the ambiguity requires a determination of the intent of the parties, which may be inferred from the circumstances in which the lease was made, see Kroger Co v Bonny Corp, 134 Ga App 834; 216 SE2d 341 (1975), Ingannamorte v Kings Super Markets, Inc, 55 NJ 223; 260 A2d 841 (1970), Professional Building of Eureka, Inc v An ita Frocks, Inc, 178 Cal App 2d 276; 2 Cal Rptr 914 (1960), and the relative substantiality of the minimum rent, Bobenal Investment, Inc v Giant Super Markets, Inc, 79 Mich App 31; 260 NW2d 915 (1977). Parol evidence is admissible to resolve the ambiguity and determine the intent of the parties. Goodwin, Inc v Orson E Coe Pontiac, Inc, 392 Mich 195; 220 NW2d 664 (1974), Lippman v Sears Roebuck & Co, 44 Cal 2d 136; 280 P2d 775 (1955).

Reversed and remanded for a new trial. Costs to plaintiif.


author: Quinn, J.

text:
    PEOPLE v. BUCHANAN.
    1. Divorce — Support Payment Delinquencies — Order for Arrest-Writ of Attachment.
    A writ of attachment or order for arrest of a party in a divorce action who is delinquent in making child support payments is a criminal process (GCR 1963, 727.4).
    2. Process — Order for Arrest — Service.
    Statute and court rule prescribing the manner of service of civil process in contempt proceedings do not apply to arrest of a party in a divorce action on a writ of attachment for delinquency in making child support payments (CLS 1961, § 600.1968 [4]; GCR 1963, 107.2, 727.3, 727.4).
    3. Same — Order for Arrest — Service.
    Showing of writ of attachment for arrest to a party in a divorce action arrested for delinquency in child support payments, and service of a copy of the writ on him, held, not necessary to make arrest valid, so that resistance to the arrest is criminal (CL 1948, § 750.479).
    References for Points in Headnotes
    [1, 2] 5 Am Jur 2d, Arrest §52 et seq.; 24 Am Jur 2d, Divorce and Separation § 862 et seq.

    [3] 5 Am Jur 2d, Arrest § 91.
    Appeal from Alma; Corkin (Leo W.), J.
    Submitted Division 2 June 6,1967, at Lansing.
    (Docket No. 2,668.)
    Decided December 5, 1967.
    Ronald Foster Buchanan was charged with knowingly and wilfully obstructing, resisting, or opposing a deputy sheriff attempting to execute a bench warrant or writ of attachment for his arrest.
    Motion to qnash denied.
    Defendant appeals.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Jack T. Arnold, Prosecuting Attorney, for the people.

      Fortino, Plaxton & Moskal, for defendant.
   Quinn, J.

Defendant was arrested on a charge that he knowingly and wilfully obstructed, resisted or opposed a deputy sheriff of Gratiot county while the officer was attempting to execute a bench warrant or writ of attachment for defendant’s arrest, contrary to the provisions of CL 1948, § 750.479 (Stat Ann 1954 Rev § 28.747). Preliminary examination was had and defendant was bound over to circuit court for trial. After the information was filed, defendant moved to quash because the officer did not have the writ of attachment in his possession at the time of arrest, did not read it to defendant, and did not serve a copy thereof on defendant, hence the attempted arrest was unlawful and defendant could legally resist it. This motion was denied and defendant appeals.

The issue for decision is whether one may be legally arrested on a writ of attachment issued in a divorce action to enforce support payments for minor children ordered in the judgment of divorce without being shown the writ and served with a copy.

There is no dispute on the facts; they have been stipulated as follows: defendant is the defendant in a divorce action filed in Gratiot county in which he was ordered to make support payments for minor children. He is delinquent in such payments and was so notified by the friend of the court for Gratiot county, and he failed to respond to such notice. Thereafter, the friend of the court petitioned for and obtained the writ of attachment here involved. Defendant concedes all actions taken to obtain the writ were proper. (See GCR 1963, 727.3 and 727.4.) The writ was delivered to the sheriff for execution; the arresting officer knew the writ was in existence, although he did not have it in his possession at the time of arrest. At the time of defendant’s apprehension, the officer said to him, “I am arresting you on a writ of attachment for failure to pay support money.” Defendant attempted to run and a scuffle ensued which gave rise to these criminal proceedings.

Defendant contends that the writ involved is civil process, that PA 1961, No 236, § 1968(4) (CLS 1961, § 600.1968 [4] [Stat Ann 1962 Rev § 27A.1968(4)]) and G-CR 1963, 107(2) prescribe the manner of service, and that service in any other manner is unlawful and resistance thereto is not a violation of CL 1948, § 750.479, supra.

This argument falls because its basic premise is erroneous. The process involved is criminal in nature (see Carnahan v. Carnahan (1906), 143 Mich 390; In re Wilkowski (1935), 270 Mich 687), and the statute and rule relied on do not apply. We hold defendant’s arrest was legal and the motion to quash was properly denied.

Affirmed.

Lesinski, C. J., and Baum, J., concurred.


author: Lesinski, C. J.

text:
    McKINLAY v. CROSSMAN.
    1. Municipal Corporations — City Council — Qualifications of Members.
    Neither a writ of quo warranto nor a writ of mandamus will lie to correct an alleged disqualification of a eity councilman where eity charter provision makes the city council the judge of the eligibility and qualifications of its members (CLS 1961, § 600.4501; City of Sylvan Lake Charter [1947], § 6.5).
    2. Appeal and Error — Rehearing.
    Any party has 20 days after a decision by the Court of Appeals to file a motion for rehearing (GrCR 1963, 819.4).
    3. Municipal Corporations — City Council — Qualifications of Members.
    A change in membership of eity council by reason of staggered elections does not affeet the right of the council, accorded by the eity charter, to determine the eligibility and qualifications of its members, even though a former opponent of plaintiff, seeking injunction against council in declaring his seat vacant, subsequently became a member and introduced motion that resulted in declaration of vacancy because of plaintiff’s disqualification (City of Sylvan Lake Charter [1947], §6.5).
    References for Points in Headnotes
    [1, 3] 37 Am Jur, Municipal Corporations § 254.
    [2] 5 Am Jur 2d, Appeal and Error § 981.
    Appeal from Oakland; Adams (Clark J.), J.
    Submitted Division 2 June 6, 1967, at Lansing.
    (Docket No. 2,697.)
    Decided December 5, 1967.
    Action by John D. McKinlay against Fred Cross-man, John Hanson, Thomas J. McHugh and Stanley Filkins, and the City of Sylvan Lake, seeking a permanent injunction to restrain defendants from interfering with continued exercise by McKinlay of duties of councilman and to restrain them from any attempt to replace him through an election. Summary judgment for defendants. Plaintiff appeals.
    Affirmed.

      Joseph T. Brennan, for plaintiff.

      Reese <& Parenti, for defendants.
   Lesinski, C. J.

Plaintiff appeals from a summary judgment below granted to defendants.

This case, and the controversy involved, is a familiar one to this Court. The fact situation is reported in Houston v. McKinlay (1966), 4 Mich App 94, and Crossman v. Hanson (1966), 4 Mich App 98. In the former ease we determined that where a city charter provision makes the city council the judge of the eligibility and qualifications of its members, that a writ of quo ivarranto will not lie to correct an alleged disqualification of a city councilman. In the latter case, it was the holding of this Court that mandamus does not lie to direct the city council to determine the eligibility and qualifications of its members. In Crossman, supra, at 102, we noted that the city council’s determination not to take formal action was based on erroneous legal advice, and that the council is the legal entity which is empowered to act under the city charter.

Our decisions of July 26, 1966 in the above cases prompted immediate action. On August 9, 1966, a special council meeting was held. The minutes reveal full attendance. A vote was taken on motion of Councilman Crossman, supported by Councilman Filldns, that the council judge that Mr. McKinlay, plaintiff herein, did not have the necessary qualifications for office, is not eligible to be a member of the council, and that the seat be declared vacant. Three of the five gentlemen voted for the motion; two abstained. Parenthetically we note that one of those two was Mr. McKinlay himself. The motion carried.

On August 25, 1966, plaintiff instituted a new action in circuit court, seeking a permanent injunction to restrain the defendants from interfering with his continued exercise of the duties of councilman and to restrain them from any attempt to replace him through an election called for that purpose. Plaintiff’s complaint also sought the issuance of an order to show cause, which was granted. In answer thereto, the defendants filed a motion for summary judgment. On September 7, 1966, the trial court heard oral argument on both the show cause and the motion for summary judgment and granted the latter. The court’s ruling is a part of the record on appeal. In deciding that the defendants were entitled to a summary judgment, the court found that the council’s actions were “literally directed” by this Court; that the time had come for an end to this litigation; and that the council’s action was both prompt and proper under the circumstances of the instant case.

Plaintiff’s current contention is that the council’s August action and the subsequent judicial approval given to it below should not be condoned by this Court. Since we did suggest the possibility of such action, it would be incongruous to expect us to reverse a judgment which condoned it below. However, plaintiff alleges that the language of Gross-man, supra, relied on below, was mere dictum. We agree. However, it was not incorporated therein out of a desire for profundity, but rather to indicate that although the judiciary was without power to grant relief under the facts presented, there were other available avenues to those who felt aggrieved. One such route was followed.

Plaintiff asserts that this language would not have appeared in Grossman if we had been fully apprised of all the facts. By this claim plaintiff means that we were not apprised of the fact that two of the present members of the city council were not serving in that capacity when this cause of action arose. There are numerous answers to this contention. First, since the city charter was a part of the original records in these proceedings, we were aware that the charter provided for staggered elections. Second, the change in council membership does not affect the right of the council to determine the qualifications of its members. Third, the plaintiff here did not seek a rehearing after our decision in July, 1966, to apprise us of any additional facts, or to seek to correct our determination that the council had the power to judge the qualifications of its members, although it was his privilege to do so under CCR 1963, 819.4. This court rule gives any party 20 days in which to file such a motion. The city council took the action complained of 14 days after our decision was announced. If the plaintiff believed he had a valid reason for rehearing, he still had the opportunity to place this material before us in timely fashion.

Finally, the council in the instant case acted with promptness under the particular fact situation presented.

Prolongation of this opinion would be as fruitless as prolongation of the litigation of the instant case.

Affirmed. Costs to appellees.

Quinn and Baum, JJ., concurred.

       See City of Sylvan Lake Charter (1947), § 6.5.

       See CLS 1961, § 600.4501 (Stat Ann 1952 Rev-§ 27A.4501).

       See 373 Mieli lxviii.


author: Burns, J.

text:
    MOBILE HOME PARKS, INC., v. TOWNSHIP OF PARIS.
    1. Municipal Corporations — Ordinance—Water and Sewage— Trailer Parks.
    Ordinance which subjected all parcels of land in sanitary sewage disposal system to a hook-up fee, held, eorreetly applied to each individual unit of land in trailer park, where park owner platted land into mobile home sites, improved the sites for residential use, and rented them to families.
    2. Same — Equal Protection — Ordinance—Water and Sewage— Trailer Parks.
    Plaintiff trailer park owner was not denied equal protection of the law by application of sewer hook-up charge imposed by ordinance to each trailer site in his park, where ordinance does not establish classifications, but imposes a fee upon each parcel of land for residential use, there being no distinction between a lot which supports a trailer and one which supports a house (US Const, Am 14; Mich Const 1963, art 1, §2).
    3. Costs — Public Question — Trailer Park Sewer — Connection Pees.
    No costs are allowed in action to determine whether sewer connection fee for trailer park shall be based on a park or trailer site basis, a public question being involved.
    References for Points in Headnotes
    [1, 2] 51 Am Jur, Taxation § 416.
    [3] 5 Am Jur 2d, Appeal and Error § 1009.
    Appeal from Kent; Vander Wal (John H.), J.
    Submitted June 8, 1967, at Grand Rapids.
    (Docket No. 2,552.)
    Decided December 5, 1967.

      Complaint by Mobile Home Parks, Inc., a Michigan corporation, against Township of Paris to enjoin defendant from enforcing its township sewage ordinance. Judgment for defendant. Plaintiff appeals.
    Affirmed.

      Keith R. Wellington, for plaintiff.

      Vander Veen, Freihofer & Cooh, for defendant.'
   Burns, J.

Plaintiff appeals from the trial court’s order which dissolved a temporary restraining order prohibiting the defendant from enforcing its township sewage ordinance .and ordering plaintiff to comply with the ordinance.

Section 3 of the township sewage ordinance reads as follows:

“All parcels of land in the Paris township sanitary sewage disposal system No. 1 shall pay when hereafter connected to a sewer in addition to the cost of any extensions or laterals required to make such connection a hook-up charge of $100. Such hook-up is to be made in all cases within 18 months after sewer is available as defined by State law, further provided that this $100 hook-up charge shall be increased at the rate of $5 per year commencing January 1, 1967, to a maximum of $150.”

Plaintiff is a Michigan corporation and the owner of 23.72 acres of land located within the defendant’s boundaries. Plaintiff has been and is in the process of developing this tract of land into a trailer park and has subdivided the tract into 251 lots.

In May of 1966 plaintiff submitted an application requesting sewer services and tendered its check for $100. The application and cheek were returned to the plaintiff with an explanation that the application must include the individual identification of each trailer unit and that a hook-up charge of $100 per trailer unit was required. There were 16 families living in 20 trailers in the park. The lots varied from 44 feet to 50 feet in width and from 70 feet to 84 feet in length. Many of the lots have been improved and consist of a patio and a slab with underground utilities. Beside each slab there is a sewer riser and a water riser.

The trial court in a written opinion held:

“In the court’s opinion ‘all parcels of land in the Paris township sanitary sewage disposal system’ means each individual unit as applied to plaintiff’s property. Each parcel of land on which a trailer is located and placed upon a cement slab with special connections for water and sewage is the same in the court’s opinion as a lot upon which a residence can be built.”

On appeal, plaintiff claims the trial court misinterpreted the ordinance in holding that the plaintiff was required to pay a $100 hook-up charge for each individual unit of land upon which a trailer may be placed; and that such a construction is contrary to the equal protection clauses of Federal and State constitutions.

The acts of the plaintiff in platting the land into mobile home sites, improving the stands for semi-permanent residential use and renting them to individual families, divided the land into separate parcels. Under the facts of this case the trial court’s interpretation of the ordinance was correct.

The appellant has cited several cases. However, all of the cases cited deal with the sole issue of the reasonableness of the various classifications contained in ordinances. In the present case the ordinance does not establish any classifications for the imposition of the hook-up fee. The plaintiff was treated as any person or corporation who had subdivided a large tract of land into smaller individual parcels for residential use, and was charged accordingly. We can see no valid distinction between a lot which supports a residential trailer and a lot which supports a residential house. The plaintiff was not denied equal protection of the law but was given equal responsibility with other residents.

Judgment affirmed. No costs, a public question being involved.

Holbrook, P. J., and Wise, J., concurred.

       US Const, Am 14, § 1.

       Midi Const 1963, art 1, § 2.


author: Fitzgerald, P. J.

text:
    ESSLINGER v. ESSLINGER.
    1. Divorce — Disposition of Property.
    The trial court’s disposition of property interests in a divoree action will not be interfered with unless the appellate eourt is convinced it would have reached a different conclusion had they occupied the situation of the trial court in the proceedings.
    2. Same — Alimony—Modification of Judgment — -Time.
    A divorced wife may properly move for modification of alimony provision of a decree within 1 month after the final judgment of the trial eourt (CL 1948, § 552.28).
    References for Points in Headnotes
    [1] 24 Am Jur 2d, Divoree and Separation § 929 et seq.

    [2, 6] 24 Am Jur 2d, Divorce and Separation § 665 et seq.

    [3, 8] 24 Am Jur 2d, Divoree and Separation § 684.
    [4, 5, 7] 24 Am Jur 2d, Divoree and Separation § 674.
    [9] 24 Am Jur 2d, Divoree and Separation § 675 et seq.

    [10, 11] 24 Am Jur 2d, Divoree and Separation §§ 677, 678.
    [12] 24 Am Jur 2d, Divorce and Separation § 376 et seq.

    [13] 24 Am Jur 2d, Divorce and Separation § 540 et seq.

    [14] 24 Am Jur 2d, Divoree and Separation § 514 et seq.

    [15-17] 24 Am Jur 2d, Divoree and Separation § 626 et seq.

      3. Same — Change in Wife’s Health — Increase in Alimony.
    Change in a divorced wife’s health could be a valid basis for an increase in alimony payments.
    4. Same — Reopening of Proofs — Discretion of Court.
    Reopening of proofs in an action for divorce lies within the sound discretion of the trial court.
    5. Same — Reopening Proofs — Discretion of Court.
    Denial of divorced wife’s motion to reopen proofs held, not an abuse of discretion, where case was fully and completely tried only 5 weeks before motion was filed.
    6. Same — Modification of Judgment — Construction of Statutes— Hearing of Motion.
    The statute permitting modification of judgment of divorce is construed as requiring a trial court at least to hear a motion for the modification of the divorce judgment (CL 1948, § 552.28).
    7. Same — Modification of Judgment — Evidence—Discretion of Court.
    A trial court has the discretion to deny a motion to modify a judgment of divorce for lack of competent evidence to support the motion (CL 1948, § 552.28).
    8. Same — Modification of Judgment — Time—Health.
    Motion for modification of judgment of divorce, held, proper, where the ground alleged is that wife’s mental condition had changed since the judgment and she is now unable to work (CL 1948, § 552.28).
    9. Same — Modification of Judgment — Change of Circumstances.
    Court may, from time to time, on the petition of either of the parties to a divorce action, revise and alter the judgment provision for alimony or other allowance for wife and children, where there has been a substantial change of circumstances (CL 1948, § 552.28).
    10. Same — Alimony—Modification of Judgment — Husband’s Income.
    Divoreo judgments are subject to modification if the husband’s income diminishes (CL 1948, § 552.28).
    11. Same — Alimony—Modification—Future Diminution of Earnings.
    Possible future diminution of husband’s earnings is not a proper consideration in setting periodic alimony payments in divorce action, since the payments may be modified if diminution occurs.
    12. Same — Immaterial Evidence in Proceedins.
    Reception of immaterial evidence in a divorce action is not grounds for reversal since it is to be assumed, in the absence of convincing evidence to the contrary, that the court disregarded all immaterial evidence.
    13. Same — Alimony—Increase by Court op Appeals.
    A judgment awarding alimony to the wife in an action for divorce may be increased by the Court of Appeals in accordance with its findings as to adequacy (CL 1948, § 552.28).
    14. Same — Alimony—Ability op Wipe to Work.
    Concept of alimony being a punitive measure is outmoded, and divoreed wives are not entitled to be treated as incapacitated from working merely boeause they have not worked for many years.
    15. Same — Alimony—Ability op Wipe to Work.
    The ability of a wife to do some productive work in keeping with the standard of living to which she is accustomed is a valid factor to bo considered by the trial court in determining alimony.
    16. Same — Amount op Alimony — Conduct op Husband.
    The conduct of the husband is a proper subject of inquiry in reaching an equitable amount of alimony to be allowed, and the wife should not be deprived of her marital right of support to which she would be entitled but for the husband’s misconduct which resulted in divorce.
    17. Same — Increase op Alimony — Income op Husband.
    Alimony awarded divoreed wife is increased from $100 per week to $175 per week under record presented, showing, among other circumstances, husband had a present disposable income of $31,185 per year.
    Appeal from Oakland; Beer (William J.), J.
    Submitted Division 2 June 7, 1967, at Detroit.
    (Docket No. 2,473.)
    Decided December 5, 1967.
    Complaint for divorce by Jean K. Esslinger against John 0. Esslinger. Judgment of absolute divorce. Plaintiff appeals from denial of motion for increase in alimony, and from alimony provision in judgment of divorce.
    Judgment modified.

      Condit, Denison, Devine, Porter S Bartush, for plaintiff.

      Davis, Hayward, Rann & Slavens, for defendant.
   Fitzgerald, P. J.

Appellant is the divorced wife of defendant and she is appealing from a decision of the Oakland county circuit court which granted her a weekly alimony of $100, plus child support. We are asked to reconsider the evidence adduced at the trial, and additional evidence which, when taken together, would result in an increase in alimony to appellant to a suggested $200 per week.

The facts in the case may be stated concisely. Appellant alleged mental cruelty in her complaint for divorce. Appellee answered with a denial of her complaint, but chose not to offer proofs at the trial with the result tha,t the Oakland county circuit court granted the divorce, with the only remaining issue being that of setting permanent alimony and support of the three children of the marriage. Appellee, a 41-year-old physician, testified as to the following factors which were the basis for the court’s determination of alimony and support:

(1) His gross income for the years 1962 to 1965 averaged $63,642, with his 1965 gross income being $71,938; his average disposable income for the four years, after deducting business expenses and taxes, was $26,451.

(2) His annual minimum expenses were now anticipated to be $19,830. This amount includes life insurance premiums; child support under the temporary decree for the 2 boys at $30 per boy per week; alimony under the temporary decree of $100 per week to appellant; education and support of one daughter at $4,000 per year and living expenses of appellee, including rent, clothing and food.

(3) He is suffering from Paget’s disease of his pelvic bone which will necessitate the probable removal of his right leg in 10 to 15 years, reducing his capacity to work by 50%, considering his advanced age at that time and his physical condition, in his own opinion.

(4) Net value of all marital assets was set at $61,518, including the value of the residence which was to be sold; the savings and securities of the couple; the cash value of policies on appellee’s life, which are to be kept in force, and a boat. By agreement, all marital assets were to be sold or divided equally between appellant and appellee.

The court considered all of the factors given above in setting alimony at $100 a week and support of the minor boys at $38 for the older and $32 for the younger boy, also providing all 3 children with a 4-year college education. The judgment was entered on June 16, 1966. On July 18, 1966, appellant petitioned the court for a modification of the judgment to increase the alimony or reopen proofs on the basis that in the one month interim, appellant had suffered from a severe mental condition rendering her unable to be employed, and that she had no skills at all which would enable her to be employed. This motion was denied and appellant’s counsel filed claim of appeal to this Court, stating the following issues, restated from the briefs of both parties and the record on appeal:

(1) Was the trial court within its discretion in refusing to reopen the proofs or modify the alimony award at the July 18th hearing based on the testimony regarding appellant’s mental condition?

(2) Should the trial court have permitted appellee’s testimony regarding his own prognosis of Paget’s disease, and Ms estimate of its effect on Ms future income?

(3) Prom the evidence offered at the trial, was the award of alimony in the amount of $100 per week to appellant insufficient to provide for her needs ?

This Court, for clarification on appeal, will adhere to the rule stated in the case of Kwiatkowski v. Kwiatkowski (1949), 326 Mich 346, 350:

“On review [in a divorce case], we will not interfere with the trial court’s disposition of the property interest unless convinced that we would have reached a different conclusion had we occupied the situation of the trial court in the proceedings.”

See, also, Johnson v. Johnson (1956), 346 Mich 418; Sickrey v. Sickrey (1950), 329 Mich 51. The judgment in the present case was made subject to future modification in the discretion of the trial court, and it was proper for appellant to bring her modification of judgment motion one month after the final judgment of the trial court. We will also agree with appellant that any change in her health could be a valid basis for an increase in alimony payments. Lamb v. Lamb (1957), 348 Mich 557.

We are thus concerned with the propriety of the trial court’s decision to refuse both requests of appellant in her petition to modify judgment of divorce or to reopen proofs offered on July 13, 1966. Both parties on appeal acknowledge that the reopening of the proofs in the original case lies within the sound discretion of the' trial court. Rogers v. Rogers (1952), 335 Mich 207. We find in examining the record that this discretion was not abused by the trial court as the case was tried fully and completely only five weeks before, with appellant being given every opportunity to introduce her proofs, However, the trial court was also faced with an alternative in that appellant’s petition also requested a modification of the judgment of divorce. The trial court denied that portion of the petition by stating, “I will deny the motion. I think this is entirely out of timing” referring to the fact that the original trial was 5 weeks before. In so denying the petition, the trial court did not permit any introduction of evidence offered by appellant concerning the testimony of the psychiatrist regarding her worsening mental condition. The relevant statute is CL 1948, § 552.28 (Stat Ami 1957 Rev § 25.106), said statute reading:

“See. 28. After a decree for alimony or other allowance, for the wife and children, or either of them, and also after a decree for the appointment of trustees, to receive and hold any property for the use of the wife or children as before provided the court may, from time to time, on the petition of either of the parties, revise and alter such decree, respecting the amount of such alimony or allowance and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any decree respecting any of the said matters which such court might have made in the original suit.” (Emphasis supplied.)

This statute has also been interpreted to require that the trial court at least hear the motion for the modification of the divorce' judgment. See Fischer v. Fischer (1948), 320 Mich 176. It certainly is within the discretion of the trial court to then deny the motion on the lack of competent evidence to support it.

The fact that only 5 weeks had expired from the date of the original trial is thus of no relevance to a consideration of her motion to modify that judgment. We find that the trial court erred in not permitting appellant to introduce the testimony of the psychiatrist as evidence concerning her present mental condition. However, we will not consider her allegations on this matter in establishing the proper alimony to be awarded appellant as this evidence has not been proven in a court of law. It must be remembered that appellant is certainly not barred from bringing her motion again in the future.

Now we return to the trial itself and appellant’s allegation that the court erred in allowing appellee to discuss the possibility of a decrease in his future earnings because of the Paget’s disease in his hip. Appellant argues that speculation as to what will happen in 15 years to appellee is immaterial, because the court could modify the judgment at that time, given substantial change in circumstances. We refer appellee and the trial court to CL 1948, § 552.23, as amended by PA 1964, No 11, and CL 1948, § 552.28 (Stat Ann 1965 Cum Supp § 25.103 and Stat Ann 1957 Rev § 25.106), and to the case of McKay v. McKay (1937), 280 Mich 595, wherein the Court would not alter a divorce decree where it was subject to revision on petition of either party where the amount of the husband’s future earnings was uncertain.

The intent of the legislature and the courts clearly is to allow for future modification of divorce decrees when in fact the husband’s income has been diminished. The few Michigan cases which considered the future health and income of the husband in determining alimony turned on the fact that the husband was already ill or without income. Krus v. Krus (1953), 336 Mich 597; Gaw v. Gaw (1950), 327 Mich 120. Here appellant has earned more money in the year of the divorce than ever before, and there is no evidence to show any danger of severe reduction of his income in the near future. The court could properly hear the testimony, as it could not know without doing so what the present and immediate prospects for health of the husband would be. We will not decide for the trial judge when he should have ceased the questioning, except to state that the statutes providing for adjustment of the decree in the future are intended to handle this case if the income of the husband does, in fact, become severely reduced in 10 or 15 years.

After examining the record of the trial, we will further dispose of this issue by citing to the parties the case of Cristia v. Cristia (1947), 317 Mich 66. Reception of immaterial evidence in a divorce action is not a ground for reversal since it is to be assumed, in absence of convincing evidence to the contrary, that the court disregarded all immaterial evidence.

Appellant requests that this Court re-examine the record and find that an increase in alimony of $100 a week, to a total of $200 a week, is desirable when we consider the plight of appellant and the financial ability of appellee. Reference has been made above to the fact that appellee’s gross annual income has averaged $63,000 for the past 4 years, and his net disposable income averaged $26,000. In addition, his income had increased by $10,000 in the year preceding the divorce to $71,938,' and his disposable income to $31,185.

By the terms of the judgment of the Oakland county circuit court, the permanent alimony to be paid to appellant is $5,200 per year. In addition, evidence adduced at the trial points up the likelihood that the older of the sons may not be attending college, thus relieving appellee of the obligation' to pay for his support and education after 1967, although the younger boy may begin college in 1968 or 1969. The oldest child, the daughter, should have finished college in 1967, and, appellee was to be relieved of that burden of $4,000 a year.

.On appeal to this Court from a judgment awarding alimony to the wife in a divorce suit, the Court may determine that the amount awarded is inadequate considering all the circumstances involved, and may increase the amount to the wife in accordance with its findings. Ackerman v. Ackerman (1966), 5 Mich App 338; Johnson v. Johnson, supra, and Schlaf v. Schlaf (1927), 237 Mich 543.

From the record in the motion for modification of judgment, it is stated by counsel for appellant that, in fact, appellant is not a college graduate, she is unskilled in any trade or profession, and she has not worked in 20 years. Her uncontroverted testimony was that she found it difficult to live and was forced to borrow on the temporary alimony award which is the same figure as the permanent alimony award. The concept of alimony being a punitive measure is outmoded and it is apparent, in setting alimony, that all divorced wives are not entitled to be treated as incapacitated from working merely because they have not worked for many years. See Tackabury v. Tackabury (1952), 334 Mich 157. We believe that the ability of a wife to do some productive work in keeping with the standard of living to which she is accustomed is a valid factor to be considered by the trial court in determining alimony. Thus, we are not conditioning or basing our present determination of proper alimony on the requirement that this particular woman must develop skills and go to work to maintain her relatively high standard of living as we ■ are not familiar enough with her physical and mental state to insist that this is necessary.

However, we do find the award of the trial court to be inadequate in the light of the evidence produced. It must be remémbered that:

“Alimony * * * is an incident of marriage, and based on the underlying principle that it is the duty of the husband to support his wife, not necessarily to endow her. Primarily it signifies, not a certain portion of his estate, hut an allowance or allotment adjudged against him for her subsistence, according to his means and their condition in life.” (Emphasis supplied.) Bialy v. Bialy (1911), 167 Mich 559, 565, 566, quoted with approval in Ackerman v. Ackerman, supra, and Johnson v. Johnson, supra.

We increase the sum of alimony to be paid to appellant to $175 per week. This is an increase of $3,900 per year and provides appellant with an annual alimony of $9,100. In addition, she also has approximately $30,000 as her share of . the divided marital assets, which should provide her with a minimum of an additional $1,000 in interest, if the amount were prudently placed in a typical savings account. Thus, the total yearly income of appellant before taxes approximates $10,000. The conduct of the husband is a proper subject of inquiry in reaching an equitable amount of alimony to be allowed, and the wife should not be deprived of her marital right of support to which she would be entitled but for the husband’s misconduct which resulted in this divorce. Ackerman v. Ackerman, supra; Johnson v. Johnson, supra. We have carefully considered all of the circumstances involving both parties to this divorce (See 27A CJS, Divorce, § 233 [1]) and we do not believe that this increase will unduly burden appellee who at the time of the judgment had a disposable income, after all business and personal taxes were deducted, of $31,185 per year.

Appellant’s needs, considering her condition in life and as stated by her at the trial, are greater than $5,200 a year, and appellee has actually never controverted this particular testimony. We agree with appellant and increase the alimony to $175 a week accordingly.

Remanded to the circuit court for the county of Oakland for proceedings in accord with this opinion. Costs to appellant.

' McGregor and Levin, JJ., concurred.


text:
      In re GREENING ESTATE. GRIFFIN v. GRASSLEY.
    1. Courts — Nunc Pro Tunc Entries — Propriety.
    A nunc pro tuno order of a court, signed September 19, to have effect as of August 11, properly supplied an omission in the record of the eourt of an action on August 11 in which tho eourt awarded damages for a vexatious appeal (CLS 1961, § 60.0.2445).
    2. Same — Nunc Pro Tunc Order — Propriety.
    A nunc pro tuno order of the eourt is appropriate to supply an omission in' the record of action previously taken by the court, when the action was actually previously taken, but its record was omitted through inadvertence or mistake.
    3. Costs — Damages—Vexatious Appeal.
    Damages for dilatory or vexatious appeal are separate and different from ordinary costs on appeal (CLS 1961, § 600-.2445).
    4. Same — Damages—Vexatious Appeal.
    Damages for dilatory or vexatious appeal, authorized by statute, are not costs which are to be taxed by the elerk within the meaning of the eourt rules (CLS 1961, § 600.2445; GCR 1963, 526.10[2]).
    References for Points in Headnotes
    [1, 2] 20 Am Jur 2d, Courts §58.
    [3, 5] 5 Ám Jur 2d, Appeal and Error § 1024.
    [4] 5 Am Jur 2d, Appeal and Error § 1024; 20 Am Jur 2d, Costs, §§ 89, 94.
    [6] 5 Am Jur 2d, Appeal and Error §§ 1009, 1019, 1023, 1024.

      5. Appeal an» Error — Vexatious Appeal — Punitive Damages.
    An appeal to the Court of Appeals is vexatious within the meaning of the court rulos, and punitive damages will be assessed as provided in the rules, when the result on the appealed question is so apparent to the eourt that it is satisfied that it must have been equally apparent to appellants’ counsel (CLS 1961, § 600.2445; GCB 1963, 816.5[2]).
    6. Costs — Vexatious Appeals.
    Costs in all courts are awarded appellee, where appeals from probate eourt to circuit court and from latter court to the Court of Appeals are both declared vexatious, and punitive damages are ordered assessed (CLS 1961, § 600.2445; GCB 1963, 526.10[2], 816.5[2]).
    Appeal from Monroe; Breakey (James R., Jr.), J., presiding.
    Submitted Division 2 June 7, 1967, at Lansing.
    (Docket No. 2,766.)
    Decided December 5, 1967.
    Thomas E. Griffin, executor of the estate of Marian D. Greening, deceased, petitioned for allowance of his final account in the probate court of Monroe County. Account allowed, and Nancy Greening Grassley, Charles B. Greening, and Francis "W. Mc-Cauley, guardian ad litem of Gretchen Greening and Judith Greening, minors, appealed to the circuit eourt of Monroe County. Order of probate eourt affirmed, and executor petitioned in circuit court for damages for delay and vexation caused by appeal. Damages allowed, and nunc pro tunc order allowing damages entered more than 20 days after award of damages made. Defendants appeal from entry of this nunc pro tunc order. Affirmed, and appeal to Court of Appeals found vexatious. By subsequent order of the Court of Appeals, costs, punitive costs, and attorney fees were assessed in the amount of $2,112.49.

      Thomas E. Griffin, and William P. Cooney, for plaintiff.

      Francis W. McCauley, for defendants.
   Quinn, J.

Appellants here appealed to Monroe county circuit court from orders of Monroe county probate court, which disallowed their objections to the account of the executor of the above estate, appointed a trustee, assigned residue and allowed the first and final account of the executor. At the conclusion of proofs and argument on appeal, the trial judge affirmed the probate court. This occurred July 20, 1966. July 26, 1966, appellee noticed for settlement August 3,1966, an order implementing the oral opinion of July 20, 1966. August 2, 1966, appellee renoticed such order for settlement August 11, 1966, and noticed for hearing the same date a petition for damages for delay and vexation caused by the appeal pursuant to PA 1961, No 236, § 2445(3) (CLS 1961, § 600.2445[3] [Stat Ann 1962 Rev § 27A.2445 (3)]) together with statutory and court rule costs. On August 11, 1966, after a hearing, the trial court allowed appellee damages of $3,331.14, but the order signed that day did not include such damages; it only affirmed the probate court. To correct this omission, on September 1, 1966, appellee noticed for settlement September 19, 1966 a nunc pro tunc order which corrected the omission and ordered payment of the damages awarded August 11, 1966. The trial court executed the nunc pro tunc order and appellants again appeal.

Appellants raise no question as to the authority for or propriety of the damage award nor do they question the amount thereof. The only basis for the appeal advanced by them is that appellee waived his right to damages because of his failure to tax them as costs within 20 days of the award. This unique argument is founded on the assertion that the damage award is taxable as costs under DOR 1963, 526.13(1), and that GCR 1963, 526.10(2) provides that unless a bill of costs is presented to the clerk within 20 days after judgment is signed, the right to costs is waived. Thus, it is argued that appellee had 20 days from August 11, 1966, to tax his costs; uot having done so, the right is lost and cannot he restored by noticing a nunc pro iunc order on September 1,1966.

The nunc pro .tunc order signed September 19, 1966, properly supplied an omission to the record of the court of the action by the court August 11, 1966, in awarding damages. The propriety of a nunc pro tunc order under such circumstances is recognized in Magoun v. Walker (1938), 286 Mich 686, at 690, and cases cited therein. That order provided for a judgment of $3,331.14 against appellants and it is in no sense “costs” which “are to be taxed by the clerk” within the meaning of GCE 1963, 526.10(2) relied on by appellants. We reach this conclusion on the basis of the plain language of the statute which treats damages for dilatory or vexatious appeal as being separate and different from ordinary costs on appeal.

This result is so apparent to this Court that we are satisfied it must have been equally apparent to appellants’ counsel, and we find this appeal vexatious. On receipt of necessary information as indicated in GCE 1963, 816.5(2), we shall assess punitive damages as provided in said rule.

Affirmed, with costs in all courts to appellee.

Lesinski, C. J., and Baum, J., concurred.

       “The appellee may be awarded damages for the delay and vexation caused by the appeal, to be assessed in the discretion of the court, in addition to costs on appeal, if the appellant does not improve his position on appeal.” PA 1961, No 236, § 2445 (CLS 1961, § 600.2445 [Stat Ann 1962 Rev § 27A.2445(3)]).

       See 373 Mich lxiv.


text:
    DeNOYER v. CITY OF ANN ARBOR.
    l; Negligence — Children—Standard oe Care.
    The due eare of a child for its own safety must be measured by the eare the ordinary child of similar age, experience, judgment, and physical and mental development may be reasonably expected to observe under similar circumstances.
    2. Same — Finding as a Matter oe Law.
    A finding of negligence as a matter of law is proper only when it can be said that all reasonable men would agree that the action involved was negligent under the circumstances then existing.
    3. Same — Children—Finding oe Negligence as Matter oe Law.
    Action of plaintiff 11-year-old child in placing her hand in such a position, as she entered a warming shed walking on ice skates, that the heavy steel door of the shed, closing with excessive speed because of an improperly installed and '■ adjusted door closer, eaught her little finger between the door and the hinge side of the door frame, severing it, held, not negligence of the child as a matter of law.
    References eor Points in Headnotes
    [1] 38 Am Jur, Negligence §§ 25, 204.
    [2] 38 Am Jur, Negligence § 344.
    [3] 38 Am Jur, Negligence §§ 204, 344.
    Appeal from Washtenaw; Breakey (James It., Jr.), J.
    Submitted Division 2 June 7, 1967, at Lansing.
    (Docket Nos. 2,747, 2,748.)
    Decided December 5, 1967.
    Actions by Barbara J. DeNoyer, a minor, by Doris H. DeNoyer, ber guardian, and John M. DeNoyer against tbe City of Ann Arbor, Minion Construction Company, Inc., a Michigan corporation, and Colvin, Robinson, Wright & Associates, a partnership, for personal injuries sustained by minor plaintiff. Cases consolidated for trial. Judgment of no cause of action. Plaintiffs appeal.
    Reversed and remanded.

      Shirley J. Burgoyne, for plaintiffs.

      Jacob Fahrner, for defendant City of Ann Arbor.

      Ralph G. Keyes, for defendants Minion Construction Co., Inc., and Colvin, Robinson, Wright & Associates.
   Quinn, J.

These actions were brought to recover damages for personal injuries sustained by the minor plaintiff while in a warming shed at an ice skating rink, both operated and maintained by defendant city, and for the incidental expenses arising therefrom and incurred by her father. Defendant Minion constructed the shed under the supervision of, and pursuant to specifications drawn by the other defendant. The cases were consolidated below and are considered together here.

All defendants moved for summary judgment (GCR 1963, 117), and after extensive argument thereon, the trial court found the sole and proximate cause of the injury to the minor plaintiff was her negligent act which barred recovery. Pursuant to such finding, an order entered granting such motions on the basis plaintiffs’ complaints failed to state a cause of action (GCR 1963,117.2[1]) because of the negligence of the injured minor plaintiff. Plaintiffs appeal.

The sole issue presented is whether the trial judge found properly as a matter of law that the minor plaintiff was guilty of negligence which barred recovery.

In the posture of these cases before this Court, the only facts necessary-to consider and recite are those which establish the conduct of the minor plaintiff and the circumstances existing at the time of the injury. They are as follows: at the time of the injury, the minor plaintiff was 11 years of age. She entered the warming shed walking on ice skates and proceeded toward a seat. In so doing, she placed her left hand in such a position that it was caught between the door she had entered and the door frame on the hinge side. When the door closed it severed a portion of her little finger. Visibility in the shed was not obscured nor was the minor plaintiff shoved or pushed into the position which made the injury possible. Plaintiffs alleged, and for purpose of this decision we accept as true (Robbins v. Evening News Association [1964], 373 Mich 589), that the door involved was a heavy steel door which closed with excessive speed because of an improperly installed and improperly adjusted closing device.

In making its finding of negligence on the part of the minor plaintiff, the trial court referred to the following statement in Camp v. Spring (1928), 241 Mich 700, as relevant: “We are mindful, however, that the peril to fingers in a door jamb is not only obvious, but one of the first lessons taught by experience of childhood.” This statement is the last statement in an opinion holding that plaintiff had failed to establish defendant’s negligence in a door closing case. In Gamp, an adult plaintiff had entered a car in a funeral procession and when defendant funeral director closed the door, plaintiff’s fingers were caught in the door jamb. The statement referred to is dictum, and if it were not, it could not control here because of essential factual differences in the cases at bar.

We believe 2 well established rules are dispositive of the question before us:

The due care of a child for its own safety must be measured by the care the ordinary child of similar age, experience, judgment, and physical and mental development may be reasonably expected to observe under similar circumstances. Denman v. Youngblood (1953), 337 Mich 383.

A finding of negligence as a matter of law is proper only when it can be said that all reasonable men would agree that the action involved was negligent under the circumstances then existing. If there is a doubt as to such agreement, the question is for the jury. McCullough v. Ward Trucking Company (1962), 368 Mich 108.

We entertain such a doubt and hold that the trial court should have done so.

Reversed and remanded, with costs to plaintiffs.

Lesinski, C. J., and Baum, J., concurred.


text:
    PEOPLE v. DuBOIS.
    1. Criminal Law — Authorization of Warrant — Preparation of Complaint — Prosecuting Attorney.
    The preparation of a complaint by a prosecuting attorney and the filing of it by him with a magistrate fulfills all the purposes of the statute requiring an “order in writing” to be filed with the magistrate by the prosecuting attorney before the magistrate may issue warrants in criminal eases not cognizable by him, even though not signed by the prosecuting attorney (CL 1948, § 764.1).
    2. Same — Murder—Authorization of Warrant — Preparation of Complaint — Prosecuting Attorney.
    Absence of a written order by the prosecutor authorizing issuance of a warrant charging murder held, not reversible error in case where the prosecutor prepared the complaint and warrant, and the warrant was signed by the justice of the peace in the prosecutor’s presence (CL 1948, §§ 750.317, 764.1).
    3. Same — Sanity Commission — Constitutional Law — Eight of Confrontation of Witnesses.
    Cross-examination of a medical doctor, one member of a 3-man sanity commission, by asking him whether another member of the sanity commission disagreed with his expressed opinion that the defendant, charged with murder, was insane at the time of shooting held, not error in ease where objection was made by counsel for defendant, before the question on cross-examination was answered, the objection withdrawn, and defendant’s attorney on redirect examination questioned the witness about the other doctor’s opposing theory of defendant’s sanity.
    Eeferences for Points in Headnotes [1, 2] 5 Am Jur 2d, Arrest §§ 7, 8, 10, 12, 13, 15.
    [3] 53 Am Jur, Trial §§ 143, 144.
    [4] 53 Am Jur, Trial §§ 1122, 1123, 1125.
    [5] 21 Am Jur 2d, Criminal Law §§ 45, 48, 52, 53.
    [6] 21 Am Jur 2d, Criminal Law §§ 50, 52, 53.

      4. Same — Sanity Report — Reading by Trial Judge — Trial Without Jury.
    Reading by trial judge of entire sanity commission report, in nonjury trial for murder, held, not error, where reading of the entire report was necessary for the trial judge to determine the threshold question of defendant’s mental ability to stand trial, and the report had been admitted into evidence by stipulation of the parties without any limitations being plaeed on its use (CL 1948, § 750.317).
    5. Same — Sanity—Opinion Evidence — Psychiatrist.
    Opinion of defendant’s psychiatrist witness in trial for murder, that defendant was insane when he committed the murder, did not have to be accepted by trial judge when it was inconsistent with other facts and proofs.
    6. Same — Sanity—Rinding—Evidence.
    Evidence presented in nonjury prosecution for murder of defendant’s father-in-law held, sufficient to sustain trial judge’s finding the defendant legally sane (CL 1948, § 750.317).
    Appeal from Schoolcraft; Baldwin (George S.), J.
    Submitted Division 3 June 7, 1967, at Grand Rapids.
    (Docket No. 2,415.)
    Decided December 5, 1967.
    Leave to appeal denied April 24, 1968.
    See 380 Mich 767.
    Gerald R. DuBois was convicted of second-degree murder. Defendant takes delayed appeal on leave granted.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and George E. Mason, Assistant Attorney General, for the people.

      Francis B. Criqui, for defendant.
   Burns, J.

A trial court, sitting without a jury, found the defendant guilty of second-degree murder for shooting and killing his father-in-law, one Russell McManus, with a .22 calibre automatic pistol. The prosecutor did not authorize the justice of the peace by any written order to issue the warrant, but he personally had prepared the complaint and warrant, which was signed by the justice of the peace in the .prosecutor’s presence. A 3-doetor- sanity commission, which was impanelled at defendant’s request, determined that defendant was sane and able to assist in his defense.

Defendant raises several issues:

1. May a justice of the peace issue a warrant in a felony case without written order from the prosecutor allowing such issuance?
'2. Was defendant’s constitutional right of confrontation violated when the court permitted the prosecutor to question, on cross-examination, one member of the sanity commission who appeared as a defense witness concerning opinions of other members of the commission regarding defendant’s mental responsibility ?
3. Was it prejudicial error for the court, acting as the trier of the facts as well as the law, to read the complete report of the sanity commission rather than just the finding of said commission as to the ability of defendant to stand trial?

With regard to the first issue, CL 1948, § 764.1 (Stat Ann 1954 Eev § 28.860) provides that it shall not be lawful for justices of the peace to issue warrants in certain criminal cases until an order in writing allowing the same is filed and signed by the prosecuting attorney. The Supreme Court has recently interpreted this statute in People v. Carter (1967) 379 Mich 24, which this Court has followed in People v. Pelky (1967), 8 Mich App 85. On page 30 of the Garter Case, the Court said:

“The preparation of a. complaint by a prosecuting attorney and the filing of the same by him with the magistrate fulfills all of the purposes of the statute.’’.

The absence of a written order in the case at bar does not constitute reversible error since the prosecutor took the same precautions as are set forth in the Garter Case', supra.

The second issue was never properly before the trial court. On direct examination Dr. Lass, a member of the 3-man sanity commission, testified that he believed the defendant was insane at the time of the shooting. On cross-examination by the prosecuting attorney, Dr. Lass was asked if Dr. Purmort, another member of the sanity commission, disagreed with Dr. Lass on his diagnosis. Defendant’s attorney withdrew his objection saying,

“If Mr. Sheahan [the prosecuting attorney] wishes to ask the doctor about Dr. Purmort and Dr. Thompson and bring out from him what' those doctors feel I havé nó objection to that.”

In fact, defendant’s attorney on redirect examination questioned Dr. Lass about Dr. Purmort’s opposing theory of defendant’s sanity. In any event,.it is difficult to find any prejudice on this record since the sanity report itself was admitted into evidence upon stipulation in open court.

It was not error for the court to read the entire sanity report when such, a reading was necessary to determine the threshold question of defendant’s mental ability to stand trial. Both parties agreed to admit thé' sanity report into evidence, and neither party placed any limits on this stipulation. The trial judge found as a matter of fact that the defendant was sane at the time the crime was committed.

The trial judge was not bound to accept the' opinion of the defendant’s psychiatrist when inconsistent with other facts, and proofs. People v. Wingeart (1963), 371 Mich 264. Upon a review of the record there was sufficient evidence for the trial judge, sitting as the trier of the facts, to find the defendant legally sane.

The judgment of the trial court is affirmed.

Holbbook, P. J., and Wise, J., concurred.

       CL 1948, § 750.317 (Stat Ann 1954 Rev § 28.549).

       US Const, Am 6; Const 1963, art 1, § 20.