author: McGregor, j.

text:
    PEOPLE v WARD
    Docket No. 77-3405.
    Submitted June 23, 1978, at Detroit.
    Decided September 5, 1978.
    Bruce E. Ward was convicted of delivery of phencyclidine in Macomb Circuit Court, Howard R. Carroll, J. Defendant appeals, alleging that delay in bringing him to trial deprived him of his alibi defense, that allowing the indorsement of a prosecution witness on the day of trial deprived him of a fair trial, and that the trial court erred in its failure to give a requested instruction to the jury. Held:

    1. No presumption of prejudice arose from the delay between the commission of the crime and the trial where the initial three-month delay in issuing an arrest warrant was justified because the defendant’s whereabouts were unknown and because a five-month delay between arrest and trial in a controlled substances case does not give rise to a presumption of prejudice. Absent such a presumption, the defendant has failed to establish prejudice.
    2. Allowance of the late indorsement of a res gestae witness was not an abuse of discretion, and the defense’s failure to request a continuance or an interview with the witness negates the defendant’s claim of prejudice.
    3. Although the trial court’s inadvertent omission of a requested instruction regarding the defendant’s failure to testify in his own behalf was error, the error was rendered harmless when the court offered to give the instruction after the jury had begun its deliberations and defense counsel waived the giving of the instruction.
    Affirmed.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 241-243, 251-254.
    Accused’s right to speedy trial under Federal Constitution — Supreme Court cases. 21 L Ed 2d 905.
    Waiver or loss of accused’s right to speedy trial. 57 ALR2d 302.
    [2, 3] 21 Am Jur 2d, Criminal Law § 251.
    [4, 5] 41 Am Jur 2d, Indictments and Informations §§ 56, 60.
    [6] 75 Am Jur 2d, Trial §§ 578, 587, 600, 601.

      1. Criminal Law — Constitutional Law — Due Process — Speedy Trial — Factors Considered.
    Factors considered in determining whether a defendant has been denied due process of law where the defendant claims that he was deprived of a speedy trial are (1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) prejudice to the defendant.
    2. Criminal Law — Constitutional Law — Speedy Trial — Presumption of Prejudice.
    The question of whether a delay in bringing a defendant to trial is presumptively prejudicial is dependant upon the circumstances of each case; a delay of nine months between the commission of a crime and a defendant’s trial is not presumptively prejudicial where the initial three-month delay before issuance of an arrest warrant was justified by the fact that the defendant’s whereabouts were unknown to the police; a delay of approximately five months between arrest and trial is not presumptively prejudicial in a case involving the delivery of a controlled substance.
    3. Criminal Law — Constitutional Law — Speedy Trial — Prejudice.
    A defendant’s inability to establish prejudice to his defense because of a delay of eight to nine months between the commission of the crime and his trial is fatal to his claim of denial of the right to a speedy trial in the absence of facts establishing a presumption of prejudice.
    4. Witnesses — Criminal Law — Res Gestae Witnesses — Indorsement —Discretion.
    A motion to indorse a res gestae witness on the day of trial is addressed to the sound discretion of the trial court, which discretion should be exercised with due regard for the defendant’s right to a fair trial; ordinarily, late indorsement should be permitted and a continuance granted to avoid potential prejudice.
    5. Witnesses — Criminal Law^ — Res Gestae Witnesses — Indorsement.
    Indorsement of a res gestae witness on the day of trial was not an abuse of a trial court’s discretion where no prejudice to defendant has been shown and where defense counsel failed to request either a continuance or an interview with the witness.
    6. Criminal Law — Instructions to Jury — Defendant’s Failure to Testify — Harmless Error — Waiver.
    A trial court’s inadvertent omission of a jury instruction regarding a defendant’s failure to testify in his own behalf, after the court had agreed to honor defense counsel’s request for such an instruction, was harmless error where defense counsel initially expressed satisfaction with the instructions as given but subsequently informed the court of its omission and, when the court offered to give the instruction after the jury had begun deliberations, defense counsel waived the giving of the instruction.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Antonio Cavaliere, Assistant Prosecuting Attorney, for the people.

      John L. Belanger, for defendant on appeal.
    Before: R. M. Maher, P. J., and J. H. Gillis and McGregor, JJ.

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

   McGregor, j.

The defendant was convicted at a jury trial of delivery of phencyclidine, a controlled substance, in violation of the Controlled Substances Act. MCL 335.341(l)(b); MSA 18.1070(41)(l)(b). The delivery which formed the basis of the instant prosecution was alleged to have occurred in the City of Warren on October 7, 1976.

At the preliminary examination, Officer Gary Stanek testified that he had purchased the controlled substance from defendant while acting as an undercover agent in an ongoing investigation. He further testified that he attempted to make further contact with the defendant after the transaction but received information that he had left the state. For this reason, the investigation was continued and an arrest warrant was not sought until late December, 1976.

Defendant was subsequently found and served with the warrant at the State Prison of Southern Michigan on January 19, 1977. He had been returned to prison for a probation violation some time after his initial contact with Officer Stanek.

The defendant was bound over for trial after a preliminary examination on February 22, 1977. The case was scheduled on the trial docket for April 13, 1977, but did not reach trial until June 21, 1977. The record indicates that the adjournments and delays were occasioned by the prosecution’s inability to produce various witnesses.

The central issue at trial was identification of the defendant. The prosecution theorized that the defendant sold 1,000 tablets of phencyclidine to an undercover narcotics officer on the evening in question. The defendant’s theory of the case was that the police officer involved in the purchase had mistaken the defendant for another person.

Officer Stanek testified at trial that he had received information on the evening in question that the drug phencyclidine was available at 3807 Oak Street in the City of Warren. Pursuant to that information, Stanek went to that address where he was admitted to a mobile home by a woman named Debbie. Two white males were introduced to him as Bruce and Tiny. The man named Bruce asked $375 for 1,000 tablets of the drug phencyclidine. Stanek identified the defendant as having wavy, collar-length hair and a full black beard and mustache.

Stanek’s partner, Officer Walter Bogus, was on surveillance stake-out outside the home at the time of the buy and testified that Stanek entered the trailer at about 6 p.m. and left shortly after 6:30 p.m. followed by the defendant and another man.

The defendant’s theory was that of alibi. Pursuant to proper notice, he called his wife, mother-in-law and mother to the stand. Defendant’s wife testified that on the night of October 7, 1976, between 5:30 and 6 p.m., she, defendant and defendant’s mother ate dinner in a Red Lobster Restaurant located on Eight Mile Road near the City of Warren. Marie Ward, defendant’s mother, testified that she drove the defendant and his wife to the Red Lobster Restaurant for dinner on the night in question. Shirley Thomas, defendant’s mother-in-law, testified that she had cut defendant’s hair and that he was clean shaven on October 1, 1976. The defendant did not take the stand.

Defendant’s first claim on appeal is that the four-month delays which occurred between the date of the crime and his preliminary examination and between that examination and his trial served to deprive him of his alibi defense. The delay in scheduling a preliminary examination was duly raised by defendant in a motion to quash and argued unsuccessfully before trial.

In considering speedy trial claims, the courts balance several factors on a case-by-case basis. People v Chism, 390 Mich 104, 111; 211 NW2d 193 (1973). The due process factors identified by the Michigan Supreme Court in deciding a defendant’s speedy trial claims are (1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant. This general rule was established by the United States Supreme Court in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972), and is recognized by the Supreme Court of this state as the definitive test. See People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972), People v Collins, 388 Mich 680; 202 NW2d 769 (1972).

Delay is therefore not the sole test for violation of a speedy trial right. While the length of the delay is to some extent a "triggering mechanism” giving rise to the claim of violation of the right to speedy trial, there is no necessity for inquiring into the other factors unless a presumptively prejudicial delay has occurred. Barker, supra, at 530. Time delays which would provoke inquiry are necessarily dependent on the particular circumstances of the case. Collins, supra, at 689.

We do not find the nine-month delay between the commission of the charged offense and trial presumptively prejudicial on the facts of this case. First, the initial three-month delay between the occurrence of the crime and the issuance of an arrest warrant was justified by the fact that defendant’s whereabouts were unknown to the police and a continuing investigation was required. Next, we conclude that a delay of approximately five months between arrest and trial is not presumptively prejudicial in a case involving the delivery of a controlled substance.

In any event, in balancing the four factors established in the cases cited above, we would find that the defendant was not denied his right to a speedy trial in this case. Although the delays which occurred were caused by the prosecutor and a period of eight to nine months elapsed between commission of the crime and defendant’s trial, the defendant has demonstrated no prejudice as a result of that delay and does not contend that he asserted his right to a speedy trial before trial. Defendant’s inability to establish prejudice to his defense of alibi as a result of the delay is fatal to this claim.

Defendant’s second contention is that the trial court committed reversible error in allowing the endorsement of Officer Bogus on the day of trial since this late endorsement deprived him of a fair trial and precluded investigation by defense counsel as to this officer’s involvment in the incident. No mention was made of this officer at the preliminary examination and his name did not appear on any of the police reports. Since the issue of identification was central to this case and pitted the credibility of Officer Stanek against that of defendant’s alibi witnesses, the testimony of Officer Bogus was critical to the prosecutor’s case. This issue therefore has demanded careful consideration by the Court.

A motion to endorse a res gestae witness on the day of trial is addressed to the sound discretion of the trial court and that discretion should be exercised with due regard for the defendant’s right to a fair trial. Late endorsement should ordinarily be permitted and a continuance granted to obviate potential prejudice which might result. People v Harrison, 44 Mich App 578; 205 NW2d 900 (1973).

Defense counsel’s failure to request a continuance or an interview with the witness, however, tends to negate the argument that tardy endorsement was prejudical to the defense. People v Yacks, 49 Mich App 444; 212 NW2d 249 (1973). Thus, while the importance of witness credibility renders this a close question, we conclude under all the circumstances of the case that the trial judge did not abuse his discretion in permitting tardy endorsement of this witness.

Defendant’s third claim of error on appeal is that the trial court committed reversible error in failing, despite defense counsel’s request, to instruct the jury that the defendant had a constitutional right not to testify in his own behalf and that his exercise of that right could not be used against him. Under the circumstances of this case, we find the trial judge’s omission to be harmless error.

Before closing arguments, defense counsel asked the trial judge to instruct the jury concerning the defendant’s failure to testify. The judge indicated that he would give the instruction but failed to do so. Defense counsel initially expressed satisfaction with the instructions but subsequently informed the court of its failure to give the requested charge. When the trial judge offered to give the instruction after the jury had begun its deliberations, defense counsel decided that this would do the defendant more harm than good and waived the giving of the instruction.

In People v Pruitt, 29 Mich App 230; 185 NW2d 57 (1970), this Court held that where a defendant requests the giving of an instruction that defendant has a right to elect not to testify in his own behalf, there is no discretion in the trial court and its refusal to give that instruction is error. "The choice as to whether such an instruction is to be given to the jury is the defendant’s and not the trial court’s.” 29 Mich App at 233. See also People v Moore, 39 Mich App 329; 197 NW2d 533 (1972).

Since the trial judge initially agreed to give the requested instruction below and also offered to do so after defense counsel noted its omission, the decision in Pruitt, supra, is distinguishable. The trial judge’s failure to give the charge was inadvertent and he sought to correct his mistake by offering to give the instruction when defense counsel renewed his request. By declining this offer, defendant must be held to have waived the giving of this instruction.

Finally, since the record does not indicate the length of time for which the jury had been out when the trial judge offered to give the additional instruction, we reject defendant’s contention that his acceptance of the trial court’s offer would have prejudiced him.

Affirmed.


source: Caselaw Access Project

author: J. H. Gillis, J.

license: Public Domain

text:
    TUMBARELLA v THE KROGER COMPANY
    Docket No. 77-4303.
    Submitted June 20, 1978, at Detroit.
    Decided September 5, 1978.
    Angeline Tumbarella was employed as a cashier by The Kroger Company for approximately seven years. On September 8, 1974, she was discharged from this position for allegedly stealing $5, although she vigorously denied taking any money and was never prosecuted for the alleged theft.
    Angeline Tumbarella then commenced an action against The Kroger Company and Kenneth Koberstein and Paul Bregge, severally and jointly, for damages for (1) false imprisonment, (2) slander, (3) libel, and (4) assault and battery. Summary judgment for defendants, Macomb Circuit Court, Howard R. Carroll, J. The plaintiff appeals claiming that the trial court erred in granting summary judgment on the false imprisonment, slander and libel counts. Held:

      References for Points in Headnotes
    [1] 73 Am Jur 2d, Summary Judgment §§ 2, 4.
    [2] 73 Am Jur 2d, Summary Judgment § 32.
    [3] 32 Am Jur 2d, False Imprisonment § 1.
    [4] 32 Am Jur 2d, False Imprisonment §§ 6, 97.
    Necessity and sufficiency of allegations in complaint for malicious prosecution or tort action analogous thereto that defendant or defendants acted without probable cause. 14 ALR2d 264.
    [5] 32 Am Jur 2d, False Imprisonment §§ 18, 74.
    50 Am Jur 2d, Libel and Slander § 269.
    Construction and effect, in false imprisonment action, of statute providing for detention of suspected shoplifters. 47 ALR3d 998.
    Defamation: actionability of accusation or imputation of shoplifting. 29 ALR3d 961.
    [6] 32 Am Jur 2d, False Imprisonment §§ 7, 74, 103-105, 114, 116.
    50 Am Jur 2d,.Libel and Slander §§ 352 et seq., 358.
    [7] 73 Am Jur 2d, Summary Judgment §§ 16-30.
    [8] 73 Am Jur 2d, Summary Judgment §§ 4, 5, 26, 27, 36.
    [9] 6 Am Jur 2d, Assault and Battery §§ 86, 169.
    32 Am Jur 2d, False Imprisonment §§ 15, 16, 22, 74, 119.
    [10] 50 Am Jur 2d, Libel and Slander § 1.
    [11] 50 Am Jur 2d, Libel and Slander §§ 27-59.
    [12] 50 Am Jur 2d, Libel and Slander §§ 195-198.
    [13] 50 Am Jur 2d, Libel and Slander §§ 196-198, 200.
    [14] 50 Am Jur 2d, Libel and Slander §§ 195, 198, 199.
    [15] 50 Am Jur 2d, Libel and Slander §§ 114-116, 270, 271, 273-275, 322, 323.
    [16] 50 Am Jur 2d, Libel and Slander §§ 169-173.
    Liability of publisher of defamatory statement for its repetition or republication by others. 96 ALR2d 373.

      1. The trial court erred in granting summary judgment in respect to plaintiffs claim for false imprisonment because the plaintiff had stated a claim upon which relief could be granted and, as in almost all cases where questions of intent, credibility and state of mind are involved, there were disputes as to material facts.
    2. Summary judgment on the plaintiffs slander claim was inappropriate because there was a material fact issue whether the store’s security officers acted with malice or reckless disregard for the truth when they confronted plaintiff in the store and accused her of stealing.
    3. Summary judgment on the plaintiffs libel claim was inappropriate because there is a genuine issue of material fact presented with respect to Kroger’s liability for republication of an alleged defamatory letter which was sent to other Kroger stores.
    Reversed and remanded for trial as to the false imprisonment, libel and slander counts.
    1. Judgment — Summary Judgment — Court Rules — Sub-Rules.
    The propriety of a trial court’s grant of summary judgment should be scrutinized under two of the sub-rules of the court rule dealing with summary judgments where both the motion for summary judgment and the trial court’s opinion fail to indicate the specific sub-rule relied upon and either of two of the sub-rules could apply (GCR 1963,117.2(1), 117.2[3]).
    2. Judgment — Summary Judgment — Failure to State a Claim— Pleadings — Court Rules.
    A motion for summary judgment based on a plaintiffs failure to state a claim upon which relief can be granted is to be considered by an examination of the pleadings alone; a reviewing court is to accept as true the well-pleaded facts in the plaintiffs complaint and to determine whether these claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery (GCR 1963,117.2[1]).
    3. False Imprisonment — Restraint of Person’s Liberty — False Restraint.
    False imprisonment is the unlawful restraint of a person’s liberty or freedom of movement; the restraint must be false, i.e., without right or authority to do so.
    4. False Imprisonment — Malice—Absence op Probable Cause— Stating a Cause op Action.
    A plaintiff in an action for false imprisonment need not allege malice or the absence of probable cause on behalf of a defendant in order to recover.
    5. False Imprisonment — Defamation—Shopkeepers—Statutes.
    A shopkeeper does not enjoy an absolute privilege to detain or defame a person suspected of removing or attempting to remove from a store, without right or permission, goods held for sale therein (MCL 600.2917; MSA 27A.2917).
    6. False Imprisonment — Libel and Slander — Shopkeepers—Mental Anguish — Punitive Damages — Reasonable Cause.
    A plaintiff is precluded from recovering damages for mental anguish and punitive damages in actions against a shopkeeper for false imprisonment, libel, and slander based on the shopkeeper’s detention of the plaintiff where the merchant had reasonable cause to suspect the plaintiff of stealing.
    7. Judgment — Summary Judgment — Genuine Issues op Fact — Affidavits — Pleadings—Documentary Evidence-Reasonable Doubts — Factual Support.
    Affidavits, pleadings, depositions, admissions and other documentary evidence must be considered by a court when considering a motion for summary judgment for failure to state a genuine issue of material fact, and the benefit of every reasonable doubt must be given to the party opposing the motion; this motion tests whether factual support exists for the claim made (GCR 1963, 117.2[3]).
    8. Judgment — Summary Judgment — Genuine Issues op Fact— Court Rules.
    Summary judgment based on failure to state a genuine issue of material fact is hardly ever appropriate in cases involving questions of intent, credibility or state of mind (GCR 1963, 117.2[3]).
    9. False Imprisonment — Recovery op Chattels — Privilege to Use Force — Assault and Battery — Defenses.
    The privilege to use force to retake chattels is a defense to an action for assault and battery; however, it is not a defense to a false imprisonment claim.

      10. Libel and Slander — Harm to Individual’s Reputation — Communications.
    A communication is defamatory if it tends to harm an individual’s reputation so as to lower him in the estimation of the community or deter others from associating with him.
    11. Libel and Slander — Slander Per Se — Accusation of Commission of Crime.
    Accusation of commission of a crime is slander per se and is actionable even where a plaintiff suffers no special harm or loss of reputation.
    12. Libel and Slander — Qualified Privilege — Subject Matter Communicated.
    A qualified privilege to defame exists where the party communicating has an interest in the subject matter communicated or has a duty, in reference to the subject-matter communicated, to a person having a corresponding interest or duty.
    13. Libel and Slander — Privilege—Undisputed Circumstances— Question of Law.
    The question, in an action for defamation, of whether or not a privilege attaches under undisputed circumstances is a question of law for the judge.
    14. Libel and Slander — Qualified Privilege — Actual Malice— Knowledge of Falsity — Reckless Disregard for the Truth.
    A plaintiff in a defamation action where the defendant has a qualified privilege must prove actual malice in order to recover; i.e., the plaintiff must prove that the communication was made with knowledge of its falsity or with reckless disregard for the truth.
    15. Libel and Slander — Employer—Qualified Privilege — Subject Matter Communicated.
    An employer has a qualified privilege to defame an employee by publishing statements to other employees whose duties interest them in the subject matter of the defamatory material, such as those employees responsible for hiring and firing.
    16. Libel and Slander — Publication of Defamatory Statement— Repetition of Defamatory Statement.
    One who publishes a defamatory statement is liable for the injurious consequences of its repetition where the repetition is the natural and probable result of the original publication.

      Armand D. Bove (by Ralph H. Nelson, Jr.), for plaintiff.

      Hammond, Ziegelman, Sotiroff & Fishman (by Steven J. Fishman and Malcolm D. Brown), for defendants.
    Before: R. M. Maher, P. J., and J. H. Gillis and McGregor, JJ.

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

   J. H. Gillis, J.

Plaintiff was employed by defendant, Kroger Company, in the capacity of a cashier for approximately seven years. On September 8, 1974, plaintiff was discharged from her position for allegedly stealing $5.

Plaintiff vigorously denied taking any money, and commenced an action against defendant for (1) false imprisonment, (2) slander, (3) libel, and (4) assault and battery. The action was removed to Federal Court on petition of defendants, but later remanded to Macomb County Circuit Court on June 19, 1976, on stipulation by the parties that there was no diversity or Federal question jurisdiction. Summary judgment was granted to defendants on October 13, 1977.

Plaintiff now appeals as of right from the dismissal of her complaint.

The facts alleged by plaintiff leading to her discharge are as follows:

Plaintiff was operating her cash register in a normal fashion on September 8, 1974. Two very unusual transactions occurred near the end of her shift. First, a man ran through plaintiffs line, passing around the waiting customers, and tossed $2 on the counter. He was carrying a six-pack of beer, and he said, "This is for my beer”. Plaintiff was not sure of the price of the beer so she put the $2 on her register slab and continued to ring up her remaining customers. Then, within a few minutes, a woman ran through plaintiffs line, carrying what appeared to be a roast. She tossed $5.10 on the counter and left. Plaintiff called for the woman to wait for her receipt but she was gone.

Plaintiff then put the $5.10 on her register slab near the $2 and finished ringing out her customers. Plaintiff then asked another cashier what the price of the beer was, and the other cashier answered $1.79. Plaintiff said that she might as well ring up the $1.79 and put the whole $2 in the register, and then proceeded to do so. Plaintiff then stood at her register trying to figure out what to do with the $5.10. She had no idea what the price of the meat had been, and was afraid' it might have cost more than $5.10. Plaintiff decided to wait and ask the night manager what to do with the $5.10 at the end of her shift, when she "rang out” and turned in her key.

Plaintiff then closed her register and went into the store to do some personal shopping before ringing out for the evening. Plaintiff carried the $5 with her while doing her shopping. After completing her shopping, plaintiff proceeded to have another cashier ring up her items. While the cashier rang up the items, plaintiff went to her register, got her purse and extracted $4 to be used to pay for the items.

At this point in time, two men approached plaintiff, identifying themselves as security and police officers, and asked plaintiff where the money was. After plaintiff indicated that she did not know what they were talking about, the two men escorted her to the back storeroom, and questioned her about the transaction. They also emptied plaintiff’s purse and found the $5 bill. The two men then took plaintiff to the front office for a conference with the night manager. After approximately 10 minutes, plaintiff was informed that she was fired.

Plaintiff subsequently contacted her union representative and filed a grievance alleging that she was improperly discharged. After meeting with Kroger’s representatives, the union informed plaintiff that they did not intend to pursue her grievance any further.

Plaintiff then commenced the present action against defendants in Macomb County Circuit Court.

I

Plaintiff first contends that the trial court erred in granting defendants’ motion for summary judgment in respect to plaintiff’s false imprisonment claim.

The basis for defendants’ motion for summary judgment is not clear in that defendants failed to specify on the record what sub-rule they were grounding their motion upon. Apparently defendants’ motion is based upon GCR 1963, 117.2(1), failure to state a claim upon which relief can be granted, or GCR 1963, 117.2(3), no genuine issue of material fact.

The trial court’s opinion also failed to specify which sub-rule it was based upon. Under such circumstances, the propriety of summary judgment should be scrutinized under both sub-rules. See Bob v Holmes, 78 Mich App 205, 210; 259 NW2d 427 (1977).

The legal principles involved in reviewing a motion for summary judgment for failure to state a claim were set forth in Borman’s, Inc v Lake State Development Co, 60 Mich App 175, 179; 230 NW2d 363 (1975):

"A motion based solely on subsection 1, challenges the legal sufficiency of a plaintiffs claim and is to be considered by an examination of the pleadings alone. * * * Our job as a reviewing court is to accept as true the well-pleaded facts in plaintiffs complaint, against each defendant, * * * and to determine whether these claims are so 'clearly unenforceable as a matter of law that no factual development can possible [sic] justify a right to recovery.’ ” (Citations omitted.)

False imprisonment is the unlawful restraint of a person’s liberty or freedom of movement. Stowers v Wolodzko, 386 Mich 119; 191 NW2d 355 (1971). The restraint must be "false”, i.e., without right or authority to do so. Hess v Wolverine Lake, 32 Mich App 601, 604; 189 NW2d 42 (1971).

In Hill v Taylor, 50 Mich 549, 552; 15 NW 899 (1883), our Supreme Court stated the requirement of an arrest: This statement of the law was approved in Bonkowski v Arlan’s Department Store, 383 Mich 90, 96-97; 174 NW2d 765 (1970), where the Court stated that the first element of false imprisonment was an intention to take the person accosted into custody.

"There can be no such thing as an action for false imprisonment where the plaintiff has not been arrested; and while, as has been held, manual seizure is not necessary, there must be that or its equivalent in some sort of personal coercion.”

In the case at bar there can be little question that plaintiff alleged this first element of a false imprisonment claim. Plaintiff clearly alleged that the two men who confronted her in the store stated that they were police and security officers and made menacing gestures which gave plaintiff the impression that she was in custody. These actions, coupled with threats of prosecution and jail, expressly and impliedly restricted plaintiff’s freedom.

In an action for false imprisonment plaintiff need not allege malice or the absence of probable cause on behalf of the defendants in order to recover. Prosser, Torts (4th ed), § 12, p 49; 35 CJS, False Imprisonment, § 2, p 624. In Donovan v Guy, 347 Mich 457, 464; 80 NW2d 190 (1956), which concerned an action for false imprisonment, the Court quoted as follows from the early case of Barker v Anderson, 81 Mich 508, 511; 45 NW 1108 (1890):

" 'As a general proposition, it must be admitted that it is only necessary for the plaintiff, in an action of this kind, to show that he has been imprisoned or restrained of his liberty. The presumption then arises that he was unlawfully imprisoned, and it is for the person who has committed the trespass to show that it was legally justified.’ ”

Defendants contend that they had probable cause to believe that plaintiff had money that belonged to defendant, Kroger, in her possession. Therefore, they claim that they had an absolute privilege, as a matter of law, to detain plaintiff. We disagree.

MCL 600.2917; MSA 27A.2917 provides that when a shopkeeper suspects a person of "removing or of attempting to remove from a store without right or permission goods held for sale therein”, the shopkeeper does not enjoy the absolute privilege to detain or defame the person.

In actions for false imprisonment, libel, and slander, the person is merely precluded from recovering damages for mental anguish and punitive damages, where the merchant had reasonable cause to suspect the person of stealing. Bruce v Meijers Supermarkets, Inc, 34 Mich App 352, 357, fn 1; 191 NW2d 132 (1971), Bonkowski v Arlan’s Department Store, 383 Mich 90, 96-97; 174 NW2d 765 (1970).

It is the opinion of this Court that the aforementioned statute should govern the present case in that the instant situation is practically indistinguishable from that involved in shoplifting cases. Accordingly, plaintiff should be permitted to proceed to trial on her false imprisonment claim and seek nominal damages even if defendants had probable cause to believe that plaintiff had stolen moneys from defendant, Kroger Company.

We also note that the trial court could not properly grant defendants’ motion for summary judgment pursuant to GCR 1963, 117.2(3).

"Motions for summary judgment under GCR 1963, 117.2(3) are not proper unless no genuine issue as to any material fact remains. In passing on the motion, benefit of every reasonable doubt must be given to the party opposing the motion. Summary judgment under this provision is designed to test whether factual support exists for the claim made. Affidavits, pleadings, depositions, admissions, and other documentary evidence must be considered by the court. Courts are liberal in finding that a genuine issue does exist, in order not to infringe upon a party’s right to trial of disputed factual issues.” (Citations omitted.) Bob v Holmes, supra, at 211-212.

In cases involving questions of intent, credibility, or state of mind, summary judgment is hardly ever appropriate. Whalen v Bennett, 67 Mich App 720, 725; 242 NW2d 502 (1976), Brown v Pointer, 390 Mich 346, 354; 212 NW2d 201 (1973).

Issues of credibility, intent and state of mind are present in the instant case. The question of probable cause on the part of the security officers in detaining plaintiff creates a genuine issue of material fact upon which reasonable minds could differ.

Defendants further claim that they were privileged to recapture their money in accordance with 1 Restatement Torts 2d, § 100, p 173. This section, by its own terms, is inapplicable to the case at bar. Section 100 deals with the privilege to use force to retake chattels and it is a defense to an assault and battery action. However, it is not a defense to a false imprisonment claim.

Defendants also argue that plaintiffs action is preempted by Federal labor policy. We disagree.

The improper conduct cited in plaintiffs complaint is not protected by the National Labor Relations Act. Also, the state has a substantial interest in protecting its citizens from the harm allegedly inflicted.

Finally, there is little risk that the current action will interfere with the effective administration of national labor policy.

Therefore, plaintiffs circuit court action is not barred by Federal labor policy.

Accordingly, we find that the trial court erred in granting defendants’ motion for summary judgment in respect to plaintiffs false imprisonment claim.

II

Plaintiff next contends that the trial court improperly granted defendants’ motion for summary judgment in regards to her slander claim.

A communication is defamatory if it tends to harm an individual’s reputation so as to lower him in the estimation of the community or deter others from associating with him. Iacco v Bohannon, 70 Mich App 463; 245 NW2d 791 (1976). In the case at bar, the security guard’s statement, "Where’s the money”, and the sequence of events which followed fit into the category of "dramatic pantomime”, found to constitute publication in the Bonkowski case, supra. Accusation of commission of a crime is also slander per se, which is actionable even where the plaintiff suffered no special harm or loss of reputation.

There exists a qualified privilege to defame where "the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty”. Bacon v Michigan Central R Co, 66 Mich 166, 169-170; 33 NW 181 (1887), quoted in Merritt v Detroit Memorial Hospital, 81 Mich App 279, 285; 265 NW2d 124 (1978).

The question of whether or not a privilege attaches under undisputed circumstances is a question of law for the judge. Lawrence v Fox, 357 Mich 134, 139-140; 97 NW2d 719 (1959), Tocco v Piersante, 69 Mich App 616, 628; 245 NW2d 356 (1976). Where a qualified privilege exists, plaintiff must prove actual malice in order to recover, i.e., must prove that the communication was made with knowledge of its falsity or with reckless disregard for the truth. Peisner v Detroit Free Press, Inc, 82 Mich App 153; 266 NW2d 693 (1978), Brunn v Weiss, 32 Mich App 428, 431; 188 NW2d 904 (1971).

In the case at bar it is clear that the security officers had an interest in protecting the store from theft, and were the store’s agents in this regard. An employer has the qualified privilege to defame an employee by publishing statements to other employees whose duties interest them in the subject matter, such as those employees responsible for hiring and firing. See Merritt v Detroit Memorial Hospital, supra.

The next question that this Court must consider is whether or not the security officers acted with malice or reckless disregard for the truth. We must determine if the evidence produced before the lower court created a genuine issue of material fact in respect to this issue. The trial court, in granting defendants’ motion for summary judgment, concluded that no genuine issue of material fact existed. The circumstances surrounding plaintiff’s handling of the $5 at issue presented a factual question as to whether or not plaintiff did intend to steal the money.

If the security officers had plaintiff under surveillance during the entire transaction, then reasonable minds could differ as to whether or not a theft had occurred. Hence, the trial court could not properly conclude from the evidence presented that the security officers acted without malice or reckless disregard for the truth. Therefore, the trial court erroneously granted defendants’ motion for summary judgment in respect to plaintiffs slander claim.

Ill

Plaintiffs final allegation of error concerns the trial court’s granting of defendants’ motion for summary judgment dismissing plaintiff’s libel claim.

Plaintiff contends and defendants concede that a letter was circulated which stated that plaintiff had been discharged for stealing from defendant, Kroger Company. As noted earlier, it is actionable per se to accuse an individual of a crime involving theft.

Defendant, Kroger Company, contends that it was privileged to circulate the letter and inform other Kroger managers that plaintiff had been discharged for theft. We agree, since other Kroger managers had an interest in the subject matter, because they were responsible for hiring and firing employees, and Kroger might reasonably suspect that plaintiff would seek employment at another Kroger store in the area.

However, the privilege to inform other managers was only a qualified one, and Kroger could still be found liable if the communication was made with knowledge of its falsity or reckless disregard of the truth. See Peisner v Detroit Free Press, supra.

Here, again, a jury question was created, because reasonable minds could differ as to whether, after hearing plaintiffs side of the story and refusing to prosecute her, defendant Kroger’s communication that she had been stealing was malicious or in reckless disregard for the truth.

In addition, the qualified privilege did not extend to communications to employees in the other stores. From plaintiffs testimony there is a reasonable inference that the privileged communication was republished by someone — the manager, the person who opened the letter or another person who saw the letter — indiscriminately to the other employees in the store.

The general rule is that one who publishes a defamatory statement is liable for the injurious consequences of its repetition where the repetition is the natural and probable result of the original publication.

In the case at bar the republication at other stores could be found by the trier of fact as a natural and probable consequence of Kroger’s original publication of the letter. The letter was not marked confidential, and it contained the highly inflammatory communication that plaintiff had been caught stealing. Kroger should have expected republication, especially under these circumstances.

There is a genuine issue of material fact presented on the liability of Kroger for republication of the alleged defamatory letter. Hence, the trial court erred in granting defendants’ motion for summary judgment in respect to plaintiffs libel claim.

Accordingly, the trial court’s opinion is reversed and the case is remanded for trial on the false imprisonment, slander and libel charges.

Reversed and remanded. Costs to appellant.

       Plaintiff was never prosecuted for the alleged theft.

       Plaintiff does not question the validity of the trial court’s ruling in respect to her assault and battery claim.

       Such action on plaintiffs part was not at all unusual in that cashiers often shopped in the store, especially right before leaving.

       Plaintiff explained that she did not want to leave the $5 on the register unattended.

       Plaintiff had put the $5 bill in her purse after being confronted by the security officers.

       In the instant case, plaintiff did allege malice claiming that the incident which led to her discharge was prompted by her complaints to union and management concerning her seniority rights at defendant, Kroger Company.

        See Poledna v Bendix Aviation Corp, 360 Mich 129; 103 NW2d 789 (1960).

       The letter was not produced at trial. However, an affidavit signed by a Kroger employee stated that she had read the letter and that she interpreted it to mean that plaintiff was discharged from her position for theft.

       Plaintiff received phone calls from at least six different Kroger employees, all working at different locations, questioning her about her discharge for theft. These employees had no interest in the subject matter, and republication to them was not subject to any privilege.


author: McGregor, J.

text:
    SECRETARY OF STATE v GRECO
    Docket No. 77-4376.
    Submitted June 19, 1978, at Detroit.
    Decided September 5, 1978.
    Leave to appeal applied for.
    In 1975, Charles Dozier and others obtained consent judgments against Mary L. and Sam Greco for damages suffered in an automobile accident. The Grecos were uninsured, and were represented by the Secretary of State who satisfied the judgments from the Motor Vehicle Accident Claims Fund. In 1977, Mary L. Greco obtained a consent judgment against another uninsured motorist for damages arising from a subsequent automobile collision, in an amount greater than the total of the judgments in the first action. The Secretary of State represented the uninsured motorist in that action also. The Secretary of State commenced proceedings for a writ of garnishment against the State Treasurer. The State Treasurer disclosed his liability to Mary and Sam Greco and deposited with the court an amount equal to the total of the judgments in the first action. Peter R. Barbara and Associates, P. C., intervened, seeking payment of attorney fees from the garnisheed funds. The Wayne Circuit Court, Charles S. Farmer, J., ordered the distribution of the funds between Peter R. Barbara and Associates, P. C., and the Secretary of State in accordance with a stipulation of the parties. Mary Greco appeals, contending that the Secretary of State may not set off the prior judgment against the later one' and is not authorized to proceed by writ of garnishment. Held:

    The Secretary of State may obtain a judicial set-off of the competing claims against the Motor Vehicle Accident Claims Fund by proceeding in garnishment against the State Treasurer.
    Affirmed.
    References for Points in Headnotes
    [1, 3] 6 Am Jur 2d, Attachment and Garnishment § 79.
    7 Am Jur 2d, Automobiles and Highway Traffic §§ 301, 302.
    7 Am Jur 2d, Automobile Insurance §§ 135,138.
    20 Am Jur 2d, Counterclaim, Recoupment and Setoff §§ 7,18, 28.

      1. Automobiles — Uninsured Motorists — Motor Vehicle Accident Claims Fund — Set-Off—Garnishment.
    The Secretary of State may compel a judicial set-off of competing claims against the Motor Vehicle Accident Claims Fund by proceeding by writ of garnishment against the State Treasurer where an uninsured motorist on whose behalf the fund has satisfied a judgment subsequently obtains a judgment against another uninsured motorist for damages suffered in an unrelated accident.
    2. Automobiles — Uninsured Motorists — Motor Vehicle Accident Claims Fund — Competing Claims — Statutes.
    The Secretary of State is empowered by statute to raise any objection to payment of a judgment from the Motor Vehicle Accident Claims Fund and judicial determination of any matter in connection with an application for payment may be obtained if the applicant chooses to go to court to overcome the secretary’s objection; therefore, it may fairly be implied that the Secretary may raise a prior claim as subrogee against an applicant who is an uninsured motorist and compel a judicial set-off of competing claims against the fund (MCL 257.1107[2j; MSA 9.2807[2]).
    3. Automobiles — Uninsured Motorists — Motor Vehicle Accident Claim Fund — Garnishment—Statutes.
    The Secretary of State may maintain an action in his own capacity against an uninsured motorist on whose behalf he has paid an amount out of the Motor Vehicle Accident Claims Fund; it may fairly be implied, therefore, that the Secretary can proceed by writ of garnishment to collect against such an uninsured motorist where that uninsured motorist seeks satisfaction by the Secretary of a subsequent judgment against another uninsured motorist for damages suffered in an unrelated accident (MCL 257.1106[4]; MSA 9.2806[4]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Joseph B. Bilitzke and Warren R. Snyder, Assistants Attorney General, for plaintiff.

      Peter R. Barbara & Associates, P. C. (by Phil Bozzo), for defendant.

      Before: R. M. Maher, P. J., and J. H. Gillis and McGregor, JJ.

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

   McGregor, J.

Defendant Mary Greco appeals from an order of.the trial court distributing garnisheed funds between the Secretary of State and the intervening law firm. The question for decision by this Court is whether the Secretary, after satisfying a judgment against defendant uninsured motorist out of the Motor Vehicle Accident Claims Fund, may proceed by writ of garnishment against the State Treasurer, as obligor of the defendant, where the defendant has obtained a judgment as plaintiff against another uninsured motorist. We conclude that the Secretary may take such action on the facts of this case.

On October 19, 1973, Charles Dozier and others filed a complaint against Mary and Sam Greco as uninsured motorists for damages arising out of an automobile accident. The Secretary appeared on behalf of defendants pursuant to MCL 257.1108; MSA 9.2808 and, on February 26, 1975, entered consent judgments for plaintiffs totaling $16,200.60. Plaintiffs assigned these judgments to the Secretary who satisfied those judgments from the MVACF pursuant to MCL 257.1107; MSA 9.2807.

On March 3, 1977, Mary Greco obtained a consent judgment against an uninsured motorist in the amount of $17,500 for damages arising from a subsequent automobile collision. The Secretary had appeared in this action on behalf of the uninsured defendant. On April 7, 1977, the Secretary obtained a writ of garnishment directing the State Treasurer to disclose his liability to Sam and Mary Greco with respect to the consent judgment entered in the second action. The garnishee defendant disclosed a liability of $17,500 and deposited $16,200.60 with the circuit court. Defendant Mary Greco moved to quash the writ and the trial court denied that motion on June 14, 1977. Peter R. Barbara and Associates, P. C. intervened to collect legal fees from the garnisheed funds.

On September 30, 1977, the trial court ordered the distribution of the garnisheed funds in accordance with a stipulation of the parties. Peter R. Barbara and Associates, P. C. was awarded $4,705.94 and the Secretary was awarded $11,494.66. Defendant Mary Greco now appeals by right contending that case precedent prohibited the Secretary from setting off the prior judgment against the latter and that the Motor Vehicle Accident Claims Act does not authorize the Secretary to proceed by writ of garnishment.

In Castro v Goemaere, 53 Mich App 78; 218 NW2d 395 (1974), this Court stated that the Motor Vehicle Accident Claims Act does not empower the Secretary of State to set off, either administratively or judicially, an unrelated judgment paid on behalf of an uninsured motorist against a prior consent judgment entered against the fund in favor of the same uninsured motorist. Since that case involved an attempt by the Secretary to set off administratively one judgment paid on behalf of the plaintiff as an uninsured motorist against another judgment entered in plaintiff’s favor by tendering a check for the difference between the two judgments, it is distinguishable from the instant case where the Secretary obtained a judicial set-off of similar judgments by proceeding by writ of garnishment. Furthermore, since the decision in Castro, supra, dealt with the Secretary’s attempt to set off judgments of this type administratively, we view the Court’s statement in that case denying the Secretary the power of judicial set-off as mere dictum which lacks precedential value.

In Smith v Lloyd, 56 Mich App 576; 224 NW2d 670 (1974), the Court held that the act in question does not empower the Secretary of State to compel a judicial set-off of competing claims by raising a prior judgment entered on behalf of plaintiffs and satisfied by the MVACF in an action by plaintiffs against an uninsured motorist and the fund. Since the Court relied upon its prior decision in Castro, supra, as authority for its holding in Smith, supra, we decline to follow that decision.

First, as noted above, the Court’s statement in Castro, supra, that the Secretary lacks the power to compel the judicial set-off of competing claims was not necessary to the decision in that case and thus has no binding precedential effect. Furthermore, we find the reasoning of Judge Brennan in his concurring opinion in Smith, supra, more compelling than that of the majority in Castro, supra, and now hold that the Secretary of State may compel a judicial set-off of competing claims in a case of this type by proceeding by writ of garnishment against the State Treasurer where an uninsured motorist on whose behalf the MVACF has satisfied a judgment subsequently obtains a judgment against another uninsured motorist for damages suffered in an unrelated accident.

In Coffman v State Board of Examiners in Optometry, 331 Mich 582, 590; 50 NW2d 322 (1951), the Supreme Court stated the following rule of administrative law:

" Administrative boards, commissions, and officers have no common-law powers. Their powers are limited by the statutes creating them to those conferred expressly or by necessary or fair implication.’ ”

Thus, while the Motor Vehicle Accident Claims Act does not expressly empower the Secretary of State to proceed by writ of garnishment against an obligor of an uninsured motorist on whose behalf a judgment has been paid, we conclude that this power has been conferred on the Secretary by necessary and fair implication from the statute.

MCL 257.1107(2); MSA 9.2807(2) provides that:

"Where an application is made under this section, the secretary, at any time within 30 days of the receipt of the application, may give written notice to the applicant of any objection to payment of such judgment or any part of it. Where the secretary gives the notice the applicant may apply to the court entering judgment for a finding or determination in respect of any matter in connection with the application for payment out of the fund.”

Since this statutory language enables the Secretary to raise any objection to payment upon an application made by a plaintiff and provides for judicial determination of any matter in connection with the application if the plaintiff chooses to go to court in order to overcome the Secretary’s objection, it may fairly be implied that the Secretary can raise its prior claim as subrogee against the plaintiff as uninsured motorist as such an objection and compel a judicial set-off of the competing claims.

We do not believe that the Legislature intended to limit the Secretary to the objection procedure outlined above, however, since MCL 257.1106(4); MSA 9.2806(4) provides that:

"Where an amount is paid out of the fund under this section, the secretary is subrogated to the rights of the person to whom the amount is paid and may maintain an action in his own name or in the name of the person against the person responsible for the use or operation of the uninsured motor vehicle.”

Since the Secretary may maintain an action in his own name against an uninsured motorist in situations like the one in the instant case, it may fairly be implied that the Secretary can proceed by writ of garnishment to collect against an uninsured motorist on whose behalf he has satisfied a judgment where that uninsured motorist seeks satisfaction by the Secretary of a subsequent judgment against another uninsured motorist for damages suffered in an unrelated accident. When the Secretary becomes subrogated pursuant to MCL 257.1106(4); MSA 9.2806(4) to the rights of a person to whom an amount is paid out of the fund, he succeeds to that person’s judgment against the uninsured motorist. One method of enforcing a judgment which is available to the holder of the judgment is garnishment. MCL 600.4011; MSA 27A.4011. GCR 1963, 738.1.

Since no installment agreement under MCL 257.1106(5)(b); MSA 9.2806(5)(b) was entered by the parties in the instant case, the method of judicial set-off undertaken by the trial court did not interfere with the policy underlying such agreements. Thus, we find the objection to judicial set-offs on that ground as stated in Castro, supra, unconvincing.

Affirmed; no costs, a public question being involved.


author: Per Curiam. Bashara, J.

text:
    PEOPLE v DANSARD
    Docket No. 30803.
    Submitted April 13, 1978, at Detroit.
    Decided September 5, 1978.
    Leave to appeal applied for.
    Robert T. Dansard, III, was convicted of larceny over $100. On the day set for trial a variance was noted between the statutory description of the crime and the information under which the defendant was charged. The case was, therefore, remanded to district court for correction of the information and a proper return, which were subsequently filed. Thereafter, but prior to calling the selected jury into the courtroom to be sworn, the prosecutor moved to enter a nolle prosequi based on the fact that the defendant had entered a plea to a lesser included misdemeanor in the district court earlier that day, but subsequent to the filing of the information and return with the circuit court. The Monroe Circuit Court, James J. Kelley, Jr., J., denied the prosecutor’s motion and the trial proceeded resulting in the defendant’s conviction. Defendant appeals. Held:

    Exclusive jurisdiction of the case had vested in the circuit court at the time the motion for the nolle prosequi was made. The district court had no jurisdiction to accept the guilty plea. A circuit judge does not enjoy supervisory power over a prosecuting attorney. The prosecutor did not abuse the power confided to him in seeking a nolle prosequi under the circumstances of this case. The trial court abused its discretion in denying the prosecutor’s motion to enter a nolle prosequi where it was aware of a lack of competing considerations since the jury had not yet been sworn and, therefore, jeopardy had not yet attached.
    Reversed and remanded.
    Bashara, J., dissents and would hold that, since exclusive jurisdiction of this case was vested in the circuit court, the guilty plea was entered in a tribunal without jurisdiction and was, therefore, a nullity. Since the guilty plea was without legal effect, the trial court had a proper basis upon which to deny the prosecutor’s motion for a nolle prosequi.

      References for Points in Headnotes
    [1, 2, 4, 5] 20 Am Jur 2d, Courts §§ 111-117.
    21 Am Jur 2d, Criminal Law § 512 et seq.

    [3] 21 Am Jur 2d, Criminal Law §§ 175, 176.

      Opinion op the Court
    1. Courts — Circuit Courts — District and Prosecuting Attorneys —Magistrate’s Decision — Abuse of Discretion — Review— Record.
    A circuit judge does not enjoy supervisory power over a prosecuting attorney; he may reverse a magistrate’s decision only for abuse of discretion, he may not properly substitute his judgment for that of the magistrate or prosecuting attorney as if he were reviewing the magistrate’s decision de novo or acting in a supervisory capacity with respect to the prosecuting attorney, and he may reverse or revise their decisions only if it appears on the record that they have abused the power confided to them.
    2. Criminal Law — Prosecutors—Nolle Prosequi Motions — Informations — Record—Leave of Court — Jurisdiction.
    A prosecutor may not enter a nolle prosequi, once an information has been filed, or in any other way discontinue or abandon the same, without stating on the record the reasons therefor and without the leave of the court having jurisdiction to try the offense charged, entered in its minutes.
    3. Criminal Law — Jeopardy—Attachment of Jeopardy.
    A criminal defendant is placed in jeopardy once the jury is impaneled and sworn.
    4. Appeal and Error — Circuit Courts — District Courts — Abuse of Discretion — Larceny—Nolle Prosequi — Lesser Included Misdemeanors — Guilty Pleas — Jurisdiction—Prosecutors— Abuse of Power — Leave of Court — Competing Considerations — Jury—Jeopardy.
    A circuit court abused its discretion, in a trial for larceny over $100, in denying a prosecutor’s motion for a nolle prosequi which was based on the fact that the defendant had entered a plea to a lesser included misdemeanor in a district court earlier that day because the district court had no jurisdiction to accept the defendant’s guilty plea, and the exclusive jurisdiction of the case was vested in the circuit court when the motion was made, and the prosecutor did not abuse the power confided to him in requesting such a motion, where he stated his reasons for requesting the motion on the record and sought the leave of the court, and where the circuit court was aware of the absence of competing considerations since the jury had not yet been sworn and thus jeopardy had not attached.
    Dissent by Bashara, J.
    5. Appeal and Error — Circuit Courts — District Courts — Nolle Prosequi — Larceny—Lesser Included Misdemeanors — Pleas —Jurisdiction of Court.

      A circuit court had a proper basis upon which to deny a prosecutor’s motion for a nolle prosequi, in a trial for larceny over $100, where the motion was based on the fact that the defendant had entered a plea to a lesser included misdemeanor in a district court earlier that day but subsequent to the Sling of the information and return in the circuit court, and where that Sling of the information and return vested exclusive jurisdiction of the case in the circuit court, and consequently, the guilty plea was entered in a tribunal without jurisdiction and was a nullity.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael LaBeau, Prosecuting Attorney, and James S. Soltesz, Special Assistant Prosecuting Attorney, for the people.

      James H. Davies, for defendant.
    Before: T. M. Burns, P. J., and N. J. Kaufman and Bashara, JJ.
   Per Curiam.

The facts are well-stated in the dissenting opinion. Contrary to that opinion, we hold that the trial court abused its discretion in denying the prosecutor’s motion to enter a nolle prosequi.

We agree with the dissenting opinion that at the time the motion was made, exclusive jurisdiction of this case had vested in the circuit court. We further agree that the district court had no jurisdiction to accept defendant’s guilty plea. Nevertheless, "[a] circuit judge does not enjoy supervisory power over a prosecuting attorney”. Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 121; 215 NW2d 145 (1974). There, the Supreme Court noted:

" * * * once an information has been filed, it shall not be lawful for the prosecuting attorney to enter a nolle prosequi 'or in any other way to discontinue or abandon the same, without stating on the record the reasons therefor and without the leave of the court having jurisdiction to try the offense charged, entered in its minutes’.

That Court further noted:

"A circuit judge * * * may reverse a magistrate’s decision only for abuse of discretion. He may not properly substitute his judgment for that of the magistrate or prosecuting attorney as if he were reviewing the magistrate’s decision de novo or acting in a supervisory capacity with respect to the prosecuting attorney. He may reverse or revise their decisions only if it appears on the record that they have abused the power confided to them.” (Footnotes omitted.) 391 Mich at 121.

In this case, the prosecutor did state his reasons and did ask leave of the trial court. From our review of the record, we find that the prosecutor did not abuse the power confided to him. It must be remembered that "the prosecutor is the chief law enforcement officer of the county * * * ”. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683; 194 NW2d 693 (1972). It may well be that the prosecutor felt that the interests of justice would be best served by having defendant plead guilty to the lesser included misdemeanor in district court. Under the dissent’s reasoning, once jurisdiction vested in the circuit court, the prosecutor would be precluded from so doing.

This is not to suggest that the circuit court has no interest in this matter whatsoever. On the contrary, the circuit court still must prevent any possible miscarriage of justice. Most prominently, it should insure that no double jeopardy violation arises from the granting of a nolle prosequi motion. No such consideration presented itself here. As noted in People v Gardner, 37 Mich App 520, 525; 195 NW2d 62 (1972), lv den 387 Mich 771 (1972), "a defendant is placed in jeopardy once the jury is impaneled and sworn”. Significantly, when considering the motion, the trial court stated, "I did not swear the Jury, you’ll notice”. Aware of the absence of competing considerations, the trial court, therefore, abused its discretion in denying the prosecutor’s motion.

Defendant’s conviction is reversed and this case is remanded to the circuit court. The circuit court is directed to grant the prosecutor’s motion for nolle prosequi or, with the consent of the prosecutor, to accept defendant’s guilty plea on the lesser included offense.

Reversed and remanded.

Bashara, J.

(dissenting). Defendant appeals his conviction by a jury of larceny over $100. MCL 750.356; MSA 28.588.

On the day set for trial a variance was noted between the statutory description of the crime and the information under which defendant was charged. The case was remanded to the district court for correction of the information and a proper return. After numerous efforts, an information and return satisfactory to the trial court were filed.

Prior to calling the selected jury into the courtroom, the prosecutor moved to enter a nolle prosequi. As the basis for that motion, the prosecutor stated that defendant had entered a plea to a lesser included misdemeanor in the district court earlier that day, but subsequent to filing the information and return with the trial court. The motion was denied, and the trial proceeded.

Defendant contends that his constitutional immunity from double jeopardy barred trial on the felony charge after he entered a plea in the district court to a lesser included misdemeanor for the same criminal transaction. He, therefore, maintains that the trial court abused its discretion in denying the prosecutor’s motion to enter a nolle prosequi.

The theory advanced by defendant presupposes that the guilty plea entered with the district court was effective as a conviction. However, it is my opinion that the previous filing of the information and return vested exclusive jurisdiction of the case in the circuit court. People v Hanrahan, 75 Mich 611, 628; 42 NW 1124 (1889), People v White, 41 Mich App 370, 380; 200 NW2d 326 (1972). Consequently, the guilty plea was entered in a tribunal without jurisdiction and was a nullity.

Since the guilty plea was without legal effect, the trial court had a proper basis upon which to deny the prosecutor’s motion for a nolle prosequi. MCL 767.29; MSA 28.969. I conclude that the trial court properly required the case to proceed to trial.

I would affirm the conviction.

      "10 MCLA 767.29; MSA 28.969.* * * ” 391 Mich at 120.

       In so stating, we impugn no fault on the district court. All the parties were before it, and it did not know that the matter had already been commenced in circuit court.


author: Per Curiam.'

text:
    WHITAKER v SETH E GIEM & ASSOCIATES, INC
    Docket No. 77-513.
    Submitted June 14, 1978, at Grand Rapids.
    Decided September 5, 1978.
    W. Stanley Whitaker commenced an action against Seth E. Giem & Associates, Inc., G-W Enterprises, Giem & Whitaker and Seth E. Giem and Seth E. Giem, II, to dissolve the corporate entities of Seth E. Giem & Associates, G-W Enterprises and the co-partnership of Giem & Whitaker, and for an accounting of the dealings and transactions of the corporations and the co-partnership, and for payment from the individual defendants of whatever sums are determined to be due to the plaintiff, if any, as determined by the accounting. To save expenses, the parties entered into an agreement to arbitrate their differences. Two of the three arbitrators decided all issues informally and issued their opinion. This opinion was subsequently confirmed by the Kalamazoo Circuit Court, Raymond W. Fox, J., over the objections of the defendants that the requirements of statutory arbitration had not been met. The trial court did not reach the issue of whether the arbitration was statutory or common law. Defendants Seth E. Giem and Seth E. Giem, II, appeal. Held:

    1. It is clear that the parties intended to resolve their dispute through arbitration. The fact that the trial court did not reach the issue of whether the arbitration was statutory or common law is insignificant since the result of a defective statutory arbitration is a common-law arbitration and the ultimate result would be the same.
    2. The arbitrators did not violate their duties as set forth in the arbitration agreement.
    Affirmed.
    1. Arbitration and Award — Arbitration Agreement — Statutory Arbitration Agreement — Common-Law Arbitration Agreement.
    An arbitration agreement will be held to be a common-law arbitration agreement where the agreement to arbitrate is found not to be in conformity with statutory requirements.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Arbitration and Award § 17.
    [2] 5 Am Jur 2d, Arbitration and Award §§ 11-15.

      2. Arbitration and Award — Arbitration Agreement — Law of the Case.
    An agreement of arbitration constitutes the law of the case in an arbitration proceeding and the arbitrators must follow the guidelines set forth in the four corners of the document itself.
    Adams, Burgie, Scott, Ritter & Dornbos, P. C., for plaintiff.

      Dennis S. McCune, for defendants on appeal.
    Before: D. E. Holbrook, Jr., P. J., and T. M. Burns and W. Van Valkenburg, JJ.

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

   Per Curiam.'

Plaintiff filed suit to dissolve defendant corporations and requested an accounting. To save expenses, the parties entered into an agreement to arbitrate their differences. Two of the three arbitrators decided all issues informally and issued their opinion. Such opinion was subsequently confirmed by the trial court over defendants’ objection that the requirements of statutory arbitration had not been complied with. MCL 600.5001 et seq.; MSA 27A.5001 et seq. The trial court did not reach the issue of whether the arbitration was statutory or common law. Defendants appeal.

The first issue to be resolved on appeal is whether the arbitration agreement contracted for by the parties was statutory or common-law arbitration. Plaintiff admits that statutory arbitration procedures were not followed but denies that statutory arbitration was intended. Defendants claim that statutory arbitration was intended. It is clear that arbitration was intended by both parties as the method to resolve the dispute. Where an agreement to arbitrate is found not to be in conformity with statutory requirements, it will be held to be a common-law arbitration agreement. Frolich v Walbridge-Aldinger Co, 236 Mich 425, 429; 210 NW 488 (1926), Stadel v Granger Brothers, Inc, 4 Mich App 250, 258; 144 NW2d 609 (1966). Moreover, the fact that the trial court did not reach the issue of whether the arbitration was statutory or common law is insignificant since the result of a defective statutory arbitration is a common-law arbitration and the ultimate result would be the same.

The second issue on appeal is whether the arbitrators failed to comply with their statutory or contractual duties. Review of the record reveals that the arbitrators did not fail to comply with their duties. The agreement of arbitration constitutes the law of the case and the arbitrators must follow the guidelines set forth in the four corners of the document itself. Acme Cut Stone Co v New Center Development Corp, 281 Mich 32; 274 NW 700 (1937). While defendants allege numerous violations by the arbitrators none of such allegations constitute violations of the duties set forth in the arbitration agreement.

Having found that the arbitrators did not fail to comply with the statutory or contractual duties, defendants’ final issue on appeal that such failure requires reversal of the arbitration award is rendered moot.

Affirmed. Costs to appellee.


author: Per Curiam.

text:
    PEOPLE v WOODALL (IN THE MATTER OF UNITED BONDING COMPANY, SURETY)
    Docket No. 77-2526.
    Submitted June 22, 1978, at Detroit.
    Decided September 5, 1978.
    Charles Woodall failed to appear for trial in Detroit Recorder’s Court on December 8, 1969. A surety bond had been provided by United Bonding Company. However, the bond was not forfeited at that time. On March 8,1977, a nunc pro tunc order was entered forfeiting the bond as of December 8, 1969, Recorder’s Court of Detroit, Robert L. Evans, J. United Bonding Company appeals. Held:

    The nunc pro tunc order was improper because such an order may not be utilized to supply a previously omitted action. Also, since a surety bond is a contractual arrangement and the statute of limitations for commencing an action in such circumstances is six years, the entry of a judgment on the bond was barred.
    Reversed.
    1. Courts — Orders of Courts — Nunc Pro Tunc Orders — Purpose.
    The function of a nunc pro tunc order is to supply an omission in the record of an action previously taken by a court but not properly recorded; an order nunc pro tunc may not be utilized to supply a previously omitted action.
    2. Bail — Bonds—Surety Bonds — Contracts—Statute of Limitations — Forfeiture of Bond — Statutes.
    A surety bond for the purpose of assuring that a criminal defendant will appear at later proceedings is a contract between the government and the principal and surety; thus, the six-year statute of limitations for contracts bars an action to enter a judgment on a bond where the action is brought more than six years after the date of default (MCL 600.5807[8]; MSA 27A.5807[8]).
    References for Points in Headnotes
    [1] 20 Am Jur 2d, Courts § 58.
    56 Am Jur 2d, Motions, Rules, and Orders §§ 44, 46.
    [2] 8 Am Jur 2d, Bail and Recognizance §§ 147, 172.

      Seymour F. Posner and Norman L. Zemke, for United Bonding Company.
    Before: D. C. Riley, P. J., and M. F. Cavanagh and B. M. Hensick, JJ.

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

   Per Curiam.

United Bonding Company appeals as of right from an order of the Detroit Recorder’s Court entering a judgment of forfeiture on a surety bond in the amount of $500.

Although the default occurred on December 8, 1969, the bond was not forfeited. On March 8, 1977, a nunc pro tunc order was entered forfeiting the bond as of December 8, 1969. We find that the entry of this order was improper.

The function of such an order is to supply an omission in the record of action previously taken by the court but not properly recorded; an order nunc pro tunc may not be utilized to supply a previously omitted action. Sleboede v Sleboede, 384 Mich 555; 184 NW2d 923 (1971), People v Birmingham, 62 Mich App 383; 233 NW2d 551 (1975).

We recognize that no action brought upon a recognizance shall be barred by reason of any neglect or omission to record the default. MCL 765.27; MSA 28.914. However, even if an order of forfeiture had been properly entered in 1969, the action in 1977 to enter a judgment on the bond was barred by the statute of limitations. A surety bond such as the one provided in the instant case is a contract between the government and the principal and surety. People v Tom Johnson, 72 Mich App 702; 250 NW2d 508 (1976). Thus, the 6-year statute of limitations for contracts, MCL 600.5807(8); MSA 27A.5807(8), bars the action in the instant case.

Reversed. Costs to appellant.


text:
    PEOPLE v HANNA
    Docket No. 77-2981.
    Submitted June 15, 1978, at Detroit.
    Decided September 5, 1978.
    Leave to appeal applied for.
    Adel E. Hanna was convicted in Wayne Circuit Court, Thomas J. Brennan, J., of burning real property or its contents, conspiracy to burn real property or its contents, burning insured property, and conspiracy to bum insured property. All four convictions were related to a fire at a store owned by the defendant and his wife. The defendant appeals, alleging several errors in the trial. Held:

    1. The trial judge did not err in posing questions to the defendant while the defendant was on the witness stand where the questions asked were not such as to arouse suspicion in the mind of the jury as to the defendant’s credibility and in fact could have operated to the benefit of the defendant.
    2. Failure of the trial judge to give sua sponte a cautionary instruction on accomplice testimony was not reversible error where there was no imbalance in the instructions as given.
    3. Absent a request for an instruction on venue the trial court’s failure to give such an instruction was not error.
    4. No error occurred by failure to supply defense counsel with a transcript of the preliminary examination where no objection was made to the absence of the transcript and the defendant made an express waiver of his right to the transcript.

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial § 88.
    [2] 75 Am Jur 2d, Trial §§ 690, 723, 724, 818-820.
    Propriety of specific jury instruction as to credibility of accomplices, within rule requiring corroboration of their testimony. 19 ALR2d 1387.
    [3] 21 Am Jur 2d, Criminal Law § 442 et seq.

    [4] 21 Am Jur 2d, Criminal Law § 309 et seq.

    Incompetency of counsel chosen by accused as affecting validity of convictions. 74 ALR2d 1390.
    Modern status of rule as to test in Federal court of effective representation by counsel. 26 ALR Fed 218.
    [5, 6] 21 Am Jur 2d, Criminal Law §§ 185, 187-189, 212.
    Conviction of lesser offense as bar to prosecution for greater on new trial. 61 ALR2d 1141.
    [6] 5 Am Jur 2d, Arson and Related Offenses § 31.

      5. Defendant was not denied the effective assistance of counsel.
    6. The convictions on all four charges arising from a single criminal act of burning property were improper. The Legislature did not intend that there should be separate convictions and punishments for burning real property and burning insured property where the same property is involved nor separate convictions and punishments for conspiracy to burn such property. Therefore, the defendant’s convictions for burning real property or its contents and for conspiracy to burn real property or its contents are vacated.
    Affirmed in part, reversed in part.
    1. Criminal Law — Judges—Participation in Questioning — Prejudice.
    A trial judge may properly participate in the questioning of a witness, but may not, by doing so, prejudice the rights of the defendant; a judge’s questioning of a defendant did not prejudice the jury and deny the defendant a fair trial where the defendant’s answers served to explain certain testimony regarding the defendant’s financial position and could have operated to the benefit of the defendant.
    2. Criminal Law — Instructions to Jury — Cautionary Instructions —Accomplice Testimony.
    Generally, the failure of a trial judge to instruct the jury on any point of law is not a ground for setting aside a defendant’s conviction unless such an instruction was requested by the accused; although in some instances it may be reversible error to fail to give a cautionary instruction on accomplice testimony even absent a request, such a failure to give, sua sponte, a cautionary instruction was not error where there was no imbalance in the instructions which were given.
    3. Criminal Law — Preliminary Examination Transcript — Waiver.
    There is no requirement that an information or preliminary examination transcript be furnished to a defense counsel absent a request, and the right to a preliminary examination transcript may be waived by failure to object to its absence.
    4. Criminal Law — Appeal and Error — Attorney and Client — Effective Assistance op Counsel.
    The issues to be considered on review of a defendant’s claim that he was denied effective assistance of counsel are (1) did defense counsel perform at least as well as a lawyer with ordinary training and skill in the criminal law; (2) did he conscientiously protect his client’s interest, undeflected by conflicting considerations; and (3) if a mistake was made by defense counsel, was that mistake one but for which the defendant would have had a reasonable likelihood of acquittal.
    5. Criminal Law — Double Jeopardy — Multiple Charges — Single Criminal Act — Necessarily Included Offenses.
    A single criminal act may give rise to charges under more than one criminal statute where there is a clear legislative intent to do so, but where one of two offenses charged is a necessarily lesser included offense of the other convictions of both are precluded.
    6. Arson — Criminal Law — Constitutional Law — Double Jeopardy —Legislative Intent — Burning Real Property — Burning Insured Property.
    The Legislature did not intend separate convictions and punishments for conspiracy to burn real property or its contents and conspiracy to burn insured property where there is a single conspiracy relating to the same property nor separate convictions and punishments for burning real property or its contents and burning insured property where both charges relate to a single act of burning of the same property; therefore, a defendant’s conviction and sentencing for all four offenses was improper where there was only one fire burning.

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

      Michael F. Sapala, for defendant on appeal.
    Before: N. J. Kaufman, P. J., and Beasley and P. R. Mahinske, JJ.

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

   Per Curiam.

Defendant was convicted by a jury of burning real property or its contents, conspiracy to burn real property or its contents, burning insured property, and conspiracy to burn insured property. All four convictions were related to a fire at an Inkster party store owned by defendant and his wife. Defendant was sentenced to not less than one nor more than ten years in prison on each conviction, the sentences to run concurrently. He appeals as of right.

First, defendant alleges that certain questions posed to him by the trial judge indicated to the jury that the judge doubted defendant’s credibility and, thus, prejudiced the jury against him and denied him a fair trial. Objecting for the first time on appeal, defendant refers to the following exchange:

"THE COURT: I have two questions. You say you were making three thousand dollars profit a month?
"THE WITNESS: Yes.
"THE COURT: What was the total cost of the business to buy it?
"THE WITNESS: The store business, I bought it for seven thousand dollars plus inventory.
"THE COURT: You could buy a business that would make thirty six thousand dollars a year for seven thousand dollars?
"THE WITNESS: Well, at that time it was a guy who wanted to leave the store and sell it to me cheap.
"THE COURT: Any further questions?”

A trial judge has wide discretion in the conduct of a trial and may properly participate in the questioning of a witness. The judge may not, by doing so, prejudice the rights of the defendant. One proper role of questioning by the trial judge is to clarify points and to elicit additional relevant information.

Where a case is being tried before a jury, however, the judge must be specially careful that his questions or comments do not indicate partiality. It is not the number of questions asked by the court, but the content of the questions and their possible impact on the jury which is crucial to an appellate review. As noted by this Court in People v Smith:

"A new trial has been ordered where a judge’s questions and comments 'may well have unjustifiably aroused suspicion in the mind of the jury’ as to a witness’ credibility, (emphasis supplied), Simpson v Burton, supra, [328 Mich 557; 44 NW2d 178 (1950)] at 563-564, and where partiality 'quite possibly could have influenced the jury to the detriment of defendant’s case’, (emphasis supplied), People v Roby, 38 Mich App 387, 392; 196 NW2d 346 (1972).”

In the instant case, defendant’s wife had testified that she and her husband had paid $6,000 for the party store and that they were making a profit of $2,500 to $3,000 per month on the business. Defendant testified that they had paid $7,000 for the store and were making about $3,000 per month profit. We do not believe that the judge’s questions were such as "may well have unjustifiably aroused suspicion in the mind of the jury”. To the contrary, the judge’s questions could have operated to the benefit of defendant. In response to the judge’s questions, defendant was able to explain why he had gotten such a bargain in the purchase of the party store, i.e., "Well, at that time it was a guy who wanted to leave the store and sell it to me cheap”. We decline to hold that the trial judge’s questioning of defendant denied him a fair trial.

Defendant next contends that the trial judge committed reversible error in failing sua sponte to give a cautionary instruction on accomplice testimony. We do not agree.

Generally, the failure of the trial judge to instruct on any point of law is not a ground for setting aside a defendant’s conviction unless such an instruction was requested by the accused. However, the rule is not without exception. In People v McCoy, our Supreme Court stated:

"For cases tried after publication of this opinion, it will be deemed reversible error * * * (2) to fail upon request to give a cautionary instruction concerning accomplice testimony and, if the issue is closely drawn, it may be reversible error to fail to give such a cautionary instruction even in the absence of a request to charge.” (Emphasis added.)

We are not convinced that the McCoy holding requires reversal in the instant case. In McCoy, error was found in the trial court’s failure to balance care and caution language actually used in an instruction on alibi with similar language relating to the accomplice who testified against the defendant. There was no imbalance in the instructions given in the instant case. Therefore, we decline to hold that it was reversible error in the instant case for the trial judge to fail to sua sponte give a cautionary instruction on accomplice testimony.

It is next claimed by defendant that the trial judge committed reversible error by failing to instruct the jury on venue. Defendant did not request such an instruction, and, absent a request for the instruction, we decline to hold that the trial judge committed reversible error in not giving it.

Defendant next contends that his trial counse1 was unable to properly impeach an accomplice witness with prior inconsistent testimony taken at the preliminary examination in the instant case because the examination transcript was not made available to trial counsel. There is no statutory provision requiring the unrequested furnishing of an information or transcript to defense counsel. Also, the right to a preliminary examination transcript can be waived by failure to object to its absence, therefore, it cannot be seriously argued that error is committed by not furnishing an examination transcript to a defendant where that defendant, as in the instant case, does not object to the absence of the transcript and, indeed, waives his right to the transcript by an express written waiver.

Defendant also claims that he was denied effective assistance of counsel by his trial counsel’s failure to request certain instructions or object to allegedly improper instructions, by counsel’s failure to demand a copy of the preliminary examination transcript and failure to conduct a rigorous voir dire. On review of such a claim, the questions posed are: Did defense counsel perform at least as well as a lawyer with ordinary training and skill in the criminal law, and did he conscientiously protect his client’s interests, undeflected by conflicting considerations? If a mistake was made by defense counsel, was that mistake one but for which defendant would have had a reasonable likelihood of acquittal? A review of the record with the above questions in mind convinces us that defendant’s claim that he was denied effective assistance of counsel is without merit.

Finally, defendant contends that his convictions for both burning real property or its contents and burning insured property constitute a violation of his rights against double jeopardy. He also contends that his convictions for both conspiracy to burn real property or its contents and conspiracy to burn insured property violate the same double jeopardy prohibitions.

The cases indicate that a single act may give rise to a charge under more than one criminal statute when there is clear legislative intent to do so. But where one of the two offenses charged is a necessarily lesser included offense of the other, under case law definitions adopted by the Supreme Court, recent Michigan cases involving drug violations appear to hold that convictions for both based on the same act are precluded.

But, whether the basis for these rulings is the Court’s conclusion that the Legislature did not intend to permit two convictions, one for sale of heroin and one for possession of heroin, or, whether it is a new state interpretation of constitutional double jeopardy in which the judiciary interprets the words "same offense”,, as used in the double jeopardy clause of the Michigan Constitution, as not requiring any consideration for the Legislature’s intent in enacting a particular criminal statute, is far from settled.

We say "new interpretation” because we are unable to reconcile Martin and Stewart wholly with the leading Federal decisions interpreting the double jeopardy provision of the constitution. We incline to believe that the basis for the decisions in Martin and Stewart, supra, is the Supreme Court’s belief that in enacting the Controlled Substances Act of 1971, the Legislature did not intend separate sentences and separate punishments for sale of heroin and for possession of heroin where the same heroin was possessed and sold in a single, continuous transaction.

Similarly, a review of the statutes involved in the within case convinces us that the Legislature did not intend separate convictions and separate punishments for conspiracy to burn real property or its contents and conspiracy to burn insured property where there is a single conspiracy relating to the same property. Nor did the Legislature intend separate convictions and separate punishments for burning real property or its contents and burning insured property where both charges relate to a single incident of burning of the same property.

Therefore, we hold that conviction and sentencing on four separate counts under the facts in the within case was improper. Defendant’s convictions for burning real property or its contents and conspiracy to burn real property or its contents are vacated. His other two convictions, conspiracy to burn insured property and burning insured property, are affirmed.

Affirmed in part; reversed in part.

       MCL 750.73; MSA 28.'268.

       MCL 750.73; MSA 28.268; MCL 750.157(a); MSA 28.354(1).

       MCL 750.75; MSA 28.270.

       MCL 750.75; MSA 28.270; MCL 750.157(a); MSA 28.354(1).

       Failure to object at trial normally precludes appellate review of an alleged error. However, failure to object has been held to be no bar to appellate review where an objection concerning the trial judge’s conduct must be made to the trial judge himself. People v Eglar, 19 Mich App 563; 173 NW2d 5 (1969). We question the wisdom of a rule that encourages timidity on the part of trial counsel and impliedly impugns the integrity of the trial bench, by indicating that judicial impartiality is likely to melt in the heat of counsel’s objections. However, we will not hold that defendant’s lack of objection in the instant case is a bar to a review of his claim of error.

        People v Cole, 349 Mich 175; 84 NW2d 711 (1957), People v Gray, 57 Mich App 289; 225 NW2d 733 (1975).

        People v Davison, 12 Mich App 429; 163 NW2d 10 (1968), People v Smith, 64 Mich App 263; 235 NW2d 754 (1975).

        People v Smith, supra, People v Young, 364 Mich 554; 111 NW2d 870 (1961).

        People v Smith, supra, at 267.

        Id.

       MCL 768.29; MSA 28.1052; GCR 1963, 516.2, People v Burden, 395 Mich 462; 236 NW2d 505 (1975).

       392 Mich 231, 240; 220 NW2d 456 (1974).

        People v Till, 80 Mich App 16, 20-23; 263 NW2d 586 (1977), People v Atkins, 397 Mich 163; 243 NW2d 292 (1976).

       MCL 768.29; MSA 28.1052; GCR 1963, 516.2.

        People v Chambers, 25 Mich App 188; 181 NW2d 61 (1970).

        People v Bell, 26 Mich App 535; 182 NW2d 731 (1970), People v Zinn, 63 Mich App 204; 234 NW2d 452 (1975).

        People v Garcia, 398 Mich 250; 247 NW2d 547 (1976).

       US Const Am V; Const 1963, art 1, §15. Defendant does not challenge his convictions for conspiracy to commit the involved offenses and for actual subsequent commission of the offenses. Nor would such a challenge be successful under the facts of this case. Conspiracy may be an evil in itself, independently of any other evil it seeks to accomplish. Normally, the conspiracy to commit an offense and the subsequent commission of that offense do not merge into a single punishable act. Iannelli v United States, 420 US 770, 777-778; 95 S Ct 1284; 43 L Ed 2d 616 (1975).

        Jeffers v United States, 432 US 137; 97 S Ct 2207; 53 L Ed 2d 168, reh den, 434 US 880; 98 S Ct 241; 54 L Ed 2d 164 (1977). That the intent of the Legislature is controlling was affirmed by the Court, which stated:
      "The critical inquiry is whether Congress intended to punish each statutory violation separately. * * * In Iannelli v United States, [420 US 770; 95 S Ct 1284; 43 L Ed 2d 616 (1975)] the Court concluded that Congress did intend to punish violations of § 1955 separately from § 371 conspiracy violations. Since the two offenses were different, there was no need to go further. * * * If some possibility exists that the two statutory offenses are the 'same offense’ for double jeopardy purposes, however, it is necessary to examine the problem closely, in order to avoid constitutional multiple punishment difficulties.” Id. at 155; 97 S Ct at 2218; 53 L Ed 2d at 183 (citations omitted).
      Where the legislative intent is ambiguous, then certain rules of construction become applicable to determine whether separately defined crimes constitute the same offense for double jeopardy purposes. However, it is unnecessary to apply such rules or tests where the legislative intent is clear and unambiguous.
      It cannot be contended that an individual needs constitutional double jeopardy protection against the Legislature’s clear exercise of its proper penological function. The constitutional prohibition against cruel and unusual punishment, US Const Am VIII, and the due process protections, US Const Am V and XIV, and state constitutional counterparts provide adequate restraints on the Legislature’s exercise of its power to define offenses and prescribe punishments.

        People v Martin, 398 Mich 303, 309; 247 NW2d 303 (1976), People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977). In Martin, the Court stated:
      "A defendant may be charged and tried for each act that constitutes a separate crime. However, when tried for an act which includes lesser offenses, if the jury finds guilt of the greater, the defendant may not also be convicted separately of the lesser included offense. The prohibition against multiple punishment for the same crime cannot be avoided by the form of the charge. 'The form of pleading cannot assume such importance that it will permit defendant to be convicted of both the included and greater offense.’ People v Greer, 30 Cal 2d 589, 599; 184 P2d 512, 518 (1947). Accord, United States v Belt, 516 F2d 873 (CA 8, 1975), cert den 423 US 1056; 96 S Ct 790; 46 L Ed 2d 646 (1976).”

        See also, Comment, 65 Yale L J 339, 347, n 43 (1956):
      "The lesser included offense doctrine, an exception to the same evidence test, provides that when a defendant has been placed in jeopardy of conviction of one offense, he cannot be prosecuted for another which is a lesser element of the first. * * * Sometimes prosecution for the lesser offense will bar trial for the greater. * * * It will readily be seen that the lesser included offense doctrine is often merely the same evidence test in different words. Thus if defendant is indicted for murder, and the jury on the first trial can return a verdict of manslaughter, an acquittal on the first trial acquits him of both murder and manslaughter. A second trial for manslaughter would require the same evidence that would have been necessary to sustain a conviction for that 'lesser included offense’ on the first trial. It has been suggested that a better reason for barring second prosecutions, whether the first trial is for the lesser or the greater offense, is that the offenses are mutually exclusive or alternative: a defendant has committed either murder or manslaughter, never both.”

       398 Mich 303; 247 NW2d 303 (1976); 400 Mich 540; 256 NW2d 31 (1977).

        Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932), Gore v United States, 357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958), Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977).

       MCL 335.301 et seq.; MSA 18.1070(1) et seq.

       MCL 750.73; MSA 28.268; MCL 750.75; MSA 28.270; MCL 750.157(a); MSA 28.354(1).

       MCL 750.73; MSA 28.268.

       MCL 750.73; MSA 28.268; MCL 750.157(a); MSA 28.354(1).

       MCL 750.75; MSA 28.270; MCL 750.157(a); MSA 28.354(1).

       MCL 750.75; MSA 28.270.