author: D. C. Riley, J. Danhof, C.J.

text:
    PEOPLE v BARKER PEOPLE v SLAYTON
    Docket Nos. 77-2171, 78-839.
    Submitted December 12, 1978, at Detroit.
    Decided May 21, 1979.
    Leave to appeal applied for.
    James H. Barker and Claude A. Slayton, Jr., were each charged with kidnapping and first-degree criminal sexual conduct. Barker was convicted of kidnapping and third-degree criminal sexual conduct, and Slayton was convicted of kidnapping, Wayne Circuit Court, John R. Kirwan, J. Slayton appealed as of right, and Barker appealed by leave granted. The appeals were consolidated for hearing and decision. Held:

    1. The rule that movement of a victim which is merely incidental to the commission of an underlying offense is insufficient to satisfy the asportation element of kidnapping applies to a case in which the underlying offense charged is equal to kidnapping.
    2. Where asportation must be shown to be nonincidental to another charged offense, the question of asportation is for the jury. Therefore, a jury instruction which removed from the jury the question of whether there was asportation not incidental to the other charged offense was erroneous.
    Reversed and remanded.
    Danhof, C.J., dissented. He would hold that the rule, that movement of the victim merely incidental to the commission of another offense is insufficient to satisfy the element of asportation, is not applicable to a case where the other offense is equal to kidnapping. He would affirm.
    Opinion of the Court
    1. Kidnapping — Asportation — Other Offense — Incidental Movement.
    The rule that movement of a victim merely incidental to the commission of an underlying lesser offense is insufficient to satisfy the asportation element of kidnapping is applicable in a case where the underlying offense is equal to kidnapping.

      References for Points in Headnotes

       1 Am Jur 2d, Abduction and Kidnapping § 18.

       75 Am Jur 2d, Trial §§ 321, 322.

      2. Kidnapping — Asportation — Instructions to Jury — Other Offense — Incidental Movement.
    The question of whether the alleged movement of a kidnap victim was incidental to another charged offense is a question of fact for the jury in a case in which it is necessary to show movement not incidental to the other charged offense in order to sustain a kidnapping conviction; therefore, a jury instruction, in a case in which the defendant was charged with kidnapping and first-degree criminal sexual conduct, was erroneous where the instruction removed from the jury the question of whether the movement of the victim was incidental to the commission of the sexual offense.
    Dissent by Danhof, C.J.
    3. Kidnapping — Asportation — Other Offense — Incidental • Movement.

      The rule that movement of a victim which is merely incidental to the commission of an underlying lesser offense is insufficient to satisfy the asportation element of kidnapping does not apply in a case where the underlying offense is equal to kidnapping.

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

      Bell & Hudson, P.C. (by Lester D. Hudson and Ronald A. Molter), for defendants on appeal.
    Before: Danhof, C.J., and R. M. Maher and D. C. Riley, JJ.
   D. C. Riley, J.

Defendants were each charged with one count of kidnapping, MCL 750.349; MSA 28.581, and one count of first-degree criminal sexual conduct, MCL 750.520b(l); MSA 28.788(2)(1). Each crime is punishable by any term of imprisonment up to life. The complainant charged that defendants forced her into their automobile, knocked her unconscious, drive some 15 to 18 miles into the country and there raped her.

Defendant Barker was convicted by a jury of kidnapping and third-degree criminal sexual conduct, MCL 750.520d; MSA 28.788(4), and was sentenced to two concurrent prison terms of 18 months. Defendant Slayton was convicted of kidnapping, but acquitted of any criminal sexual conduct, and was sentenced to five years of probation, six months of which were to be spent in prison.

Defendant Slayton appeals as of right. Defendant Barker was granted a delayed appeal. These appeals have been consolidated for review by this Court.

Defendants raise a number of issues for our consideration. One merits discussion — their claim that the trial court erred in instructing the jury on the asportation element of kidnapping. The trial judge instructed the jury as follows:

"During the course of * * * confinement, the defendants must have forcibly moved the victim or cause[d] her to be moved from one place to another for the purpose of abduction. If the evidence convinces you beyond a reasonable doubt that there was movement and it was either for the purpose of abduction of the victim or to rape her, this is sufficient for the element of this crime.”

This is the standard criminal jury instruction on asportation where there is a possibility of an underlying crime punishable by life imprisonment. CJI 19:1:02; see id. 19:1:01, fn 1. Defendants claim the instruction is erroneous because it allowed the jury to find asportation by finding movement merely incidental to rape. We agree.

In People v Adams, 389 Mich 222, 236; 205 NW2d 415 (1973), the Supreme Court held that movement "merely incidental to the commission of’ an underlying lesser offense is insufficient to satisfy the asportation element of kidnapping. Defendants would apply that holding to situations where the underlying offense is equal to kidnapping.

We acknowledge a split of authority in the Court of Appeals on the issue of whether Adams is applicable to situations involving coequal offenses.

People v Hardesty, 67 Mich App 376; 241 NW2d 214 (1976), held that movement of a rape victim incidental to commission of the rape was sufficient to satisfy the asportation element of kidnapping. The panel perceived the rationale for the Adams rule to be "to prevent gross distortion of lesser crimes into a much more serious crime by excess prosecutorial zeal”. Id. at 378, quoting People v Adams, supra, at 232, quoting People v Miles, 23 NY2d 527, 540; 297 NYS2d 913, 922; 245 NE2d 688, 695 (1969). Since, at the time of the crimes, both rape and kidnapping were punishable by life imprisonment, the panel reasoned that the rationale for the Adams rule was inapplicable.

On the other hand, in People v Worden, 71 Mich App 507; 248 NW2d 597 (1976), the Court held that movement of an armed robbery victim incidental to the commission of a robbery was insufficient to satisfy the asportation element of kidnapping. See also People v Ross, 73 Mich App 287; 251 NW2d 268 (1977), People v Taft, 70 Mich App 634; 247 NW2d 319 (1976). The majority reasoned:

" * * * While it is true that the Adams Court was concerned with the conversion of a simple crime into a capital offense, the logic of the opinion goes further and is directed to prohibiting the conversion of a single offense into two offenses. Thus it matters not whether the single offense is a minor misdemeanor such as simple assault or a capital felony such as armed robbery.” 71 Mich App at 513-514.

This position was bolstered, by saying:

" * * * If Adams did not extend to situations involving coequal offenses, reversal and remand for failure to properly instruct on asportation would not have been ordered by this Court in People v Ford, 47 Mich App 420; 209 NW2d 507 (1973), involving rape and kidnapping, People v Leszcznyski, 49 Mich App 555; 212 NW2d 255 (1973), involving kidnapping and armed robbery, People v Behm, 52 Mich App 119; 216 NW2d 631 (1974), involving kidnapping and armed robbery, People v Culpepper, 52 Mich App 121; 216 NW2d 632 (1974), involving kidnapping and armed robbery. The fact that this Court did reverse and remand in each of these cases evinces the applicability of Adams in the instant situation.” Id. at 514. (Footnote omitted.)

Although in Adams the Supreme Court made steady reference to the "underlying lesser crime”, it also quoted approvingly from Judge (now Justice) Levin’s Court of Appeals opinion in Adams, where he said:

" 'It is obvious that virtually any assault, any battery, any rape, or any robbery involves some "intentional confinement” of the person of the victim. To read the kidnapping statute literally is to convert a misdemeanor, for example, assault and battery, into a capital offense. A literal reading of the kidnapping statute would permit a prosecutor to aggravate the charges against any assailant, robber, or rapist by charging the literal violation of the kidnapping statute which must inevitably accompany each of those offenses.’ ” 389 Mich at 232-233, quoting People v Adams, 34 Mich App 546, 560; 192 NW2d 19 (1971). (Emphasis supplied.)

We are of the opinion that the thrust of Adams is not limited solely to the prevention of the distortion of lesser offenses into those more serious, but to further prevent one crime from being transformed into two (e.g., kidnapping and rape), and that those decisions holding Adams applicable to coequal offenses represent the better reasoned approach.

It may be argued that a danger perceived by Adams, that of excessive prosecutorial zeal, is not as prevalent where two capital offenses are involved, inasmuch as the result would be two concurrent sentences of up to life instead of one.

While it is certainly true that multiple sentences in Michigan run concurrently, it is also true that the conversion of a single capital offense into two capital offenses by charging incidental movement of the victim results in not only perhaps an additional concurrent sentence up to life, but also in two chances for conviction instead of only one. It is entirely possible for the jury to acquit on the charge underlying the kidnapping but convict on the latter. For this reason, the danger of "excessive prosecutorial zeal” is equally present.

We find, therefore, that the lower court improperly instructed the jury on the asportation element of kidnapping. Although there is substantial evidence to support a jury finding of nonincidental movement, see People v Worden, supra, at 515-516, and cases cited therein, the trial court’s erroneous removal of the question from the jury requires our reversal. As stated in Adams, supra, at 238-239, when nonincidental movement is necessary to sustain a kidnapping conviction, it is a question of fact for the jury whether the alleged movement was incidental. "It is not for the Court to say that the jury would have so found, if the issue had been submitted to it.”

We have examined defendants’ three other alleged grounds for reversal and find them to be without merit.

Reversed and remanded for new trial.

R. M. Maher, J., concurred.

Danhof, C.J.

(dissenting). I dissent. The majority has misperceived the issue in this case. The question is not what is the best definition of asportation, but how much should a court read into a legislative enactment. I would go no further than the Supreme Court, has gone in remaking the "kidnapping” statute.

Accordingly, I would follow People v Hardesty, 67 Mich App 376; 241 NW2d 214 (1976). Hardesty substantially has been incorporated into the Standard Criminal Jury Instructions. Compare CJI 19:1:01 with 19:1:02. The Supreme Court has urged all members of the bench and bar to use the standard instructions. Adm Order No 1977-1, 399 Mich lxxii (1977).

       However, in a subsequent case, People v Harris, 80 Mich App 161; 262 NW2d 912 (1977), the same author wrote that Adams "appears to state that where the underlying offense is coequal in degree, viz: — a capital offense, Adams is inapplicable.” 80 Mich App at 169. No reference was made at that point to the opposite interpretation of Adams in People v Worden, 71 Mich App 507; 248 NW2d 597 (1976).

       "Indeed, under Michigan law there is little reason to charge kidnapping where the movement is incidental to an armed robbery or a rape because both of those offenses are punishable by life sentences and in Michigan all sentences, with few exceptions, run concurrently. It is only where the other offense is punishable by a sentence less than life that there is likely to be an issue whether movement incidental to the commission of that offense constituted the separate crime of kidnapping.” People v Adams, 34 Mich App 546, 569 fn 36; 192 NW2d 19 (1971). (Cross-reference omitted.)

       In the absence of a statute providing otherwise, all sentences in Michigan run concurrently. 8A Michigan Law & Practice, Criminal Law, § 714, p 390.

       I would note the cases cited to bolster the Worden position do not really stand for the proposition they were cited to support. In each case cited, People v Ford, 47 Mich App 420; 209 NW2d 507 (1973), People v Leszczynski, 49 Mich App 555; 212 NW2d 255 (1973), and People v Behm, 52 Mich App 119; 216 NW2d 631 (1974), this Court remanded for retrial because the trial judge failed to instruct the jury on the element of asportation. While each case involved coequal offenses, the decisions merely reflect, and rightly reflect, that asportation is always an element of kidnapping, unless some nonmovement element such as secret confinement supplies a necessary alternative to asportation. See e.g., People v Leszczynski, supra, at 557. They do not further hold asportation always means nonincidental movement. Each case directed upon retrial the jury should be instructed on the element of asportation "as required” or "as mandated” by Adams. On retrial of those cases the jury should have been instructed, as Adams mandates, that movement is an essential element of kidnapping, but movement incidental to an underlying coequal offense is sufficient.
      Moreover, I would note it is no longer clear that Worden even enjoys the support of its author. Worden was authored by Judge Allen. In a subsequent case of People v Harris, 80 Mich App 161; 262 NW2d 912 (1977), Judge Allen wrote that Adams "appears to state that where the underlying offense is coequal in degree, viz: — a capital offense, Adams is inapplicable.” Id. 169. No reference was made at that point to the opposite interpretation of Adams in Worden.


source: Caselaw Access Project

author: M. F. Cavanagh, J.

license: Public Domain

text:
    PEOPLE v STEIN
    Docket No. 77-2927.
    Submitted June 23, 1978, at Detroit.
    Decided May 21, 1979.
    Lawrence R. Stein was charged with armed robbery in connection with the theft of the complainant’s purse from her place of work. He was convicted of robbery not armed, Recorder’s Court of Detroit, Joseph A. Gillis, J. Defendant appeals and claims: (1) the court’s use of the "struck method” to impanel the jury constituted reversible error, (2) a jury chosen on a one day-one case basis deprived him of a fair trial by a seasoned and experienced jury, (3) the court erred in admitting evidence of six prior felony convictions for impeachment purposes, and (4) the court erred by refusing to give defendant’s requested instruction on larceny in a building. Held:

    1. The jury selection took place in open court with counsel having the opportunity to scrutinize the proceedings and to create a record. The court conducted a voir dire of all potential jurors. Defendant had the opportunity but did not submit additional questions. Counsel’s initial confusion over the use of the "struck method” of impaneling the jury did not pervade the entire proceedings so as to prevent a competent voir dire. The manner of selecting the jury did not prejudice the defendant.
    2. Defendant’s argument regarding his deprivation of a seasoned and experienced jury is without merit because reversal of the convictions of every defendant brought by juries sitting on the first day of their 30-day period would be required if defendant’s claim were upheld.

      References for Points in Headnotes

       47 Am Jur 2d, Jury §§ 194, 212.

       47 Am Jur 2d, Jury §§ 229, 267.

       5 Am Jur 2d, Appeal and Error § 888.
    47 Am Jur 2d, Jury §§ 179, 189, 192, 195, 196.

       47 Am Jur 2d, Jury § 153.

       47 Am Jur 2d, Jury § 306 et seq.

       29 Am Jur 2d, Evidence § 715.
    75 Am Jur 2d, Trial § 146.

       5 Am Jur 2d, Appeal and Error §§ 802, 880 et seq.

       29 Am Jur 2d, Evidence §§ 253, 329, 330.

       5 Am Jur 2d, Appeal and Error § 800.

       75 Am Jur 2d, Trial § 876.

      3. The trial judge fulfilled the necessary requirement of being aware that he possessed discretion to admit or exclude evidence of defendant’s prior convictions for impeachment purposes. Reversal is not warranted for admitting evidence of the prior convictions unless there was an abuse of discretion. The remoteness of the prior convictions which are admitted into evidence may constitute an abuse of discretion. The more remote the conviction the less probative it is on the issue of credibility. However, any error in admitting evidence of remote convictions was harmless beyond a reasonable doubt. Defendant admitted taking the complainant’s property, the evidence against him was overwhelming and even absent the error not a single juror might have voted for acquittal.
    4. Failure to charge the jury on the offense of larceny in a building was harmless error. The court instructed on the lesser included offense of larceny from the person, which like larceny in a building is a larceny without the use of force. It is obvious that the jury, in convicting defendant of the greater offense of unarmed robbery, rejected defendant’s theory that the larceny occurred without force.
    Affirmed.
    1. Jury — Criminal Law — Jury Selection — Appeal and Error — Court Rules.
    A substantial departure from the court rule governing jury selection is required before a criminal conviction will be reversed because the jury was improperly selected (GCR 1963, 511).
    2. Jury — Criminal Law — Jury Selection — Prejudice.
    A defendant should not be required to show prejudice before his challenge to a jury can be upheld where the events constituting his alleged claim of error occur prior to trial and outside of court supervision.
    3. Jury — Criminal Law —■ Jury Selection — "Struck Method” — Voir Dire — Prejudice — Appeal and Error.
    A defendant fails to establish prejudice in the selection of a jury sufficient for the reversal of his conviction where the jury selection took place in open court, the court conducted a voir dire of all potential jurors even questioning them individually, defendant did not submit additional questions for voir dire, although he had the opportunity to do so, and his attorney’s initial confusion over the use of the "struck method” of impaneling the jury did not pervade the entire proceedings so as to prevent a competent voir dire.
    4. Jury — Courts — Jury Selection — "Struck Method” — Court Rules.
    A trial court should not substitute the "struck method” of impaneling a jury for the accepted procedure provided by a court rule (GCR 1963, 511.6).
    5. Jury — Criminal Law — One Day-One Case — Fair Trial — Appeal and Error.
    The use of a jury chosen on a one day-one case basis cannot support a conclusion that a defendant’s conviction should be reversed on the ground that he was deprived of a fair trial by a seasoned and experienced jury chosen for 30-day jury duty because to so hold would require reversal of the convictions of every defendant brought by juries sitting on the first day of their 30-day period.
    6. Criminal Law — Evidence — Prior Convictions — Impeachment — Judge’s Discretion.
    A trial court has discretion to exclude evidence of prior convictions for impeachment purposes, and it is error to fail to recognize this discretion and, therefore, to fail or to refuse to exercise it; however, the court need not specifically state that it is exercising its discretion if the record is clear that the court was aware that it possessed the discretion.
    7. Criminal Law — Evidence — Prior Convictions — Impeachment — Judge’s Discretion — Appeal and Error — Court Rules.
    The admission of evidence of a defendant’s prior convictions for impeachment purposes should not be a ground for reversal where the trial court identifies the use of its discretion or it is evident from the record that the trial court was aware that it had discretion to permit or exclude such evidence, unless admitting evidence of the prior convictions was otherwise an abuse of discretion (GCR 1963, 529.1).
    8. Criminal Law — Evidence — Remote Prior Convictions — Admissibility — Probative Value — Judge’s Discretion. Remoteness of a defendant’s prior convictions is clearly relevant in determining whether to admit evidence of them; admission of evidence of remote convictions could constitute an abuse of court discretion because the more remote the conviction, the less probative it is on the issue of defendant’s credibility.

      9. Criminal Law — Evidence — Remote Prior Convictions — Admissibility — Harmless Error.
    The admission of evidence of a defendant’s remote prior convictions was not grounds for reversal of his unarmed robbery conviction where the error complained of was harmless beyond a reasonable doubt because defendant admitted taking the complainant’s property, the evidence against him was overwhelming and even absent the error not a single juror might have voted for acquittal.
    10. Criminal Law — Instructions to Jury — Lesser Included Offenses — Larceny From a Building — Unarmed Robbery — Use of Force.
    Larceny in a building is distinguished from the greater offense of armed robbery by the additional element that the theft occur in a building and by absence of the use of force, and while it is not a necessarily included offense of armed robbery, it is a cognate lesser included offense; therefore, where a defendant was charged with armed robbery and the evidence at trial established a larceny, its occurrence in a building and defendant’s denial of the use of force, the court had a duty to give a jury instruction on the lesser offense of larceny in a building.
    11. Criminal Law — Instructions to Jury — Lesser Included Offenses —Unarmed Robbery — Larceny Without Force — Harmless Error.
    Failure to charge a jury on the lesser offense of larceny in a building in a trial for armed robbery was harmless error where the court did instruct the jury on the lesser included offense of larceny from the person, which also involves larceny without force, because the jury was able to consider and reject a lesser, similar charge incorporating the elements of larceny absent use of force, making it evident that the jury, in convicting the defendant of the greater offense of unarmed robbery, rejected the defendant’s theory that the larceny occurred without force.

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

      George Stone, for defendant.

      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.

   M. F. Cavanagh, J.

Defendant was charged with armed robbery, MCL 750.529; MSA 28.797, in connection with the theft of the complainant’s purse from her place of work. After a jury trial, defendant was convicted of robbery not armed, MCL 750.530; MSA 28.798, and appeals as of right.

Defendant argues that the trial court’s use of the "struck method” to impanel the jury constituted reversible error. By court order dated one week before trial, the court informed the attorneys that the jury would be chosen according to the struck method approved in Swain v Alabama, 380 US 202; 85 S Ct 824; 13 L Ed 2d 759 (1965), and made the jury questionnaires available to them. Both defense counsel objected to the procedure on the day of trial.

At trial, 54 jurors were called and seated. After voir dire by the court, the prosecutor and the defense counsel alternated peremptory challenges, until a panel of 11 remained. Twenty more jurors were added to this panel and voir dired. The parties then continued alternating peremptories, until all defense peremptories were exhausted. From the 20 jurors remaining, 14 were impanelled as the jury, with 10 chosen from the first group and four from the second, in the order their names appeared on the jury list.

Jury selection procedures are governed by GCR 1963, 511. The struck method used in the case at bar departs from the court rule only in respect to § 6. Each time a peremptory was exercised, another juror was not seated and examined prior to proceeding. See GCR 1963, 511.6.

Defendant does not base his challenge on prejudice inherent in this method; indeed, this charge could hardly be sustained in light of the reasoning in Swain v Alabama, supra. Rather, he argues that GCR 1963, 511 has repealed the struck method of jury selection and thus its use constitutes error. However, the method used in the case at bar differs significantly from the struck method set out in now-repealed MCL 618.43 et seq.; MSA 27.1023 et seq., and appears never to have been specifically authorized by statute in this state. Nevertheless, it is unclear whether the departure from the provisions of GCR 1963, 511 is sufficiently grave to require the extreme remedy of reversal.

In a recently released opinion, People v Miller, 88 Mich App 210; 276 NW2d 558 (1979), another panel of this Court considered this identical issue and concluded that the defendant was not prejudiced by the use of the struck jury. However, the opinion did not discuss a number of cases that exist concerning the effect of a departure from the jury selection laws. In the most recent of these, People v Gratz, 35 Mich App 42; 192 NW2d 304 (1971), Judge, now Justice, Levin reversed defendant’s conviction because of several violations of the Revised Judicature Act by the board compiling the jury list. The Court premised reversal of the conviction upon a fear that officials not trained in the law could shortcut procedures that appear to them to be unnecessary and upon his belief that it would be unfair to require a defendant to prove prejudice from these irregularities occurring outside court supervision. Several earlier cases cited in Gratz, supra, also have discussed statutory violations in the composition of the jury array and come to similar conclusions. See People v Tonnelier, 167 Mich 638; 133 NW 510 (1911), Hewitt v Saginaw Circuit Judge, 71 Mich 287; 39 NW 56 (1888). The above cases also involved substantial departures from statutory requirements.

The above considerations do not necessarily apply to the case at bar. First, we do not view the departure from the court rule as so substantial as to require automatic reversal. This view notwithstanding, we would agree that where the events constituting the alleged error occur prior to trial and outside court supervision, a defendant ought not be required to show prejudice before his challenge to the jury can be upheld. The difficulties of tracing prejudice in such cases is evident. By contrast, however, in a jury selection taking place in open court, counsel have the opportunity to scrutinize the proceedings and to create a record. To require a showing of prejudice in such cases would not be onerous.

We do not think the defendant has established prejudice warranting reversal. The court conducted a voir dire of all potential jurors, at times questioning them individually. Defendant did not submit additional questions for voir dire, although he had the opportunity to do so. Neither did counsel’s initial confusion pervade the entire proceedings to prevent a competent voir dire. We therefore decline to reverse on this issue. We would, however, caution trial courts against reading our decision as an indorsement for the struck jury method. Indeed, in the interest of order and efficiency, we would prohibit its use and the confusion it tends to create in the trial of any future cases.

Defendant also argues that the use of a jury chosen on a one day-one case basis deprived him of trial by a seasoned and experienced jury chosen for 30-day jury duty. This argument is without merit. Were we to hold otherwise, the convictions of every defendant brought by juries sitting on the first day of the 30-day period would require reversal.

Defendant next contends that the trial court erred in admitting six prior felony convictions for impeachment purposes. The convictions complained of include three armed robbery convictions, in 1955, 1956, and 1964, and a prison escape conviction in 1966.

The trial court has the power to exercise its discretion to exclude prior convictions for impeachment purposes, and it is error for it to fail or to refuse to exercise it. People v Jackson, 391 Mich 323, 336; 217 NW2d 22 (1974). The trial judge must identify his exercise of discretion, Boyd v Wyandotte, 402 Mich 98, 103; 260 NW2d 439 (1977). However, the trial judge need not specifically state that he is exercising his discretion if the record is clear that he was aware that he possessed it. People v Makidon, 84 Mich App 287, 289; 269 NW2d 568 (1978).

In the instant case, the trial court excluded evidence of a prior conviction of a codefendant and carefully examined the record of the defendant prior to ruling on the motion to exclude. It is thus evident that the trial court was aware that it had the discretion to exclude evidence of the convictions; reversal is not warranted unless the court abused its discretion in admitting them. GCR 1963, 529.1.

Remoteness of prior convictions is clearly relevant in determining whether to admit prior convictions, since the more remote the conviction, the less probative it is on the issue of credibility. People v Penn, 71 Mich App 517, 519-521; 248 NW2d 602 (1976), lv den 400 Mich 813 (1977), People v Gunter, 76 Mich App 483, 491; 257 NW2d 133 (1977), People v Robinson, 79 Mich App 145, 164-165; 261 NW2d 544 (1977), lv den 403 Mich 814 (1978). Admission of remote convictions may indeed constitute abuse of discretion. Boyd v Wyandotte, supra, at 104.

However, we are convinced that any error that occurred was harmless. People v Adan, 83 Mich App 326, 334; 268 NW2d 397 (1978). The evidence against the defendant was overwhelming and he admitted taking the complainant’s property. We cannot find, therefore, that even absent the error complained of, one juror might have voted to acquit. People v Adan, supra.

Defendant next argues that the trial court erred by refusing to give his requested instruction on larceny in a building. The court then instructed the jury on the original charge, unarmed robbery and larceny from a person.

Larceny in a building, although not a necessarily included offense of armed robbery, People v Ora Jones, 395 Mich 379, 387; 236 NW2d 461 (1975), is a cognate lesser included offense. Larceny in a building is of the same class or category (theft offenses) as armed robbery, People v Ora Jones, supra. It is distinguished from the greater offense by its additional element that the theft occur in a building, and by the absence of the use of force. The evidence at trial established the larceny, its occurrence in a building and defendant’s denial of the use of force. The trial court would thus have had a duty to charge under the rule enunciated in People v Chamblis, 395 Mich 408, 423; 236 NW2d 473 (1975).

However, the court did instruct the jury on the lesser included offense of larceny from the person, which also involves larceny without force, although the property stolen must be in the possession or the immediate presence of the person. In convicting the defendant of the greater offense of unarmed robbery, it is evident the jury rejected defendant’s theory that the larceny occurred without force. Because the jury was able to consider and rejected a lesser, similar charge incorporating the elements of larceny absent use of force, we conclude that the court’s failure to charge the jury on larceny in a building constituted harmless error.

As to the issues remaining on appeal, we have reviewed the briefs and the record and conclude that reversal is not merited on any of these issues.

Defendant’s conviction is affirmed.


author: J. H. Gillis, J. M. F. Cavanagh, J.,

text:
    PEOPLE v LOVETT
    Docket No. 77-3490.
    Submitted November 3, 1978, at Lansing.
    Decided May 21, 1979.
    Leave to appeal applied for.
    Defendant, John H. Lovett, was convicted, on his pleas of guilty, of two counts of assault with intent to do great bodily harm less than murder in the Monroe Circuit Court, James J. Kelley, Jr., J. The incident giving rise to the convictions was that defendant fired a pistol at Morris Cheatham with intent to hurt but not kill him. The bullet struck Troy Barbier. Defendant appeals attacking the doctrine of transferred intent, the multiple convictions and the voluntariness of his pleas. Held:

    1. The doctrine of transferred intent rests on the principal that, in specific intent crimes, it is only necessary that the special state of mind exist, not that it be directed at a particular person.
    2. Under the facts, the two convictions were proper.
    3. A trial judge, in accepting a plea of guilty, is required to explain to the defendant and determine that the defendant understands the general nature of the charge but is not required to explain the elements or the substantive law applicable to the charge; the trial judge committed no error in accepting a plea of guilty after explaining to defendant that he was charged with assaulting Troy Barbier with intent to do great bodily harm less than murder where defendant indicated he understood the charge and its nature.
    4. A trial judge commits no reversible error in accepting a plea of guilty by eliciting the factual basis for the plea prior to informing defendant of his constitutional rights.
    Affirmed.
    M. F. Cavanagh, J., dissented with respect to the propriety of the multiple convictions. He would hold that defendant had only one volition in aiming the gun and had committed only one assault.

      References for Points in Headnotes
    [1, 2, 5] 21 Am Jur 2d, Criminal Law §§ 82, 83.

       6 Am Jur 2d, Assault and Battery §§ 53, 56.

       21 Am Jur 2d, Criminal Law § 487.

       21 Am Jur 2d, Criminal Law §§ 223, 484 et seq.

      Opinion of the Court
    1. Criminal Law — Specific Intent — Transferred Intent.
    The doctrine of transferred intent rests on the principle that, in specific intent crimes, it is only necessary that the specific state of mind exist, not that it be directed at a particular person.
    2. Criminal Law — Assault — Multiple Convictions — Single Act.
    A criminal defendant who fired a pistol at "A” with intent to do to "A” great bodily harm less than murder and hit "B” is properly convicted of two counts of assault with intent to do great bodily harm less than murder.
    3. Criminal Law — Plea of Guilty — Nature of the Charge.
    A trial judge, in accepting a plea of guilty, is required to explain to a defendant and determine that the defendant understands the general nature of the charge but is not required to explain the elements or the substantive law applicable to the charge.
    4. Criminal Law — Plea of Guilty — Factual Basis.
    A trial judge commits no reversible error in accepting a plea of guilty by eliciting the factual basis for the plea prior to informing defendant of his constitutional rights.
    Dissent by Cavanagh, J.
    5. Criminal Law — Assault — Multiple Convictions — Single Act — Single Volition.

      A criminal defendant who ñred a pistol at "A” with intent to do to ”A” great bodily harm less than murder and hit ”B” is properly convicted of only one count of assault with intent to do great bodily harm less than murder with respect to "B”; a second conviction with respect to ”A” is improper.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and William P. Godfroy, Assistant Prosecuting Attorney, for the people.
    State Appellate Defender Office (by Derrick A.

      Carter, Assistant Defender, and Ronald J. Bretz, Research Attorney), for defendant on appeal.
    Before: M. J. Kelley, P.J., and J. H. Gillis and M. F. Cavanagh, JJ.
   J. H. Gillis, J.

Defendant appeals from his plea-based conviction of two counts of assault with intent to do great bodily harm less than murder. MCL 750.84; MSA 28.279. Four issues are raised for our consideration.

The case arises out of a shooting incident. Defendant fired a pistol at Morris Cheatham but the bullet missed him and hit Troy Barbier, who was standing across the street.

Defendant first attacks the doctrine of "transferred intent”, claiming it unconstitutionally shifts the burden of proof to the defendant because intent is presumed.

The doctrine of transferred intent has been explained as follows:

"In the unintended-victim (or bad-aim) situation— where A aims at B but misses, hitting C — it is the view of the criminal law that A is just as guilty as if his aim had been accurate. Thus where A aims at B with a murderous intent to kill, but because of a bad aim he hits and kills C, A is uniformly held guilty of the murder of C. And if A aims at B with a first-degree-murder state of mind, he commits first degree murder as to C, by the majority view. So too, where A aims at B with intent to injure B but, missing B, hits and injures C, A is guilty of battery of C.” LaFave & Scott, Handbook on Criminal Law, ch 3, § 35, p 252-253.

The doctrine has been applied in Michigan in facts very similar to those in the case at bar. In People v Hodges, 196 Mich 546; 162 NW 966 (1917), the defendant was involved in a fight with one Honsinger. Several hours later the defendant entered a bar, pointed a revolver at Honsinger and, on the second attempt, fired. The bullet missed Honsinger and struck a bystander in the shoulder. Defendant was charged with assault with intent to kill the bystander and was convicted by a jury of assault with intent to do great bodily harm less than murder. The Supreme Court affirmed the conviction relying upon the doctrine of transferred intent.

Defendant claims that the doctrine is based on an impermissible presumption of intent. This is not true. Before defendant can be convicted it must first be shown that he had the intention to cause great bodily harm to someone. Merely because he shot the wrong person makes his crime no less heinous. It is only necessary that the state of mind exist, not that it be directed at a particular person. See State v Gardner, 57 Del 588; 203 A2d 77 (1964), Medina v People, 133 Colo 67; 291 P2d 1061 (1956).

Here, defendant admitted he shot at Cheatham intending to hurt him but not to kill him. This is the requisite mens rea of the crime of assault with intent to do great bodily harm less than murder. People v Montgomery, 43 Mich App 205; 204 NW2d 82 (1972).

Defendant also claims that he cannot be convicted of two counts of assault since he only did a single act with specific intent to injure one person.

The cases are split on this issue. Some states hold that where a single shot is fired at a group of people there is only one offense. Other states have held that, with respect to crimes against persons such as assault, "although there may be but one act pr intent, there are as many crimes as there are persons affected” as victims. People v Plumlee, 177 Cal App 2d 224, 227; 2 Cal Rptr 84 (1960).

In Michigan there appears to be no case which completely resolves this issue. In People v Raher, 92 Mich 165, 166; 52 NW 625 (1892), the Supreme Court stated:

"It has been held that where a prisoner fired a gun in the direction of a crowd he was guilty of an assault upon each. State v Nash, 86 NC 650; State v Myers, 19 Iowa, 517; Smith v Com, 100 Penn St 324.”

However, in People v Ochotski, 115 Mich 601, 610; 73 NW 889 (1898), a contrary statement was made when the Court, quoting from Bishop on Criminal Law, said the following:

"If one, by a single volition, should discharge into a congregation of people a firearm loaded with peas for shot, and eách of 50 different persons should be hit by a pea, it would be startling to affirm that he could be punished for assault and battery 50 times.”

Neither of these cases involved the precise issue before this Court. In Raher defendant fired a gun at a group of people, injuring one of them. The issue was whether it had to be shown that defendant had specific intent to harm the person hit. The Court held that it was only necessary that the defendant have specific intent to cause great bodily harm to one of the people in the group. While the Court relied upon the theory that there are as many assaults as there are victims, the defendant in that case only faced a single count. Hence, the quoted statement is only dictum.

In Ochotski, the defendant, in the course of a single fray, delivered separate blows to two people. The Court held that defendant could be charged with two assaults because they involved distinct "volitions”. This case has been cited for the proposition that Michigan does not subscribe to the "as many crimes as victims theory”. See People v Cronk, 9 Mich App 606, 612, fn 5; 157 NW2d 802 (1968). However, since the case involved multiple blows the above quotation from Bishop must also be considered dictum

While all charges arising out of a single transaction must be tried at one time, People v White, 390 Mich 245; 212 NW2d 222 (1973), a person, by a single act, can violate more than one criminal statute and thus be found guilty of multiple offenses. People v Hanna, 85 Mich App 516; 271 NW2d 299 (1978).

Where crimes against persons are involved we believe a separate interest of society has been invaded with each victim and that, therefore, where two persons are assaulted, there are two separate offenses.

Furthermore, even though the doctrine of transferred intent is involved in this case the result is not altered. In People v Carlson, 37 Cal App 3d 249; 112 Cal Rptr 321 (1974), defendant killed his pregnant wife and was found guilty of manslaughter with respect to her death. The court indicated that, assuming defendant had no intention of killing the fetus, he could, through the application of the doctrine of transferred intent, be found criminally liable for both his wife’s death and the death of the fetus:

"Under the rationale of the cases cited there can be no doubt that the doctrine of 'transferred intent’ applies even though the original object of the assault is killed as well as the person whose death was the accidental or the unintended result of the intent to kill the former. * * * [E]ach victim of the attack is to be viewed individually and without regard to which in fact died.
"Accordingly, in the present case in the application of the doctrine of transferred intent, the law would transfer defendant’s felonious intent to kill his wife to the fetus and the criminality of defendant’s act toward the fetus would be the same as that directed to his wife. Therefore, under the doctrine of transferred intent if defendant was guilty of the killing of his wife without malice, i.e., voluntary manslaughter * * *, he would normally be guilty of the voluntary manslaughter of the fetus.” 37 Cal App 349, 357.

Applying this rationale to the instant case we conclude that defendant was properly found guilty of two counts of assault with intent to do great bodily harm less than murder.

The third issue raised by defendant concerns the voluntary nature of defendant’s plea of guilty to the second charge. Defendant contends that because the doctrine of transferred intent was not explained his plea was not knowingly and understandingly made.

The trial court is required to inform the defendant and determine that he understands the general nature of the charge. The judge is not obligated to explain the elements of the offense. It would be unrealistic to impose on the judge the obligation to impart to a defendant the substantive law applicable to his case. Guilty Plea Cases, 395 Mich 96, 115, 116; 235 NW2d 132 (1975).

Here, the trial court informed defendant that he was charged with assaulting Troy Barbier with intent to do great bodily harm less than murder. Defendant replied affirmatively when asked whether he understood the charge and the nature of the charge. Thus, the judge properly complied with the requirements as set forth in Guilty Plea Cases, supra.

Defendant’s final claim of error concerns the manner in which defendant’s plea was taken. The trial court asked defendant to explain the factual basis of the plea before informing him of his constitutional rights.

While the better practice would be to advise defendant of his rights before eliciting the factual basis of the plea, in People v Peterson, 62 Mich App 258; 233 NW2d 250 (1975), the reverse sequence was held not to constitute reversible error.

Affirmed.

M. J. Kelly, P.J., concurred.

M. F. Cavanagh, J.,

(dissenting). I must dissent from the majority’s conclusion that this defendant can be convicted of two specific intent assaults. My brothers’ analysis draws heavily from California precedent which has always adopted the theory that there are as many crimes as there are victims. See People v Carlson, 37 Cal App 3d 349; 112 Cal Rptr 321 (1974), cited in the majority opinion. This conclusion is clearly a policy choice on the part of the California courts that finds little, if any, support in Michigan case law.

The case of People v Ochotski, 115 Mich 601; 73 NW 889 (1898), treats this issue in the context of a double jeopardy discussion. That case involved an altercation between the defendant and a husband and wife. The defendant struck and injured both. He was initially prosecuted for and acquitted of assault and battery as to the husband. Following conviction for his assault upon the wife, defendant claimed on appeal that his acquittal as to the husband, arising from the same transaction, barred his prosecution for the assault on the wife. The Court disagreed by distinguishing "one transaction” in which an individual may, by separate acts (each caused by a separate volition), commit distinct offenses and "one volition” that causes two harms. The Ochotski Court, in fact, suggested that if the same blows had injured both victims, then the defendant had only one volition that could be punished, (or, alternatively, that his prior acquittal barred his subsequent prosecution). The Court illustrated the "one volition” theory by the following example:

"If one, by a single volition, should discharge into a congregation of people a firearm loaded with peas for shot, and each of 50 different persons should be hit by a pea, it would be startling to affirm that he could be punished for assault and battery 50 times.” Id., p 610.

My brothers would characterize the statements in Ochotski as dicta. I disagree, since the discussion was necessary to the resolution of the double jeopardy issue. Under this rationale, therefore, I would hold that this defendant had one volition in aiming the gun and committed one assault only. This view finds support from the authors of the Michigan Standard Criminal Jury Instructions. See CJI 17:1:05 and commentary at 17-13 and People v Cronk, 9 Mich App 606, 612, fn 5; 157 NW2d 802 (1968).

I do not dispute that it is appropriate to utilize the doctrine of transferred intent as to the unintended victim. The defendant, when he fired at B (the intended victim) and hit C (the actual victim), may be convicted of assault with intent to do great bodily harm on C. The use of transferred intent in this situation is accepted in Michigan. People v Hodges, 196 Mich 546; 162 NW 966 (1917). It is really unclear under Michigan law, whether, having transferred the intent, the defendant commits any crime towards B (the intended victim). Under the "one volition” theory he can only be punished for the one assault. I would further note that when one views the purpose of the doctrine of transferred intent it appears that it is unnecessary to find the defendant guilty of a crime towards B. The purpose of the doctrine is to make the completed crime exactly what it would have been if the intended victim had in fact been injured or killed. People v Carlson, supra. By a conviction for the assault on C, this aim is achieved. For these reasons I would vacate the conviction under one of the assault counts here involved.

I concur with the majority’s disposition of the remaining issues.

       See annotations, 2 ALR 606; 20 ALR 341; 113 ALR 222.

       See also, State v Harris, 78 Wash 2d 894; 480 P2d 484 (1971), rev’d on grounds of collateral estoppel, 404 US 55; 92 S Ct 183; 30 L Ed 2d 212 (1971), (three persons injured, two of them fatally, by explosion of a bomb), Gordon v State, 503 P2d 917 (Okla 1972), State v Taylor, 185 Wash 198; 52 P2d 1252 (1936), State v Fredlund, 200 Minn 44; 273 NW 353 (1937), People v Brannon, 70 Cal App 225; 233 P 88 (1924).

       Because of an anomoly of law defendant escaped liability for the death of the fetus. California has amended its laws to make murder of a fetus a crime. However, no similar provision was made for manslaughter. Hence, had defendant been found guilty of murdering his wife he would also have been guilty of murdering the fetus. Since he was only found guilty of manslaughter, no crime was committed against the fetus. The court also rejected the prosecution’s attempt to apply the felony-murder rule.


author: D. R. Freeman, J.

text:
    THOMAS BROS, INC v SECRETARY OF STATE
    Docket No. 77-3532.
    Submitted June 7, 1978, at Lansing.
    Decided May 21, 1979.
    Leave to appeal applied for.
    Thomas Bros., Inc., Leonard V. Sweet doing business as Sweet’s Garage, and Russ Zuker Tire Service, Inc., which are motor vehicle repair facilities, brought a class action on behalf of themselves and all others similarly situated against the Secretary of State and the Director of the Bureau of Automotive Regulation to recover registration fees collected from the plaintiffs pursuant to the Motor Vehicle Service and Repair Act. Under the act, the Bureau of Automotive Regulation had promulgated rules establishing a fee schedule based upon three factors. Before those rules went into effect, the Legislature amended the act, changing the language and the upper and lower limits of the amount the bureau could charge each repair facility. The bureau then promulgated emergency rules which set forth a new fee schedule, based upon only one factor, the gross annual revenue from repairs for the last tax year. These emergency rules expired by action of law six months later. After expiration of the emergency rules, the bureau continued collecting fees according to the one-factor fee schedule. It was at this time that the action was filed. The Ingham Circuit Court, James T. Kallman, J., found that the one-factor fee schedule was not valid under the act. The bureau thereupon promulgated new emergency rules basing the fee schedule upon the three factors mentioned in the act. Upon rehearing, the circuit court affirmed its original holding, and held that all fees collected under the one-factor fee schedule were collected illegally, granted summary judgment for the plaintiffs, and ordered a refund of the fees paid. The defendants appeal. Held:

    1. The plaintiffs were not collaterally estopped from challenging the fee schedule by reason of a judgment in a prior case.
    2. The bureau was empowered to promulgate the one-factor fee schedule. The statutory language which provides that a fee schedule be based upon "such factors as the size of the facility, number of mechanics employed, and volume of repair work performed” does not require that the fees be based upon those three factors, so long as they are based upon a factor or factors like those specified. Gross annual revenue obtained from repairs is a measure of the volume of repair work performed.

      References for Points in Headnotes

       73 Am Jur 2d, Statutes §§ 145,146.

       2 Am Jur 2d, Administrative Law §§ 296-298, 303, 304.

       2 Am Jur 2d, Administrative Law §§ 306, 307.

       51 Am Jur 2d, Licenses and Permits §§ 39, 79.

       1 Am Jur 2d, Administrative Law § 129.

      3. The fees based upon gross revenue obtained from repairs bear a substantial relationship to the purposes of the act, and are not arbitrary or capricious.
    4. The emergency rules using the one-factor fee schedule were valid and those repair facilities which paid the fees during the six-month period during which those rules were in effect are not entitled to refunds.
    5. The absence of fee rules from the expiration of the first emergency rules to the time of adoption of the three-factor fee schedule following the court’s first opinion did not operate to deprive the bureau of its authority to collect fees, but made it impossible to determine lawfully the precise fees due. Therefore, fees for that time period must be redetermined by the bureau using a fee schedule embodied in validly promulgated permanent rules. Adjustments in the fees paid during that time shall be made according to the new rules promulgated.
    Affirmed in part, reversed in part, and remanded.
    1. Appeal and Error — Statutes — Construction of Statutes — Legislative Intent.
    The Court of Appeals, in construing a statute, seeks to determine and give force to the Legislature’s intent in enacting the statute.
    2. Administrative Law — Agencies — Rules — Validity — Test.
    The validity of rules promulgated by an agency empowered to make rules is determined by application of a three-part test: (1) whether the rule is within the matter covered by the statute enabling the agency to make rules; (2) if so, whether the rule complies with the underlying legislative intent; and (3) if it meets the first two requirements, whether it is neither arbitrary or capricious.
    3. Administrative Law — Statutes — Construction of Statutes.
    The construction given a statute by the agency charged with the duty of administering it is always entitled to the most respectful consideration and ought not be reversed without cogent reasons.

      4. Administrative Law — Agencies — Rules.
    Rules adopted by an administrative agency are valid so long as they are reasonable, and if doubt exists as to their invalidity they must be upheld.
    5. Licenses — License Fees — Reasonableness.
    What is a reasonable license fee depends upon the sound discretion of the legislative body imposing it, with reference to the circumstances and necessities of the case; the amount of the fee will be presumed reasonable unless the contrary appears on the face of the ordinance, by-law, or law itself, or is established by proper evidence.
    6. Licenses — License Fees — Automobile Repair Facilities — Statutes.
    The Bureau of Automotive Regulation is empowered by statute to promulgate a rule establishing a fee scale for registration of automobile repair facilities based upon the single factor of gross annual revenue of each facility (MCL 257.1330[1]; MSA 9.1720[30][1]).

      Sigal & Seeligson, for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Ronald J. Styka, Assistant Attorney General, for defendants.
    Before: Allen, P.J., and Cynar and D. R. Freeman, JJ.

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

   D. R. Freeman, J.

Plaintiffs, motor vehicle repair facilities, brought this class action to recover registration fees defendants collected from them pursuant to the Motor Vehicle Service and Repair Act. 1974 PA 300 as amended by 1976 PA 12, being MCL 257.1301 et seq.; MSA 9.1720(1) et seq. By order entered September 19, 1977, the circuit court, among other things, denied defendants’ motion for accelerated judgment, granted plaintiffs’ motion for summary judgment and directed defendants to refund to members of plaintiff class all repair facility registration fees they paid from March 1, 1976, to June 17, 1977. Defendants appeal as of right.

The material facts, although confusing, are not in dispute. Section 6 of the Motor Vehicle Service and Repair Act (hereinafter the Act) requires motor vehicle repair facilities to register. As originally enacted, § 30(1) of the Act provided:

"The registration fee for the registration of a motor vehicle repair facility shall be set by rule and shall be determined by a sliding fee scale based upon the size of the facility, number of mechanics employed, and volume of repair work performed as determined by the administrator. Such fees shall be not less than $50.00 or more than $100.00.”

On January 9, 1976, pursuant to this provision, the Bureau of Automotive Regulation (hereinafter the BAR), as administrator of the Act, promulgated Rules 24 and 25(1) establishing a $50-$100, sliding fee scale based upon size of the facility; number of mechanics employed; and gross annual revenue obtained from the performance of motor vehicle repairs, including parts and goods sold in conjunction with repairs, for the last tax year. These rules were to take effect March 1, 1976.

However, § 30(1) of the Act was amended, effective February 20, 1976, to read:

"The registration fee for the registration of a motor vehicle repair facility shall be set by rule and shall be determined by a sliding fee scale based upon such factors as the size of the facility, number of mechanics employed, and volume of repair work performed as determined by the administrator. The fees shall be not less than $25.00 or more than $300.00.” (Emphasis added.)

In response to the amendment, on February 24, 1976, the BAR mailed out repair facility registration application forms which set forth a new fee scale ranging from $25 to $300. The new scale was based upon a single factor, gross annual revenue as defined above. A cover letter directed that the application form and fee be returned within three weeks. On March 9, 1976, the BAR formally promulgated emergency Rules 24 and 25(1), to take immediate effect, embodying the new $25-$300, one-factor, gross revenue fee scale. These fee rules were never repromulgated as permanent rules or extended as emergency rules by the filing of a governor’s certificate as provided for in MCL 24.248; MSA 3.560(148). Consequently, they expired by operation of law on September 9, 1976. See MCL 24.248.

In November of 1976, the BAR mailed out registration application forms apparently to all still unregistered repair facilities, again utilizing the $25-$300, one-factor, gross revenue fee scale.

On November 12, 1976, plaintiffs filed the instant lawsuit and subsequently defendants moved for accelerated judgment and plaintiffs moved for summary judgment. On June 17, 1977, the circuit court issued an opinion. Therein the court rejected defendants’ contention that they were entitled to accelerated judgment on the ground that plaintiffs were collaterally estopped from challenging the validity of the fee rules by a judgment in a prior action. The court further held that the one-factor, gross revenue fee rules did not comport with § 30(1) of the Act, as amended:

"The legislative intent which can be gleaned from the addition of the phrase 'such factors as’ suggests a desire to free the Secretary of State from considering just those three factors. Conceivably, the legislature recognized that developing a sliding scale which is fair and just to all facilities, requires the consideration of a multitude of factors. Yet, the Secretary of State interprets this amendment as allowing the scale to be based on only one factor. Had that been the legislative intent, then the conjunctive 'size of facility, number of mechanics, and volume of work performed’ would certainly have been amended to 'or.’
"Since the statute requires that at least those three factors be considered, the sliding scale cannot be based upon only one factor merely because of administrative convenience. Rules 24 and 25 have been improperly promulgated and the collection of fees thereunder has been unlawful.” (Emphasis in original.)

In response to the trial court’s decision, on July 22, 1977, the BAR promulgated emergency Rules 24 and 25(1) establishing a $25-$300, three-factor fee scale based upon size of the facility, number of mechanics employed and gross annual revenue.

Defendants also filed a motion for rehearing and on September 8, 1977, the trial court issued a second opinion. Therein the court affirmed its original holding that the one-factor, gross revenue fee rules were invalid and held that all fees collected between March 1, 1976, and June 17, 1977, were illegally collected. The court rejected defendants’ arguments that plaintiffs were not entitled to refunds because the fees were collected pursuant to the original $50-$100, three-factor rules which the court had held valid; or because plaintiffs had paid the fees voluntarily; or because plaintiffs sought equitable relief, but did not have "clean hands”. And finally, on September 19, 1977, the trial court entered an order denying defendants’ motion for accelerated judgment, granting plaintiffs’ motion for summary judgment and ordering a refund.

At the outset, we hold that the trial court correctly rejected defendants’ contention that plaintiffs were collaterally estopped from challenging the validity of the fee rule and properly denied defendants’ motion for accelerated judgment. And we, like the trial court, are unpersuaded by defendants’ assertions that plaintiffs are not entitled to refunds because the fees were collected pursuant to the original $50-$100, three-factor rules, or because plaintiffs had paid the fees voluntarily or because plaintiffs did not have "clean hands”. Defendants’ arguments relative to these points are patently without merit and we decline to discuss them further.

In our view, all repair facility registration fees collected from March 1, 1976, through September 9, 1976, were collected pursuant to emergency Rules 24 and 25, promulgated March 9, 1976, establishing a $25-$300, sliding fee scale based upon one factor, gross annual revenue obtained from the performance of motor vehicle repairs, including parts and goods sold in conjunction with repairs. Thus, the first question we must answer is whether the Legislature, by § 30(1) of the Act, as amended, empowered the BAR to establish such a one-factor fee scale. We hold that it did.

As always, we seek to determine and give force to the Legislature’s intent in enacting the statute. Section 30(1) of the Act, as amended, expressly directs that the registration fee be set by rule. The BAR is the agency designated to administer the Act and to promulgate such rules. There can be no doubt that the Legislature may delegate such authority and that § 30(1), as amended, provides sufficient guidelines to channel the BAR’s discretion. See, generally, Dep’t of Natural Resources v Seaman, 396 Mich 299; 240 NW2d 206 (1976).

Chesapeake & O R Co v Public Service Comm, 59 Mich App 88, 98-99; 228 NW2d 843 (1975), stated the applicable test:

"Where an agency is empowered to make rules, courts employ a three-fold test to determine the validity of the rules it promulgates: (1) whether the rule is within the matter covered by the enabling statute; (2) if so, whether it complies with the underlying legislative intent; and (3) if it meets the first two requirements, when [sic] it is neither arbitrary nor capricious. Because the conflict here is over the construction of the enabling statute itself, the question of legislative intent must be intertwined with the question of whether the enabling statute covers the rule.”

Section 30(1), as originally enacted, provided that the sliding fee scale be "based upon the size of the facility, number of mechanics employed, and volume of repair work performed as determined by the administrator”. Clearly the BAR was required to consider all three factors. But § 30(1) was amended to provide that the sliding fee scale be "based upon such factors as the size of the facility, number of mechanics employed, and volume of repair work performed as determined by the administrator”. The parties agree that this change in statutory language imports a change in meaning and that the Legislature, by this amendment, intended to expand the BAR’s discretion. The difficult question is the extent to which the Legislature broadened that discretion. Section 30(1), as amended, is ambiguous in this respect. Plaintiffs argue that, under the amendment, the fee scale still must be based upon the three enumerated factors, but that it may also take into consideration additional factors. Defendants contend that the fee scale need not be based upon any of the enumerated factors so long as it is based upon a factor or factors like those specified. While we acknowledge that the matter is not without some doubt, we concur with defendants. The construction given a statute by the agency charged with the duty of administering it is always entitled to the most respectful consideration and ought not be reversed without cogent reasons. Magretta v Ambassador Steel Co (On Rehearing), 380 Mich 513, 519; 158 NW2d 473 (1968). We perceive no reasons for reversing the BAR’s construction. Had the Legislature intended to expand the BAR’s discretion only to the extent plaintiffs suggest, it would have amended § 30(1) to provide for a fee scale based upon the size of the facility, number of mechanics employed, volume of repair work performed and any other such factors as determined by the administrator.

We also note that gross annual revenue obtained from the performance of motor vehicle repairs is a measure of the statutory factor, volume of repair work performed. Further, gross revenue is necessarily, to some extent, reflective of the other two statutory factors, size of the facility and number of mechanics employed. In sum, we conclude that the one-factor rules based upon gross annual revenue were within the matter covered by § 30(1), as amended, and that they comported with the underlying legislative intent.

We now turn to the question of whether the rules were arbitrary and capricious. If there is any doubt as to the invalidity of a rule in this regard, the rule must be upheld. Toole v State Board of Dentistry, 306 Mich 527, 533-534; 11 NW2d 229 (1943), Sterling Secret Service, Inc v Dep’t of State Police, 20 Mich App 502, 514; 174 NW2d 298 (1969). In support of their argument that a fee scale based solely upon gross revenue, including parts and goods sold in conjunction with repairs, is arbitrary and capricious, plaintiffs point to the business of Russ Zuker Tire Service, Inc., one of the named plaintiffs. Russ Zuker, we are told, is a goods-intensive business; it derives 90% of its gross revenue from the sale of tires and only 10% from the provision of services in conjunction with those sales, i.e., mounting, balancing and installing tires. The purpose of the Motor Vehicle Service and Repair Act, plaintiffs suggest, is to regulate the provision of repair services, not the sale of goods. Yet, under the BAR’s one-factor, gross revenue rules, Russ Zuker’s registration fee would be based primarily on revenue obtained from the sale of tires, not on that derived from the provision of repair services. Thus, it is asserted, the fee does not bear a reasonable relationship to the purposes of the Act and Russ Zuker Tire Service, therefore, has been denied due process of law.

Further, plaintiffs contend, the fee imposed on Russ Zuker is disproportionate to the cost of regulating his business. Section 3 of the Act provides that the installation of tires is a "minor repair” and that, while repair facilities providing minor repair services are subject to the Act, employees performing only minor repairs need not be tested and certified for competence under the Act. Russ Zuker Tire Service, plaintiffs argue, requires only minimal regulation, but under a one-factor, gross revenue fee scale is required to pay the maximum fee of $300. Such a fee scale is, therefore, arbitrary and capricious, it is claimed.

We are not persuaded by plaintiffs’ reasoning. The Legislature stated the purposes of the Act in the preamble:

"AN ACT to regulate the practice of servicing and repairing motor vehicles; to proscribe unfair and deceptive practices; to provide for training and certification of mechanics; to provide for the registration of motor vehicle repair facilities; to provide for enforcement; and to prescribe penalties.”

The regulation of the practice of servicing and repairing motor vehicles and the proscription of unfair and deceptive practices encompass the regulation of the sale of parts and goods in conjunction with repairs. The BAR, as directed by the Act, has promulgated rules defining "unfair and deceptive” practices. For example, it is an unfair and deceptive practice to represent that repairs, e.g., new tires, are necessary when in fact they are not; to advertise reduced prices for products and not sell them at the advertised prices; to charge for parts supplied in excess of the estimated price without the knowing consent of the customer; or to misrepresent that, because of some defect in the customer’s motor vehicle, the customer’s safety is in jeopardy when in fact the defect does not exist. All of these proscribed practices relate to the sale of parts in conjunction with repairs. In this light, it is apparent that the Act has a much broader sweep than plaintiffs have suggested and it seems clear to us that a fee based upon gross revenue obtained from the performance of motor vehicle repairs, including parts and goods sold in conjunction with repairs, bears a very substantial relationship to the purposes of the Act, even in the case of a goods-intensive business such as Russ Zuker Tire Service.

Further, the BAR has extensive investigative and enforcement responsibilities with respect to violations of the Act and of the rules promulgated thereunder. A repair facility with high gross revenue from the sale of parts in conjunction with repairs typically will deal with a high number of customers and will generate a high number of complaints, legitimate or frivolous, requiring investigation by the BAR. The cost of regulating such a repair facility will be correspondingly high. We see little relevance to the fact that those of Russ Zuker’s employees who perform only minor repairs such as the installation of tires need not be tested for competence and certified under the Act. A repair facility employing primarily workers who perform only minor repairs is no less likely to engage in unfair and deceptive practices than one employing only specialty and master mechanics who must be certified. We would also point out that the cost of testing and certifying mechanics is not covered by the repair facility registration fee, but rather by a separate certification fee.

Fletcher Oil Co v Bay City, 247 Mich 572, 576-577; 226 NW 248 (1929), stated the dispositive principles:

"What is a reasonable license fee must depend upon the sound discretion of the legislative body imposing it, having reference to the circumstances and necessities of the case. It will be presumed the amount of the fee is reasonable unless it contrarily appears upon the face of the ordinance, by-law, or law itself, or is established by proper evidence.”

See, also, Merrelli v St Clair Shores, 355 Mich 575; 96 NW2d 144 (1959), People v Riksen, 284 Mich 284; 279 NW 513 (1938). Plaintiffs have failed to rebut this presumption.

In sum, we hold that § 30(1) of the Act, as amended, empowers the BAR to promulgate a rule establishing a sliding fee scale based upon a single factor, gross annual revenue obtained from the performance of motor vehicle repairs, including parts and goods sold in conjunction with repairs; that the emergency rules promulgated on March 9, 1976, and in effect through September 9, 1976, were valid; and that those members of plaintiff class who paid registration fees from March 1, 1976, through September 9, 1976, are not entitled to refunds.

The second question we must answer is whether those members of plaintiff class who paid registration fees after September 9, 1976, but before July 22, 1977, are entitled to refunds. During this period no fee rules were in effect.

We begin our analysis with the observation that the BAR’S basic authority to collect registration fees derived from the statute, not from the rules promulgated thereunder. Section 30(1), as amended, mandated that a fee of not less than $25 be collected. For this reason, irrespective of the BAR’S failure to promulgate a fee rule, every repair facility was liable for a fee of, at least, $25. Section 30(1), as amended, also mandated that the fees range up to $300 and that the precise fee for each repair facility be "determined by a sliding fee scale based upon such factors as the size of the facility, number of mechanics employed, and volume of repair work performed”. For these reasons, irrespective of the BAR’s failure to promulgate a rule, some repair facilities were liable for fees greater than $25. The function of the fee rules was merely to fix the precise fee for each facility. The absence of fee rules did not operate to deprive the BAR of its basic authority to collect fees, or to absolve plaintiffs of this statutorily imposed liability, but did make it impossible lawfully to determine the precise fee due from each repair facility.

During the period after September 9, 1976, and before July 22, 1977, the BAR apparently calculated the registration fees on the basis of the $25-$300, one-factor, gross revenue scale established by the expired emergency rules. We have held that § 30(1) of the Act, as amended, empowered the BAR to promulgate such rules. However, this does not mean that, absent validly promulgated rules establishing such a fee scale, the BAR may fix fees on that basis. Chapter 3 of the Administrative Procedures Act of 1969 (hereinafter the APA), MCL 24.231-24.264; MSA 3.560(131)-3.560(164), provides an elaborate procedure for the promulgation of rules by an administrative agency. Pursuant to § 48(1) of the APA, the BAR might have extended its emergency rules for up to six months, but only with the concurrence of the Governor. Pursuant to § 45 of the APA, the BAR might have repromulgated its emergency rules as permanent rules, but only with the concurrence of the joint legislative committee on administrative rules. The BAR may not circumvent the strictures imposed upon it by the APA by calculating fees on the basis of a fee scale not embodied in validly promulgated rules. We cannot usurp the prerogative of the Governor or the committee on administrative rules by presuming that either would have concurred had the BAR attempted to extend or repromulgate the emergency, single-factor, gross revenue fee rules. Accordingly, we hold that the BAR must now redetermine the registration fees paid by members of plaintiff class after September 9, 1976, and before July 22, 1977, pursuant to a sliding fee scale embodied in validly promulgated permanent rules. That fee scale may be based upon a single factor, gross revenue, or upon all three of the factors enumerated in § 30(1) of the Act.

Some members of plaintiff class who paid registration fees during this period may be entitled to refunds. But we emphasize that any such refunds will be in the amount of any difference between the fee actually paid and the fee due as calculated pursuant to validly promulgated fee rules. Other members of plaintiff class who paid registration fees during this period may be liable for additional payments. Such additional payments will be in the amount of any difference between the fee actually paid and the fee due as calculated pursuant to validly promulgated fee rules.

Finally, we would note that plaintiffs have not alleged that the BAR denied any of them a registration for failing to tender a fee in the correct amount or sanctioned any of them for failing to obtain a registration. We are unable to discern how plaintiffs might have been adversely affected by the BAR’s failure timely to promulgate fee rules. Every plaintiff knew from the outset that if it engaged in the business of a motor vehicle repair facility liability for a fee within the relatively narrow statutory range of $25-$300 would be incurred. The BAR will now redetermine the precise fee owed by each plaintiff who paid between September 9, 1976, and July 22, 1977, pursuant to a fee scale embodied in validly promulgated rules. We perceive no appreciable prejudice to plaintiffs from allowing these rules this exceedingly limited retroactive operation. Were it otherwise, we would be impelled to reach a different result.

The matter is remanded to the trial court for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

       By orders entered earlier, this Court stayed all proceedings below and sequestered all repair facility registration fees collected for the registration year beginning October 1, 1977, pending a final disposition of this cause.

       1976 AACS R 257.124.

       1976 AACS R 257.125(1).

         1976 AACS, Supp No 87, p 5.

       1976 AACS, Supp No 87, p 5.

       1977 AACS, Supp No 92, p 6.

       1977 AACS, Supp No 92, p 6.

       These rules were repromulgated, with a minor variation not relevant here, as permanent rules on December 29, 1977. See 1978 AACS R 257.124, 257.125(1).

       We reach this conclusion because it does not appear that any fees were actually calculated or collected on the basis of the original $50-$100, three-factor rules promulgated before § 30(1) of the Act was amended, and because, although the BAR mailed out registration application forms setting forth a $25-$300, one-factor fee scale on February 24, 1976, before any rules establishing such a fee scale were actually promulgated, repair facilities were given three weeks to register and during that three-week period, on March 9, 1976, emergency rules establishing such a fee scale were promulgated. These rules did not expire until September 9, 1976.

       See, also, 1978 AACS R 257.111.

       See MCL 257.1309(i)(i); MSA 9.1720(9)(i)(i).

       1976 AACS R 257.131-257.137.

       1976 AACS R 257.132(c).

       1976 AACS R 257.134(a).

       1976 AACS R 257.136(b).

       1976 AACS R 257.137(d).

       See MCL 257.1321, 257.1322, 257.1326, 257.1327, 257.1328; MSA 9.1720(21), 9.1720(22), 9.1720(26), 9.1720(27), 9.1720(28).

       MCL 257.1305(3); MSA 9.1720(5)(3).

       MCL 257.1309; MSA 9.1720(9).

       We see absolutely no justification in law or in equity for ordering a refund of all fees collected while no fee rules were in effect. As noted above, the BAR’S basic authority to collect, and plaintiffs’ liability for, registration fees derived from the statute. Section 30(1), as amended, has been in full force and effect from February 20, 1976, to the present. That provision imposed upon plaintiff class a liability for registration fees in amounts between $25 and $300 as determined by a sliding fee scale based upon such factors as the size of the facility, number of mechanics employed and volume of repair work performed. To order a refund of all fees collected while no rules were in effect would thwart the clear intent of the Legislature that fees in these amounts be collected, hamper implementation of the Act by depriving the BAR of funds intended to finance its operation and afford some members of plaintiff class a windfall recovery.
      Parenthetically, we would also note that even had we held invalid the emergency, one-factor, gross revenue fee rules in effect between March 9, 1976, and September 9, 1976, members of plaintiff class who paid registration fees during that period would be entitled to refunds only in amounts of the difference between the fee actually paid and the fee due as calculated pursuant to valid rules.

       As plaintiffs’ liability for registration fees derived from § 30(1) of the Act, as amended, and as that provision was in effect from February 20, 1976, to present, we do not see our decision as imposing liability retroactively. It is only the precise amount due that is being determined after the fact.

       After the BAR has made any necessary adjustments in the registration fees of those repair facilities that paid while no fee rules were in effect, we will entertain a motion to dissolve our order sequestering fees collected for the registration year beginning October 1, 1977.