author: Per Curiam. Allen, P.J.

text:
    PEOPLE v McGORE
    Docket No. 78-1076.
    Submitted November 8, 1978, at Detroit.
    Decided January 17, 1979.
    Leave to appeal applied for.
    Darrel McGore was convicted, on his plea of guilty, of possession of heroin and possession of a firearm during the commission of a felony, Recorder’s Court of Detroit, Joseph A. Gillis, J. The defendant appeals, alleging that the felony-firearm statute is to be applied only to crimes which endanger people where a firearm is often used in the commission of that crime and that, since possession of heroin does not endanger people or require the use of a weapon, the felony-firearm statute should not be applied to him. Held:

    1. The felony-firearm statute does not require use of a weapon, only possession, and the defendant did have possession of a firearm during the commission of the felony, possession of heroin. The possession of heroin is not one of the felonies excepted from the coverage of the felony-firearm statute. The defendant’s conduct does fall within the ambit of the felony-firearm statute.
    2. The underlying felony in a felony-firearm prosecution is a necessarily included offense of felony-firearm. Thus it was a violation of the defendant’s guarantees against double jeopardy to convict the defendant of both the underlying felony and felony-firearm.
    The defendant’s conviction and sentence for felony-firearm are vacated, the conviction and sentence for possession of heroin are affirmed.
    Allen, P.J., dissented. He would hold inoperable that portion of the felony-firearm statute which creates a separate offense. Also, he would reverse the defendant’s separate conviction for a violation of the felony-firearm statute, but would affirm the defendant’s conviction for possession of heroin and would affirm the defendant’s sentence imposed for that conviction, as enhanced by the mandatory term of the felony-firearm statute.

      References for Points in Headnotes

       79 Am Jur 2d, Weapons and Firearms § 3.

       21 Am Jur 2d, Criminal Law § 181 et seq.

       21 Am Jur 2d, Criminal Law §§ 569-572, 583-585.

      Opinion of the Court
    1. Criminal Law — Felony-Firearm Statute — Application of Statute.
    The application of the felony-firearm statute is not limited only to - those felonies where people are generally endangered by the use of a weapon (MCL 750.227b; MSA 28.424[2]).
    2. Constitutional Law — Double Jeopardy — Felony-Firearm — Necessarily Included Offense — Statutes.
    The underlying felony involved in a violation of the felony-firearm statute is a necessarily included offense in the crime of felony-firearm and, as such, punishment for both offenses is violative of the constitutional prohibition of double jeopardy (MCL 750.227b; MSA 28.424[2]).
    Dissent by Allen, P.J.
    3. Criminal Law — Felony-Firearm — Sentence Enhancement Statute — Underlying Felony — Statutes.

      The felony-firearm statute is to be viewed as a sentence enhancement statute and not as a statute which creates a separate offense; therefore, where a defendant has been convicted of an underlying felony and of possession of a firearm in the commission or attempted commission of the underlying felony, the separate conviction for felony-firearm should be reversed but the sentence for the underlying felony, as augmented by the mandatory sentence provision of the felony-firearm statute, should be affirmed (MCL 750.227b; MSA 28.424[2]).

      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 Prosecuting Attorney, for the people.

      Townsend, Haley & Overton, for defendant on appeal.

      Before: Allen, P.J., and R. M. Maher and J. E. Townsend, JJ.

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

   Per Curiam.

Defendant was arrested for possession of heroin as he walked down the steps of a hotel. When he saw the police he attempted to discard the heroin. He also tried to get rid of a gun which he had concealed under his coat. Following a plea of guilty to a charge of possession of heroin, MCL 335.341; MSA 18.1070(41), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), he was sentenced to two years probation on the possession of heroin conviction and two years in prison on the felony-firearm conviction, and appeals of right.

On appeal, defendant raises an issue of apparent first impression. He argues that the felony-firearm statute is designed to be applied only to crimes which endanger people where a firearm is often used in their commission. Since possession of heroin does not endanger people or require the use of a weapon, defendant contends that the felony-firearm statute should not be applied to him.

The wording of the statute belies defendant’s contention. MCL 750.227b; MSA 28.424(2) creates a felony and provides for punishment where a person "carries or has in his possession a firearm at the time he commits or attempts to commit a felony”. The statute does not require use of a weapon, only possession, and defendant did have a firearm in his possession when he committed the felony of possession of heroin. The statute further provides an exception to the crime when the underlying felony is carrying a concealed weapon or possession of a pistol outside the scope of a license. Hence, the Legislature considered exceptions to the statute, and decided not to limit the statute only to crimes where people generally are endangered by the use of a weapon, as defendant suggests. This panel unanimously holds that defendant’s conduct falls within the ambit of the statute.

Prior panels of this Court have divided almost evenly on the question of whether the felony-firearm statute is violative of the constitutional protection against double jeopardy. The members of this panel also divide on this question which, though not raised in defendant’s brief, we feel in fairness should be raised by this Court. No useful purpose is served by restating at length the rationale of the conflicting opinions. Instead, two members of this panel incorporate by reference the majority opinion in Wayne County Prosecutor v Recorders Court Judge, supra, and People v Berry, supra, and the majority opinion of this panel in People v Harris, post, 88 Mich App 280; 276 NW2d 582 (1978). Those opinions hold that the underlying felony is a necessarily included offense of the felony-firearm charge and, as such, punishment for both offenses is violative of the constitutional prohibition of double jeopardy. Under those decisions the conviction for the underlying felony (possession of heroin in the case before us) was affirmed and the conviction under the felony-firearm statute was vacated.

Accordingly, in the case before us defendant’s conviction and sentence to two years in prison for felony-firearm are vacated and the conviction and sentence for possession of heroin are affirmed.

Allen, P.J.

(dissenting). I agree with the majority that the felony-firearm statute applies in the present case even though the 20-gauge shotgun was not used in the possession of heroin offense. I disagree that double jeopardy attaches. In support of my dissent I adopt by reference the majority opinion in People v McDowell, 85 Mich App 697; 272 NW2d 576 (1978), and in People v Burton, 87 Mich App 598; 274 NW2d 849 (1978).

Under those opinions, that part of the felony-firearm statute which creates a separate offense is found inoperable and with the offending language thus removed, the statute is construed to be a minimum sentencing statute setting forth a mandatory minimum term of incarceration for the underlying felony. In the case before us the underlying felony is possession of heroin for which defendant was given two years probation. Under the felony-firearm statute the minimum mandatory sentence would be two years in prison. I would affirm defendant’s conviction and sentence in full.

       On September 20, 1978, the Court of Appeals released six opinions dealing with the question of whether the additional crime of felony-firearm over an underlying felony containing the use of a firearm constitutes double jeopardy. Three opinions found double jeopardy. Wayne County Prosecutor v Recorder’s Court Judge, 85 Mich App 727; 272 NW2d 587 (1978), People v Brintley, 85 Mich App 714; 272 NW2d 582 (1978), People v Berry, 85 Mich App 764; 272 NW2d 604 (1978). Four opinions found the statute nonviolative of the constitutional prohibition against double jeopardy. People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978), People v Gary Hughes, 85 Mich App 674; 272 NW2d 567 (1978), People v Mitchell, 85 Mich App 757; 272 NW2d 601 (1978), People v McDowell, 85 Mich App 697; 272 NW2d 576 (1978). On September 21, 1978, Chief Judge Danhof advised the Supreme Court of the split and requested that leave be granted and the issue decided. People v Blount, 87 Mich App 501; 275 NW2d 21 (1978), follows the McDowell-type rationale and upholds the sentence.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    SHWARY v CRANETROL CORPORATION
    Docket No. 78-1101.
    Submitted December 13, 1978, at Detroit.
    Decided January 17, 1979.
    Leave to appeal applied for.
    Richard Shwary was injured on the job when he was struck by falling bars of steel and he and his wife Barbara Shwary filed an action for damages against Cranetrol Corporation and Northern Engineering Corporation, both of which were involved with the installation, inspection and operation of an overhead crane which was being used by Shwary and a co-employee at the time of the injury, and against Francis Fodale, an inspector for the Michigan Department of Labor. Subsequently, in an amended complaint, Continental Casualty Company was named a party defendant. Continental was the workmen’s compensation insurance carrier for Shwary’s employer. The Shwarys alleged that Continental was liable for damages for having conducted negligent safety inspections of the employer’s place of business. Continental moved for summary judgment on the basis of statutory immunity from liability, and the Wayne Circuit Court, Joseph G. Rashid, J., granted the motion and dismissed the action as to Continental. The Shwarys appeal. Held:

    1. Summary judgment was proper. The Worker’s Disability Compensation Act grants immunity to workmen’s compensation carriers from liability for damages for injury or death of an employee arising from a negligent safety inspection.
    2. The immunity statute does not create an unconstitutional denial of equal protection by providing immunity to insurance carriers but not to other third-party tortfeasors.
    Affirmed.
    1. Workmen’s Compensation — Insurance Carriers — Negligent Safety Inspections — Immunity from Liability — Statutes.
    The Legislature, in an amendment to the Worker’s Disability Compensation Act, clearly intended to provide a workmen’s compensation insurer with immunity from liability for damages for injury or death of an employee arising from any negligent safety inspections (MCL 418.827[8]; MSA 17.237[827][8]).

      References for Points in Headnotes

       57 Am Jur 2d, Negligence §§ 120-122, 334.
    82 Am Jur 2d, Workmen’s Compensation §§ 673, 679.

      2. Workmen’s Compensation — Insurance Carriers — Negligent Safety Inspections — Immunity from Liability — Constitutional Law — Equal Protection — Statutes.
    A statute which provides a workmen’s compensation carrier with immunity from liability for damages arising from a negligent safety inspection and which is challenged on the basis of equal protection is to be examined under the "rational basis” standard, under which a legislative classification will be sustained if any state of facts reasonably can be conceived that would sustain it (MCL 418.827[8]; MSA 17.237[827][8]).
    3. Workmen’s Compensation — Insurance Carriers — Negligent Safety Inspections — Immunity from Liability — Constitutional Law — Equal Protection — Statutes.
    A rational basis for a statute which provides immunity from liability for negligent safety inspections to workmen’s compensation carriers, but not to other third-party tortfeasors, is that the Legislature wished to encourage safety inspections; this is rationally related to the purposes of the Worker’s Disability Compensation Act, and the classification does not constitute a denial of equal protection (MCL 418.827[8]; MSA 17.237[827][8]).

      Hurwitz & Karp, for plaintiffs.

      William J. Petersmark, for defendant Continental Casualty Company.
    Before: Danhof, C.J., and R. M. Maher and D. C. Riley, JJ.
   Per Curiam.

As a result of Richard Schwary’s work-related injury, he and his wife Barbara Schwary filed suit on April 13, 1977, against certain individuals as third-party tortfeasors. Upon learning that Continental Casualty Company, insurer for the plaintiff-husband’s employer, had conducted safety inspections at the work site, plaintiffs amended their complaint to include them as a defendant. On January 24, 1978, Continental moved for summary judgment and dismissal as a party, arguing that in light of the Legislature’s 1972 amendments to the Worker’s Disability Compensation Act, MCL 418.101 et seq.; MSA 17.237(101) et seq., it had been granted immunity from such third-party liability. This motion was granted by the lower court, and plaintiffs appeal as of right.

As part of the act’s 1972 modifications, the definition of "employer” was changed to read as follows:

"The right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer. As used in this section and section 827 'employee’ includes the person injured, his personal representatives and any other person to whom a claim accrues by reason of the injury to or death of the employee, and 'employer’ includes his insurer, a service agent to a self-insured employer, and the accident fund insofar as they furnish, or fail to furnish, safety inspections or safety advisory services incident to providing workmen’s compensation insurance or incident to a self-insured employer’s liability servicing contract.” MCL 418.131; MSA 17.237(131).

In addition, a new section to the statute was added providing that:

"The furnishing of, or failure to furnish, safety inspections or safety advisory services incident to providing workmen’s compensation insurance, or pursuant to a contract providing for safety inspections or safety advisory services between the employer and a self-insurance service organization or a union shall not subject the insurer, self-insured service organization or the accident fund, or their agents or employees, or the union, its members or the members of its safety committee, to third party liability for damages for injury, death or loss resulting therefrom.” MCL 418.827(8); MSA 17.237(827X8).

A reading of this amendatory language clearly indicates a legislative intent to afford immunity protection for insurance carriers. See Smith v Sentry Ins, 76 Mich App 663; 257 NW2d 210 (1977), Andrews v Ins Co of North America, 60 Mich App 190, 196; 230 NW2d 371 (1975). Plaintiffs’ contention that Michigan courts have rejected the notion of carrier immunization from tort liability arising from negligent safety inspections is founded on cases decided prior to, or dealing with injuries occurring before, the effective date of the 1972 alterations, and are therefore not controlling. The lower court properly granted summary judgment based upon Continental’s immunity.

However, plaintiffs maintain that any such grant of immunity contravenes the equal protection clause by denying a right of action against worker’s compensation carriers while allowing actions against other third party tortfeasors. Plaintiffs further allege that there is no rational basis underlying such a policy.

In Manistee Bank & Trust Co v McGowan, 394 Mich 655, 669-670; 232 NW2d 636 (1975), the Supreme Court espoused two different equal protection standards with regard to economic and social welfare legislation: the traditional rational basis test and a stricter standard whereby a classification must possess a fair and substantial relation to the object of the legislation.

We decline plaintiffs’ advocation to adopt the more stringent approach. The Court in Manistee specifically noted under what circumstances the fair and substantial relation test might be employed:

"* * * [A]t least where the challenged statute carves out a discrete exception to a general rule and the statutory exception is no longer experimental, the substantial-relation-to-the-object test should be applied.
"Where a classification scheme creates a discrete exception to a general rule and has been enforced for a sufficiently long period of time that all the rationales likely to be advanced in its support have been developed, a court should fully examine those rationales and determine whether they are sound.” Manistee at 671-672.

While this statutory grant of immunity to a worker’s compensation insurer may be said to carve out an exception to the general rule, these amendments cannot be considered "no longer experimental”. In Shavers v Attorney General, 402 Mich 554, 613 n 37; 267 NW2d 72 (1978), the Court considered Michigan’s no-fault automobile insurance statute experimental since it had only been in effect for five years. We do not believe a six-year operative period in the instant case compels any different result. Manistee, supra, itself concerned the constitutionality of the state’s 45-year-old guest passenger act. We conclude, as did another panel of this Court in Garrett v International Ins Co, 68 Mich App 418, 420-421; 242 NW2d 798 (1976), that the instant legislation is to be examined by the "rational basis” standard, under which a classification will be sustained "if any state of facts reasonably can be conceived that would sustain it * * Cruz v Chevrolet Grey Iron Div, General Motors Corp, 398 Mich 117, 127; 247 NW2d 764 (1976), quoting Lindsley v Natural Carbonic Gas Co, 220 US 61, 78-79; 31 S Ct 337; 55 L Ed 369 (1911). As Garrett, supra, at 421 noted:

"A rational basis for the classification can be readily hypothesized: the Legislature granted immunity to the carriers in order to encourage safety inspections.”

While Continental cites plausible arguments why this type of carrier immunity might not be the wisest of choices, that determination is properly a legislative prerogative, and we are compelled to uphold the amendments as constitutional unless they are shown to be essentially capricious, arbitrary, and without a rational basis. We cannot say such a showing has been made here. The encouragement of inspections designed to result in a safer working environment and, therefore, reduced industrial accidents is rationally related to the purposes of the Worker’s Disability Compensation Act. Thus, we conclude that these amendments do not constitute a denial of equal protection.

Finally, we note plaintiffs’ assertion that the 1972 amendments violate the title-object provision of the Michigan Constitution was not presented to the lower court in order to preserve the question for appellate review, Security Ins Co v Daniels, 70 Mich App 100, 115; 245 NW2d 418 (1976), and, in any event, this issue has been previously considered and rebuffed by this Court. Garrett, supra at 421-422.

Affirmed. Costs to defendant.

       See, e.g., Watson v Employers Ins Co of Wausau, 50 Mich App 597; 213 NW2d 765 (1973), Ray v Transamerica Ins Co, 10 Mich App 55; 158 NW2d 786 (1968), lv den 381 Mich 766 (1968).

       Const 1963, art 4, § 24.


text:
    PEOPLE v SAYLOR
    Docket No. 78-2599.
    Submitted November 15, 1978, at Lansing.
    Decided January 17, 1979.
    Barry L. Saylor was convicted, on his plea of guilty, of unarmed robbery, in Genesee Circuit Court, Robert M. Ransom, J. His sentence was deferred and he was ordered to participate in a drug treatment program. He left the program without permission and was notified to appear for sentencing. A sentence was imposed. Defendant appeals, alleging that there was an insufficient factual basis for his guilty plea, that the plea was coerced, and that he was denied due process of law when he was sentenced without prior notice of the charges and a full adversary hearing. Held:

    1. Defendant’s claim of an insufficient factual basis for his plea of guilty is totally without merit. Failure to provide an adequate factual basis in the first instance did not invalidate the plea where after consultation with counsel several pertinent details of the crime, previously omitted, were revealed to the court, and where defendant’s second account of the crime was not inconsistent with his initial version and did establish the necessary factual basis for plea acceptance.
    2. Defendant failed to file a motion in the trial court to vacate his plea; therefore, the issue of coercion at the plea acceptance hearing was not properly saved for review. A defendant, before appeal, is required to file a proper motion in the trial court to set aside his plea and to make a special record factually supporting his claim.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 492 (supp).

       4 Am Jur 2d, Appeal and Review §§ 352, 355, 495.
    21 Am Jur 2d, Criminal Law §§ 485.

       21 Am Jur 2d, Criminal Law §§ 485, 486.

       21 Am Jur 2d, Criminal Law §§ 526, 555, 568.
    Right to notice and hearing before revocation of suspension of sentence, parole, conditional pardon, or probation. 29 ALR2d 1074.

       Comment note—-Procedural requirements, under Federal Constitution, applicable to revocation of probation parole. 36 L Ed 2d 1077.

       21 Am Jur 2d, Criminal Law § 566.

       21 Am Jur 2d, Criminal Law §§ 303, 530.

      3. Where there is no indication on the record that a plea was coerced and the defendant, after providing a factual basis for his plea, states that he was pleading guilty of his own free choice, the plea is considered voluntary, and a trial judge is under no duty to make further inquiry.
    4. There is no provision for a hearing in the deferred sentencing statute should the trial judge decide to sentence a defendant during the extended period.
    5. There was no violation of a defendant’s due process rights at the sentencing where he and his attorney were allowed to respond to the information contained in the presentence report and to bring to the court’s attention any other information believed to be relevant.
    Affirmed.
    1. Criminal Law — Plea of Guilty — Factual Support for Plea.
    A sufficient factual basis for acceptance of a guilty plea is established where, although defendant initially failed to provide an adequate factual basis for the plea, later consultation with counsel revealed to the court several pertinent details previously omitted and defendant’s second account of the crime, which presented an adequate factual basis, was unequivocal and in no way inconsistent with his initial version of the crime.
    2. Criminal Law — Plea of Guilty — Setting Plea Aside — Coercion — Motions — Separate Record — Appeal and Error.
    A defendant who was convicted on his plea of guilty, should move in the trial court to set aside his plea and seek to make a separate record factually supporting a claim of coercion if the record made before he is convicted does not factually support the claim he wishes to urge on appeal; failure to file a proper motion and to make a separate record precludes appellate review.
    3. Criminal Law — Plea of Guilty — Coercion — Voluntariness of Plea — Factual Support for Plea — Free Choice.
    A trial judge is under no duty to make further inquiry as to the voluntariness of a guilty plea where there is no indication on the record that the plea was coerced and where, after providing a factual basis for his plea, defendant stated that he was pleading guilty of his own free choice.

      4. Criminal Law — Sentences — Probation — Deferred Sentences — Summary Hearing — Statutes.
    A person granted probation is entitled to a summary hearing before his probation can be revoked; however, a person convicted of a crime is not entitled to a summary hearing where sentencing has only been delayed; the delayed sentencing statute includes no provision for a hearing should the trial judge decide to sentence a defendant during the extended period (MCL 771.1; MSA 28.1131).
    5. Criminal Law — Sentences — Probation — Probation Revocation — Deferred Sentences — Eligibility for Probation.
    A decision to revoke probation and impose a term of imprisonment involves the imposition of a different sentence to replace the order of probation; however, in the case of a deferred sentencing, no sentence is initially imposed; the sentence is delayed so that defendant can prove to the court his eligibility for probation (MCL 771.1; MSA 28.1131).
    6. Criminal Law — Deferred Sentences — Presentence Reports — Protection from Inaccuracies — Due Process — Court Rules.
    A deferred sentence is based upon all the circumstances of the defendant’s background, including any failure to conform his conduct to conditions imposed in conjunction with the sentence deferral; where a deferred sentence is imposed the defendant is protected from any possible inaccuracies in his presentence report by his right to allocution and his attorney’s right to review the presentence report; no violation of due process rights occur where defendant and his attorney are allowed to respond to the information in the presentence report and to bring to the court’s attention any other information believed to be relevant (GCR 1963, 785.8[2], 785.12).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.

      Green, Moon, Haldy, Gibbs & McCabe, for defendant.

      Before: Cynar, P.J., and R. B. Burns and M. B. Breighner, JJ.

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

   Per Curiam.

On August 1, 1977, defendant pled guilty to the crime of unarmed robbery, a violation of MCL 750.530; MSA 28.798. Sentencing was deferred at that time until June 28, 1978. In the interim defendant was ordered to participate in a drug treatment program and not to leave that program without the express written permission of his probation officer. On May 11, 1978, after leaving the program prematurely, he was sentenced to 7 to 15 years imprisonment. He how appeals as of right.

Defendant’s claim of an insufficient factual basis for his guilty plea is totally without merit. At the plea proceeding, defendant initially failed to provide an adequate factual basis. However, after consultation with counsel several pertinent details of the crime, which had previously been omitted, were revealed to the court. Defendant’s second account of the crime was unequivocal and in no way inconsistent with his initial version of the crime. It also presented an adequate factual basis for the crime of unarmed robbery.

Defendant’s contention that the plea was coerced is similarly without merit. Since no motion to vacate the plea has been made below, this issue is not properly before this Court. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). Moreover, on the record before us, there is no indication that the plea was coerced. After providing the factual basis for the plea defendant stated that he was pleading guilty of his own free choice. The trial judge was under no duty to make any further inquiry as to the voluntariness of the plea.

Defendant’s final contention is that he was denied due process when he was sentenced without prior notice of the charges and a full adversary hearing. He claims that those rights afforded probationers are equally applicable to those subject to deferred sentencing.

MCL 771.1; MSA 28.1131, which permits deferred sentencing, provides in part:

"any case in which the court may place the defendant on probation, it may delay the imposing of sentence of the defendant for a period of not to exceed 1 year for the purpose of giving the defendant an opportunity to prove to the court his eligibility for probation or such other leniency as may be compatible with the ends of justice and the rehabilitation of the defendant. When the sentencing is delayed, the court shall make an order setting forth the reason for the delay, which order shall be entered upon the records of the court. The delay in passing sentence shall not deprive the court of jurisdiction to sentence the defendant at any time during the extended period.”

The statute includes no provision for a hearing, should the judge decide to sentence defendant during the extended period. People v Clyne, 36 Mich App 152, 154; 193 NW2d 399 (1971).

The record indicates that defendant had notice of the sentencing, which was originally scheduled for November 30, 1977, but failed to appear. He appeared for the May 11, 1978, sentencing only after a bench warrant had been issued to compel his appearance. At the sentencing defendant was provided with a copy of his presentence report and both he and his attorney were granted the right of allocution.

Defendant’s attempt to compare this situation to a probation revocation proceeding is unconvincing. In placing a defendant on probation, a judge has in effect imposed a sentence. The sentencing judge has determined to his satisfaction that

"the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant shall suffer the penalty imposed by law * * *.” MCL 771.1; MSA 28.1131.

Thus, the decision to revoke probation and impose a term of imprisonment involves the imposition of a different sentence to replace the order of probation.

In the case of a deferred sentencing, no sentence is initially imposed. Rather, the sentencing is delayed so that defendant can "prove to the court his eligibility for probation”. MCL 771.1; MSA 28.1131. As with any sentencing, the sentence ultimately imposed is based upon all the circumstances of the defendant’s background, including any failure to conform his conduct to conditions imposed in conjunction with the sentence deferral. Defendant is protected from any possible inaccuracies in the presentence report by his right of allocution and has attorney’s right to view the presentence report.

We are satisfied that no violation of defendant’s due process rights occurred in this case. As required by GCR 1963, 785.12, defendant’s attorney was provided with a copy of defendant’s presentence report. As required by GCR 1963, 785.8(2), and GCR 1963, 785.12, defendant and his attorney were allowed to respond to the information in the presentence report and to bring to the court’s attention any other information believed to be relevant. Due process requires nothing more.

Affirmed.


text:
    PEOPLE v DAVIDSON
    Docket No. 77-1917.
    Submitted November 7, 1978, at Detroit.
    Decided January 18, 1979.
    Anthony D. Davidson was convicted of possession of heroin, Wayne Circuit Court, Joseph B. Sullivan, J. The defendant appeals, claiming 1) that the conviction was based on an inference which was based upon another inference, and 2) that the trial court erred by admitting into evidence testimony that when arrested the defendant had money in his possession, including a marked $20 bill. Held:

    1. The second inference which the defendant claims was based upon a first inference was, in actuality, based upon new and different evidence from that upon which the first inference was built and was not based upon the first inference.
    2. The admission of the testimony regarding the money in the defendant’s possession was not error. When knowledge on the part of a defendant is a material element of an offense, such knowledge may be proved by evidence of prior criminal activity.
    Affirmed.
    1. Criminal Law — Evidence — Inferences.
    There is no conflict with the rule that there should be no inference upon an inference where a first inference is based on certain evidence and a second inference is based upon new and different evidence.
    2. Criminal Law — Evidence — Defendant’s Knowledge — Prior
    Criminal Activity — Material Element of Offense.
    A defendant’s knowledge may be proved by evidence of prior criminal activity where knowledge on the part of the defendant is a material element of an offense for which the defendant is being tried.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence § 166.
    Modern Statutes of the rules against basing an inference upon an inference or a presumption upon a presumption. 5 ALR3d 106-135, 158-163.

       29 Am Jur 2d, Evidence §§ 323, 326.

      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.

      Owen J. Galligan, for defendant on appeal.
    Before: Allen, P.J., and R. M. Maher and J. E. Townsend, JJ.

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

   Per Curiam.

Defendant was convicted of possession of heroin, MCL 335.341(4)(a); MSA 18.1070(41)(4)(a), by a Wayne County Circuit Court jury on October 7, 1976. Sentenced to a term of one to four years in prison on February 25, 1977, he appeals as a matter of right pursuant to GCR 1963, 806.1.

Officer Jackson of the Highland Park Police Department executed a search warrant at defendant’s residence on August 12, 1975. Upon entering, Officer Jackson proceeded to a bedroom in the basement where he observed the defendant and two other persons, one male and one female. The second male, Ronald Avant, shared the basement bedroom with the defendant. Avant kept his personal possessions, including clothes, in the basement. Avant was described as being of the same general stature as the defendant, but thinner. Officer Jackson found four packets of heroin in the pocket of an orange plaid sport coat which was hanging, along with approximately 45 other garments, on a pipe in the basement. Jackson testified that he had observed the defendant wearing the same sport coat with matching pants and hat on two occasions prior to the arrest.

Defendant contends that his conviction itself was based on an inference which was based upon another inference. We disagree. Recently the "no inference upon an inference” doctrine as set forth and explained in People v Atley, 392 Mich 298, 314-316; 220 NW2d 465 (1974), was modified or at least interpreted differently in a split opinion of this Court in People v Orsie, 83 Mich App 42, 46-48; 268 NW2d 278 (1978). But as applied to the facts in the instant case it makes no difference whether the Atley or Orsie interpretation is adopted. Under each, the people have sustained their burden of proof. Unlike Atley, where both inferences were based on the same "evidence”, in the instant case new and different evidence viz.— drugs in the jacket pocket—supported the second inference. Furthermore, the first inference (that the jacket was under the exclusive control of the defendant) is supported by more than the mere testimony that the officer had seen defendant wearing the jacket. The officer also testified the defendant was wearing a matching hat, a matching pair of pants and was observed so garbed not on just one but on two occasions. There was also testimony that the second male, Avant, was 20 pounds lighter than defendant. Given so substantial a weight difference it would be unlikely that a jacket becoming Avant would be worn by defendant. A witness listed clothing belonging to Avant, which list excluded the orange plaid sport coat.

We also reject the claim that the trial court erred by admitting into evidence testimony that when arrested defendant had in his possession $362, including a marked $20 bill. When knowledge on the part of the defendant is a material element of the offense, such knowledge may be proved by evidence of prior criminal activity. People v McLean, 230 Mich 423, 426; 202 NW 1005 (1925), People v Nichols, 33 Mich App 63, 67; 189 NW2d 865 (1971), MRE 404(b); 1 Gillespie, Michigan Criminal Law and Procedure (2d Ed) § 448, p 552.

Affirmed.

R. M. Maher, J., concurs in the result only.

       Defendant argues that based on the testimony that the officer had seen defendant wear the jacket, the jury was asked to arrive at its first inference, viz.:-—that the jacket was under the exclusive control of the defendant. Next, the officer testified that four packets of heroin were found in the jacket pocket. The jury was also asked to arrive at the second inference, viz.: because defendant was the owner of the jacket (inference #1) and heroin was found in the pocket, defendant was the one who placed the drug in the jacket pocket.

      In Orsie, supra, at 48, the majority wrote, "In short, we express a preference for abandoning the no inference upon an inference terminology because we believe it to be misleading and uncertain of meaning. There is nothing inherently wrong or erroneous in basing a valid inference upon a valid inference. In so indicating, we do not consider that we are acting contrary to precedents established by the Supreme Court which are, of course, binding; on the contrary, we are consistent with the substance of those decisions.” In his dissenting opinion, R. M. Maher, J., disagreed that the "no inference upon an inference rule” should be abandoned.


author: J. E. Townsend, J. Allen, P.J.,

text:
    PEOPLE v HARRIS PEOPLE v BUCHANAN
    Docket Nos. 77-4874, 77-4937.
    Submitted November 9, 1978, at Detroit.
    Decided January 23, 1979.
    Leave to appeal applied for.
    Defendants, Curtis Harris and Ulysses Buchanan, were convicted, on their pleas of nolo contendere, of armed robbery and felony-firearm in the Recorder’s Court of Detroit, Samuel H. Olsen, J. Defendants appeal, raising several issues. Held:

    1. The felony-firearm statute is an act complete within itself, and as such it does not violate the constitutional proscription against revision of a statute by reference to its title only.
    2. Both the Michigan and Federal constitutions have been consistently held to prohibit not only multiple prosecutions for the same offense but also multiple punishments; conviction of both felony-firearm and armed robbery violates the constitutional prohibitions against double jeopardy.
    Affirmed as to the armed robbery conviction, reversed as to the felony-firearm conviction and sentence modified.
    Allen, P.J., dissented. He would hold that, while the conviction of felony-firearm is inoperable, that portion of the statute which sets forth an additional mandatory term of imprisonment for the conviction of the underlying felony when a firearm is used in its perpetration or attempted perpetration is valid and the sentence should be affirmed.
    Opinion of the Court
    1. Constitutional Law — Criminal Law — Statutes — Felony-Firearm — Title-Object Clause.
    The felony-firearm statute is an act complete within itself, and as such it does not violate the constitutional proscription against revision of a statute by reference to its title only (Const 1963, art 4, § 25, MCL 750.227b; MSA 28.424[2]).

      References for Points in Headnotes

       73 Am Jur 2d, Statutes § 137.

       21 Am Jur 2d, Criminal Law § 166.
    Limitations under double jeopardy clause of Fifth Amendment upon state criminal prosecutions—Supreme Court cases. 25 L Ed 2d 968.

       21 Am Jur 2d, Criminal Law § 182.

       21 Am Jur 2d, Criminal Law §§ 188, 546.

      2. Criminal Law — Constitutional Law — Double Jeopardy
    Clause — Multiple Prosecutions — Multiple Punishments. Both the Michigan and Federal constitutions have been consistently held to prohibit not only multiple prosecutions for the same offense but also multiple punishments (US Const, Am V, Const 1963, art I, § 15).
    3. Criminal Law — Constitutional Law — Double Jeopardy — Armed Robbery — Felony-Firearm.
    A double conviction and a double punishment based upon the same occurrence violates the constitutional prohibitions against double jeopardy; conviction of both felony-firearm and armed robbery violates the constitutional prohibitions against double jeopardy (US Const, Am V, Const 1963, art I, § 15).
    Dissent by Allen, P. J.
    4. Criminal Law — Felony-Firearm — Separate Offenses — Additional Sentence — Statute.

      The portion of the felony-ñrearm statute which creates a separate offense is inoperable, but that portion of the statute which sets forth an additional mandatory term of imprisonment for the conviction for an underlying felony when a ñrearm is used in its perpetration or attempted perpetration is valid (MCL 750.227[b]; MSA 28.424[2]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor’s Repeat Offenders Bureau, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.

      Bruce R. Saperstein, for defendants.
    Before: Allen, P.J., and R. M. Maher and J. E. Townsend, JJ.

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

   J. E. Townsend, J.

Defendants appeal from their convictions on pleas of nolo contendere to armed robbery, MCL 750.529; MSA 28.797, and felony firearm, MCL 750.227b; MSA 28.424(2), violations.

On January 24, 1977, defendants and another person took the pants and a wallet from a man at an apartment located on East Jefferson in Detroit. Neither defendant remembered a weapon and each denied that they carried one. The complaining witness testified that Buchanan had a gun.

Defendants raise five issues on appeal.

I.

Does the felony-firearm statute violate the constitutional prohibition against revising, altering or amending other statutes by reference to title only?

This issue has been decided contrary to defendants’ claim in numerous recent cases, e.g. People v Walter Johnson, 85 Mich App 654, 660; 272 NW2d 605 (1978); People v Gary Hughes, 85 Mich App 674, 680-681; 272 NW2d 567 (1978).

II.

Does the felony-firearm statute violate the constitutional prohibition against double jeopardy?

The felony-firearm statute, MCL 750.227b; MSA 28.424(2) provides in part as follows:

"A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony * * * is guilty of a felony * * *. Upon a second conviction under this section * * *. Upon a third or subsequent conviction under this section * *

The above language is language commonly used to create a separate felony offense. Such statute is clear and not ambiguous on its face and by its terms does create a separate felony offense. A single conviction under the felony firearms statute is valid and enforceable. There being no ambiguity and no patent invalidity, no interpretation is necessary or permissible. People v Carey, 382 Mich 285, 292-293; 170 NW2d 145 (1969).

A double jeopardy problem arises only when a person is convicted both of the underlying felony and felony-firearm. By definition, the underlying felony is a necessarily included offense of the felony-firearm offense. One cannot be convicted both of the greater offense and of a necessarily included offense arising out of the same facts. The landmark United States Supreme Court case adopting such principle is Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932), repeatedly cited in later United States Supreme Court cases including Simpson v United States, 435 US 6, 11; 98 S Ct 909; 55 L Ed 2d 70 (1978). Such principle likewise has been adopted by the Supreme Court of the State of Michigan in the case of People v Martin, 398 Mich 303, 309; 247 NW2d 303 (1976) and People v Stewart (On Rehearing), 400 Mich 540, 548-549; 256 NW2d 31 (1977), as well as by other panels of the Michigan Court of Appeals. We cite with approval the case of Wayne County Prosecutor v Recorders Court Judge, 85 Mich App 727; 272 NW2d 587 (1978).

Upon the same principle, one cannot be convicted of first-degree murder and second-degree murder based on the same occurrence and victim, or of armed robbery and unarmed robbery, based on the same occurrence and victim, or of felony murder and first-degree murder (People v Hall, 83 Mich App 632, 637-638; 269 NW2d 476 [1978]). The statute in question in this case is no more invalid than the statutes which create the above-mentioned offenses. However, application of such statute to accomplish a double conviction and a double punishment based upon the same occurrence violates constitutional prohibitions against double jeopardy.

Only one of the two convictions must fall. We reverse the felony-firearm conviction. The armed robbery conviction and sentence are affirmed.

III.

Did the trial judge fail to obtain a sufficient factual basis for defendant Harris’s plea to felony-firearm?

Because we reversed the felony firearm conviction based upon Issue II, we need not address Issue III.

IV.

Did the trial judge fail to state his reasons for believing that the interests of defendants and the proper administration of justice permitted acceptance of the nolo pleas?

A careful review of the transcript convinces us that the court properly met the requirements of GCR 785.7(3)(b)(i), that he state on the record "why a plea of nolo contendere is appropriate” and had appropriate, adequate reason to accept the nolo contendere pleas of defendants. Such defendants were either unable or unwilling to relate the details of the crime. People v Seaman, 75 Mich App 546, 550; 255 NW2d 680 (1977); Guilty Plea Cases, 395 Mich 96, 134; 235 NW2d 132 (1975).

V.

Did the trial judge improperly fail to obtain updated presentence reports for the defendants?

Defendants were in confinement during the 6-1/2 month period in question. Defense counsel offered no additions to the original presentence reports. Updating such reports would have been a mere formality. People v Potts, 46 Mich App 538, 547-548; 208 NW2d 583 (1973).

The felony-firearm conviction is reversed and sentence modified. The armed robbery conviction and sentence are affirmed.

R. M. Maher, J., concurred.

Allen, P.J.,

(dissenting). I agree with the majority opinion as to all issues except issue II. For the reasons stated in People v McDowell, 85 Mich App 697; 272 NW2d 576 (1978), and further stated in People v Burton, 87 Mich App 598; 274 NW2d 849 (1978), I disagree that the sentence should be reversed. Those opinions found that the felony-firearm statute sets forth a mandatory minimum term of incarceration for the underlying offense of armed robbery. So construed, the conviction for the felony-firearm offense becomes inoperable but the conviction for armed robbery and the total sentence imposed should be affirmed.


author: Bashara, P.J. Bronson, J.

text:
    PEOPLE v McCRACKEN PEOPLE v O’CONNELL
    Docket Nos. 77-367, 77-1545.
    Submitted June 6, 1978, at Detroit.
    Decided February 5, 1979.
    James L. McCracken and James D. O’Connell were both convicted of conspiracy to break and enter a dwelling house with intent to commit larceny therein and of receiving and concealing stolen property over the value of $100, Wayne Circuit Court, Michael L. Stacey, J. Both defendants appeal, raising several allegations of error. Held:

      References for Points in Headnotes

       75 Am Jur 2d, Trial §§ 350, 754, 756, 758, 781.

       75 Am Jur 2d, Trial §§ 802, 809.
    81 Am Jur 2d, Witnesses § 54 et seq.

    Preventing or limiting cross-examination of prosecution’s witness as to his motive for testifying. 62 ALR2d 624-653.

       5 Am Jur 2d, Appeal and Error §§ 553, 624.
    75 Am Jur 2d, Trial §§ 166, 263.
    Counsel’s appeal in criminal case to racial, national, or religious prejudice as grounds for mistrial, new trial, or reversal. 45 ALR2d 314, 315.
    Propriety and effect of prosecuting attorney’s argument to jury indicating his belief or knowledge as to quilt of accused. 50 ALR2d 797-802.

       21 Am Jur 2d, Criminal Law § 331.
    Accused’s right to inspection of minutes of state grand jury. 20 ALR3d 35-40, 42-44, 46.

       5 Am Jur 2d, Arrest § 33.
    16 Am Jur 2d, Constitutional Law §§ 545, 549.

       5 Am Jur 2d, Appeal and Error §§ 838, 885.

       16 Am Jur 2d, Conspiracy § 9.
    21 Am Jur 2d, Criminal Law §§ 81, 82, 123.
    75 Am Jur 2d, Trial §§ 369, 424, 751.

       16 Am Jur 2d, Conspiracy § 36.

       16 Am Jur 2d, Conspiracy § 15.

       66 Am Jur 2d, Receiving Stolen Property §§ 1, 3-5, 7, 9, 10, 23, 25, 26.
    Sufficiency of description of stolen property in indictment or information for receiving it. 99 ALR2d 815-823, 825, 826, 838-841.

       5 Am Jur 2d, Appeal and Error §§ 831, 838.

       5 Am Jur 2d, Appeal and Error § 810.

      1. A jury instruction on intent which stated that the jury could hold a person responsible for the consequences of his acts and that intent would be presumed from the doing of a wrongful act did not impermissibly shift the burden of proof from the prosecution to the defense where no error is shown in the instructions as a whole.
    2. It was not reversible error for the trial court to sustain an objection to a question as to whether a witness who had been granted immunity from prosecution was aware of the maximum prison sentence he could have received had he not been granted immunity.
    3. No manifest injustice or reversible error resulted from the conduct of the prosecutor during cross-examination and closing argument.
    4. Failure of the prosecution to provide defendant McCracken with a full transcript of a grand jury proceeding used to impeach the defendant was not error where defense counsel was provided with that portion of the transcript actually used, the grand jury proceeding was on a collateral matter, and the material was used strictly for impeachment.
    5. Defendant McCracken was not prejudiced by and no denial of due process resulted from a 540-day interval between the commission of the offense and his arrest.
    6. The evidence against defendant O’Connell was not sufficient to justify an inference that he was guilty of conspiracy to break and enter a dwelling house.
    7. Some evidence was presented on every material element of the crime of receiving and concealing stolen property, and it was for the jury, not the Court of Appeals, to weigh that evidence.
    Affirmed as to defendant McCracken. Defendant O’Connell’s conviction of receiving and concealing stolen property is affirmed, but his conviction of conspiracy to break and enter is reversed.
    Bronson, J., concurred separately to emphasize that the trial court’s erroneous instruction on intent had no bearing on the case because the only contested issue was whether the defendants had actually committed the offenses, and, therefore, the instruction did not impair in any manner a defense presented by the defendants. The error was harmless.

      Opinion op the Court
    1. Criminal Law — Instructions to Jury — Intent — Burden of Proof.
    An instruction to a jury on intent which stated that the jury was warranted in holding a party responsible for the natural, probable and legitimate consequences of his acts and that intent may be presumed from the doing of a wrongful, fraudulent or illegal,act did not impermissibly shift the burden of proof from the prosecution to the defendant where no error is shown in the instructions when viewed as a whole.
    2. Witnesses — Criminal Law — Immunity from Prosecution.
    The sustaining of an objection by a trial court to a question as to whether a witness was aware of the maximum prison term he could have received if he had not been granted immunity does not constitute reversible error, because where a witness has been granted immunity in exchange for his agreement to testify it is necessary only that the court make known to the jury that a grant of immunity has been made.
    3. Appeal and Error — Criminal Law — Prosecutor’s Remarks — Failure to Object — Prejudice.
    Failure of a defendant to object at trial to allegedly prejudicial remarks of the prosecutor bars appellate review unless the prejudice is so egregious that it cannot be cured by judicial instruction.
    4. Criminal Law — Impeachment — Grand Jury Proceedings — Collateral Matter.
    Failure of the prosecution to provide a defendant with a full transcript of grand jury proceedings used to impeach the defendant did not result in reversible error where the prosecutor used only 1-1/2 pages of the transcript, which were made available to the defendant and an opportunity to view the transcript in its entirety was given defendant, where the grand jury proceeding pertained to a collateral matter, and where the transcript material was used strictly for impeachment purposes.
    5. Arrest — Criminal Law — Delay in Arrest — Constitutional Law — Due Process — Prejudice.
    A defendant has no constitutional right to be arrested; a lengthy delay between the commission of an offense and a defendant’s arrest does not violate the defendant’s right to due process of law where no prejudice to the defendant is shown.

      6. Criminal Law — Evidence — Sufficiency of Evidence — Elements of Offense — Jury — Verdicts.
    The evidence must be viewed in the light most favorable to the prosecution where a defendant has alleged that the evidence was insufficient to prove beyond a reasonable doubt his guilt of the crime charged, and a jury verdict of guilty will not be overturned unless there is an absence of any direct or circumstantial evidence to prove an essential element of the crime.
    7. Conspiracy — Intent to Conspire — Substantive Offense.
    An intent to conspire and an intent to commit a substantive offense must be shown in order to convict a defendant of conspiracy.
    8. Conspiracy — Facts — Circumstantial Evidence — Inferences.
    The facts, even if circumstantial in nature, must warrant at least a fair inference of the elements to be established in order to make out a case of conspiracy.
    9. Conspiracy — Parties to Conspiracy.
    A defendant, to become a party to a conspiracy, need not be a party to the original agreement, know all the co-conspirators, or participate in the full scope of the conspiracy; if he joins after the formation, or aids with an understanding of the purpose, he becomes a party to the conspiracy.
    10. Receiving Stolen Goods — Concealment — Elements of Offense.
    The elements of the crime of receiving and concealing stolen property are: (1) that the property was stolen, (2) the value of the property, (3) the receiving, possession or concealment of the property by the defendant with the knowledge that the property had been stolen, (4) the identity of the property as being that previously stolen, and (5) the guilty constructive or actual knowledge of the defendant that the property received or concealed had been stolen.
    11. Appeal and Error — Criminal Law — Evidence — Weight of . Evidence — Jury Question.
    It is for the jury, not the Court of Appeals, to weigh the evidence where some evidence was presented on every material element of a charged crime.
    Concurrence by Bronson, J.
    12. Criminal Law — Instructions to Jury — Intent — Harmless Error.

      An instruction to the jury that wrongful acts, knowingly or .
      intentionally committed, can neither be justiñed nor excused on the ground of innocent intent was harmless error where the sole contested issue in the case was whether the defendants actually committed the offense with which they were charged; the instruction did not impair in any manner a defense presented by the defendants and, although erroneous, had no bearing on the case.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, (in O'Connell) and Timothy C. Scallen (in McCracken), Assistants Prosecuting Attorney, for the people

      Constance E. Cumbey, for defendant McCracken on appeal.

      Carl Ziemba, for defendant O’Connell on appeal.
    Before: Bashara, P.J., and Bronson and C. W. Simon, Jr., JJ.

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

   Bashara, P.J.

Defendants raise 14 issues in their appeals from jury convictions of conspiracy to break and enter a dwelling house with intent to commit larceny therein, MCL 750.157a, 750.110; MSA 28.354(1), 28.305, and of receiving and concealing stolen property over the value of $100, MCL 750.535; MSA 28.803.

The charges in this case arose from the burglary of the home of a Ferndale coin collector. At trial, the three participants in the burglary, Michael Thomas, Ron Oesterling, and Joel Reed, testified pursuant to a grant of transactional immunity. In brief, their testimony indicated that defendant McCracken became involved in the planning of the . burglary and that he indicated he could get rid of any coins stolen through defendant O’Connell.

After the burglary, the coins were put into a briefcase and taken at a later date by McCracken to O’Connell’s office and left there.

Both defendants denied any involvement in the burglary or with the stolen coins.

At the outset, we wish to observe that this was a lengthy and complex trial, fraught with difficulties. The trial judge is to be commended for his excellent demeanor and control of the unusual circumstances, at times exacerbated by the actions of perhaps overly zealous counsel.

Defendants initially claim that the jury instruction on intent impermissibly shifted the burden of proof from the prosecution to the defense. The trial judge instructed the jury as follows:

"The question of intent is one that is hard to establish directly because grown persons do not always disclose the object they have in view in any acts in which they may indulge, and you have to gather the intent from the character of the act, the circumstances surrounding it and from conduct of a like character which may appear as tending to aid you in finding and discovering it. But in connection with all this, unless the testimony satisfied you of something else you are warranted in holding a party responsible for the natural, probable and legitimate consequences of his acts. The intent may be presumed from the doing of a wrongful, fraudulent or illegal act. But this inference or presumption is not necessarily conclusive. The law presumes that every man intends the legitimate consequences of his own acts. Wrongful acts, knowingly or intentionally committed can neither be justified nor excused on the ground of innocent intent.”

This instruction has been considered by the Court many times. A similar instruction was approved in People v Ross, 69 Mich App 705; 245 NW2d 335 (1976), and in People v Adams, 48 Mich App 595; 210 NW2d 888 (1973).

Defendants rely on People v Wright, 78 Mich App 246; 259 NW2d 443 (1977), which relied on People v Smith, 67 Mich App 145; 240 NW2d 475 (1976), to proscribe a like instruction. However, it is the opinion of this panel that Wright’s reliance on Smith was misplaced. Reversal in Smith was predicated on an error in the self-defense instruction. In fact, the intent instruction was approved by two of the three judges on the Smith panel.

Defendants objected to the instruction as given. Nonetheless, under any standard, when reviewed as a whole, we find no reversible error in this regard. People v Townes, 391 Mich 578; 218 NW2d 136 (1974), People v Ross, supra.

The other claims of error in jury instructions are raised here for the first time. Our review reveals no manifest injustice or prejudicial error.

Defendants also argue that they were deprived of fundamental fairness by rulings of the trial court, and prosecutorial misconduct during cross-examination and closing argument.

We find that sustaining an objection to a question as to whether a witness was aware of the maximum prison term he could have received if he had not been granted immunity does not constitute reversible error. It is only required that the court make known to the jury that a grant of immunity has been made. People v Love, 43 Mich App 608; 204 NW2d 714 (1972).

Just as jury instructions are to be read as a whole, so must the remarks of the prosecutor. Failure to object bars appellate review unless the prejudice is so egregious that it cannot be cured by judicial instruction. People v Hernandez, 80 Mich App 465; 264 NW2d 343 (1978).

Our review of the record convinces us that no manifest injustice or reversible error result from prosecutorial conduct. People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972), People v Ellis, 62 Mich App 109, 113; 233 NW2d 205 (1975), People v Foster, 77 Mich App 604, 611; 259 NW2d 153 (1977).

The fact that the prosecutor misstated a fact regarding one of the witnesses does not, in light of this record, constitute reversible error. We are mindful of the oft-quoted wisdom of Justice North in People v Burnstein, 261 Mich 534, 538; 246 NW 217 (1933), where in it was stated:

"* * * in the haste and heat of a trial it is humanly impossible to obtain absolute perfection, and of necessity some allowance must be made in determining whether impromptu remarks are to be held prejudicial. Statements should not be held prejudicial if they are made in good faith, and, when fairly construed, they do not appear to have been such as influenced the jury adversely to the rights of the accused.”

Defendant McCracken next argues that it was reversible error for the prosecution to fail to provide him with a full transcript of grand jury proceedings used to impeach him. The record reveals that the prosecutor referred to only a page and a half of the transcript of the grand jury proceedings on cross-examination. Defense counsel was provided with that portion of the transcript actually used, and was permitted to view the transcript in its entirety.

Defendant relies on People v Karoll, 315 Mich 423; 24 NW2d 167 (1946), and People v Bellanca, 386 Mich 708; 194 NW2d 863 (1972), in support of his position. However, both of those cases are distinguishable from the facts of the case at bar in that the cases involved arose from grand jury proceedings. In the instant case, the grand jury proceeding pertained to a collateral matter. The few pages of transcript were used strictly for impeachment purposes. In view of these circumstances, we find no reversible error.

Defendant McCracken also argues the interval of 540 days from the alleged commission of the offense until arrest was a delay sufficient to deprive him of due process. Defendant relies on People v Hernandez, 15 Mich App 141; 170 NW2d 851 (1968). However, People v Noble, 18 Mich App 300; 170 NW2d 916 (1969), held there was no constitutional right to be arrested.

We need not dwell unduly on this contention. Suffice it to say that even were we to accept the reasoning of Hernandez, supra, a denial of due process was not evident in the matter before us as we find no prejudice to the defendant. See People v McNeal, 72 Mich App 507; 250 NW2d 110 (1976).

The final issue, raised by defendant O’Connell, is whether the evidence was sufficient to prove beyond a reasonable doubt his guilt of the crimes charged.

In examining such a claim, the evidence must be viewed in the light most favorable to the prosecution. A jury verdict will not be overturned unless there is an absence of any direct or circumstantial evidence to prove an essential element of the crime charged. People v Flinnon, 78 Mich App 380, 384; 260 NW2d 106 (1977), People v Milton, 81 Mich App 515, 517; 265 NW2d 397 (1978).

Defendant O’Connell was charged with conspiracy to break and enter and with receiving and concealing stolen property. The gist of conspiracy is an unlawful agreement. There must be a showing of an intent to conspire and an intent to commit the substantive offense. People v Atley, 392 Mich 298; 220 NW2d 465 (1974).

However, even if the facts are circumstantial in nature, they must warrant at least a fair inference of the elements to be established. People v Miller, 49 Mich App 53, 59; 211 NW2d 242 (1973). Charges of conspiracy cannot be made out by piling inference upon inference. People v Atley, supra.

Defendant need not be a party to the original agreement, know all the co-conspirators, or participate in the full scope of the conspiracy. If he joins after the formation, or aids with an understanding of its purpose, he becomes a party to the conspiracy, e.g., People v Scotts, 80 Mich App 1; 263 NW2d 272 (1977).

We have examined in detail the voluminous record in this case. The only evidence which even remotely touches upon knowledge or an agreement between defendant O’Connell and others to perpetrate the burglary was the conversation between defendants O’Connell and McCracken allegedly overheard by witness Thomas. His testimony related a conversation between O’Connell and Mc-Cracken which consisted only of a general discussion of coins and their value. He testified that there was no discourse about the planned burglary, nor was the origin of any coins discussed. We cannot conclude that this evidence, standing alone, is sufficient to justify an inference that defendant O’Connell was guilty of conspiracy to break and enter a dwelling house. See People v Sobczak, 344 Mich 465, 469; 73 NW2d 921 (1955).

Defendant O’Connell’s conviction of conspiracy to break and enter must therefore be set aside, as there simply was no evidence to support even an inference in that regard.

Also challenged is the sufficiency of the evidence regarding the crime of receiving and concealing stolen property.

The elements of the crime, which must be evidentially proven, are: (1) that the property was stolen; (2) the value of the property; (3) the receiving, possession or concealment of such property by the defendant with the knowledge of the defendant that the property had been stolen; (4) the identity of the property as being that previously stolen; and (5) the guilty constructive or actual knowledge of the defendant that the property received or concealed had been stolen. See People v Martinovich, 18 Mich App 253, 257; 170 NW2d 899 (1969).

Although the evidence to support this charge is at best sketchy, and often conflicting, all three of the burglary participants testified that they had been told a lawyer could get rid of the coins. All three of them claimed seeing the coins put into the briefcase that was later taken into O’Connell’s office and left there.

We find some evidence was presented on every material element of the crime. It is for the jury, not the Court, to weigh this evidence. People v Eastway, 67 Mich App 464, 469; 241 NW2d 249 (1976).

Affirmed as to defendant McCracken.

Defendant O’Connell’s conviction of receiving and concealing stolen property is affirmed. His conviction of conspiracy to break and enter is reversed.

C. W. Simon, Jr., J., concurred.

Bronson, J.

(concurring). I concur in Judge Bashara’s thorough and well-written opinion. However, I write separately to amplify on one point which I feel needs clarification.

The concluding sentence of the instruction given in the present case, "[wrongful acts, knowingly or intentionally committed can neither be justified or excused on the ground of innocent intent”, was labeled as erroneous by the Michigan Supreme Court in People v Holcomb, 395 Mich 326; 235 NW2d 343 (1975). In Holcomb defendant admitted committing the "criminal” act, i.e., taking the money from the victim by force. He denied, however, that he intended to rob the victim. Instead, he insisted that he was merely recovering money that he thought was rightfully his. Since defendant admitted the act, the only contested issue in the case was his intent. By instructing the jury that wrongful acts cannot be justified by an innocent intent the trial court completely vitiated defendant’s sole defense. In effect, the instruction told the jury that'even if it believed defendant’s testimony it must nevertheless convict him because his innocent intent was irrelevant once he admitted committing the act.

The present case, however, differs significantly from Holcomb. Defendants’ intent in taking the coins was not a contested issue. Defendants did not claim that their intent in taking the coins was innocent, but rather that they did not take the coins at all. The sole contested issue in the case was whether defendants actually committed the act. Thus, the instruction did not vitiate nor impair in any manner a defense presented by defendants. It is clear that once the jury concluded that defendants committed the acts, it logically inferred that they possessed the requisite intent. It is equally clear under the facts of this case that once the jury found that defendants committed the criminal acts, there was no evidence nor logical reason from which any reasonable person could have drawn an inference of innocent intent. Therefore, the instruction, although erroneous, had absolutely no bearing on the case.

Taking the instructions as a whole and reviewing them in relation to the facts of this case, and the nature of the defenses raised, it becomes apparent that the inclusion of the one erroneous sentence in the court’s otherwise proper set of instructions would not have affected the outcome of the case. The error was therefore harmless beyond a reasonable doubt.

      A person who in good faith believes that he is taking property to which he is rightfully entitled does not have the felonious intent necessary for robbery or larceny. People v Henry, 202 Mich 450, 455; 168 NW 534 (1918).

       A jury may properly infer a defendant’s intent from the circumstances surrounding the activity in question. See People v Phillips, 385 Mich 30, 37; 187 NW2d 211 (1971), LaFave & Scott, Criminal Law, § 28, pp 202-203.


author: M. F. Cavanagh, J. D. E. Holbrook, P.J.

text:
    POOLE v BOARD OF CANVASSERS OF WAYNE COUNTY
    Docket No. 77-429.
    Submitted February 14, 1978, at Detroit.
    Decided February 5, 1979.
    Plaintiff, James E. Poole, was a candidate for trustee of Canton Township in the 1976 general election in which there were a substantial number of absentee ballots cast. He lost by 11 votes and petitioned for a recount in the machine and counting-board precincts. Defendant Wayne County Board of Canvassers determined that in the counting-board precinct where the absentee ballots were tallied the ballot box containing the absentee ballot bag was properly sealed but that the ballot bag was not. It further determined that there were 15 more names on the poll list than ballots found in the box and that the list contained no indication that any absentee ballots had not been returned. It subsequently appeared that 15 precinct workers had signed the poll list and voted directly on the machines used to count the absentee ballots. The board denied plaintiff’s request for a recount of that precinct. Plaintiff filed a mandamus action in the Wayne Circuit Court against the Board of Canvassers of Wayne County, the State of Michigan, and the members of the Board of Canvassers to compel a recount of the precinct. The court, Joseph B. Sullivan, J., denied mandamus. Plaintiff appeals. Held:

    The statute governing recounts of absentee ballots requires, for a recount to be permitted, that either a) both the ballot bag and ballot box be found sealed with a seal of record, or b) either the ballot box or ballot bag be found so sealed and the number of names on the poll list correspond with the number of ballots; the statute applies to absentee ballots tallied in counting board precincts as well as in absent voter counting places for the purpose of preserving the integrity and the verity of the ballots in the event of a recount.

      References for Points in Headnotes

       26 Am Jur 2d, Elections §§ 355-357.
    Requirements as to manner of voting and of conducting elections. 97 ALR2d 234.
    Irregularities in counting or canvassing. 97 ALR2d 331.

       26 Am Jur 2d, Elections §§ 228, 229.
    Requirements as to manner of voting and of conducting elections. 97 ALR2d 234.

      Affirmed.
    D. E. Holbrook, P.J., dissented. He would hold that the words "election precinct” in the statute authorizing an election precinct inspector in a township to vote in the "election precinct” where he acts as an election officer regardless of his place of residence signifies a geographic area and does not include absent voter counting places; votes of election officers cast on an absent voter counting machine are improperly cast and the names of such voters should be struck from the poll list. Therefore a recount should be ordered of all ballots found in the absentee ballot box.
    Opinion of the Court
    1. Elections — Recounts — Absentee Ballots — Requirements for Recounts — Statutes.
    The statute governing recounts of absentee ballots requires, for a recount to be permitted, that either a) both the ballot bag and ballot box be found sealed with a seal of record, or b) either the ballot box or ballot bag be found so sealed and the number of names on the poll list correspond with the number of ballots; the statute applies to absentee ballots tallied in counting board precincts as well as in absent voter counting places for the purpose of preserving the integrity and the verity of the ballots in the event of a recount (MCL 168.871[1]; MSA 6.1871[1]).
    Dissent by D. E. Holbrook, P.J.
    2. Elections — Election Precinct — Election Officers — Proper Place of Voting.

      The words "election precinct’’ in the statute authorizing an election precinct inspector in a township to vote in the "election precinct’’ where he acts as an election officer regardless of his place of residence signifies a geographic area and does not include absent voter counting places; votes of election officers cast on an absent voter counting machine are improperly cast (MCL 168.681; MSA 6.1681).

      Peter B. Bundarin, for plaintiff.

      Aloysius J. Suchy, Corporation Counsel, and W. B. McIntyre, Jr., Assistant Corporation Counsel, for defendants.

      Before: D. E. Holbrook, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   M. F. Cavanagh, J.

Plaintiff, James E. Poole, was a certified candidate of the Republican Party for the position of trustee of Canton Township in the November, 1976, general election. As a result of a write-in campaign for three other candidates, a substantial number of voters chose to vote absentee. These votes were tabulated pursuant to MCL 168.792a; MSA 6.1792(1). Plaintiff lost to another candidate by 11 votes.

Due to widespread allegations of errors in tabulating the votes, plaintiff petitioned for a recount of the machine precincts and of the counting-board precinct. In respect to the latter, where absentee ballots were tallied, defendant Wayne County Board of Canvassers determined that, although the ballot boxes containing ballot bags with absentee ballots inserted were properly sealed, the ballot bags were not. It also found that there were 15 more names on the poll list than ballots found in the ballot box; the poll list contained no notations to indicate that any absentee ballots had not been returned. It subsequently appeared that 15 precinct workers had signed the poll list and voted directly on the machines used to count the absentee ballots. This explanation exactly accounted for the discrepancy between the poll list and the number of ballots. Nevertheless, defendant denied plaintiff’s request for a recount based on its reading of MCL 168.871(1); MSA 6.1871(1), and Ryan v Wayne County Board of Canvassers, 396 Mich 213;

240 NW2d 236 (1976). Plaintiff petitioned for a writ of mandamus to compel a recount; the trial court upheld the defendant board’s decision and denied the petition. Plaintiff appeals from that denial.

MCL 168.871(1); MSA 6.1871(1), establishes several prerequisites to a recount of paper ballots. The Michigan Supreme Court in Ryan, supra, considered the terms of the section in the context of a recount of absentee ballots tallied in an absent voter counting place. In addition to reaffirming their mandatory nature, the Court summarized the procedures as follows: a recount will be permitted if (1) both the ballot bag and ballot box are sealed with a seal of record; or, (2) either the ballot box or ballot bag is so sealed and the number of names on the poll list corresponds with the number of ballots inside. Ryan, supra, p 218. In the instant case, only the ballot box was sealed with a seal of record. The number of names on the poll list, however, did not correspond with the number of ballots.

Despite the explicit language in Ryan, supra, and virtually identical rules for recounts promulgated by the State Board of Canvassers, plaintiff argues that the Legislature intended to exempt recounts of absentee ballots tallied in counting board precincts from the requirements of MCL 168.871(1); MSA 6.1871(1). He relies most heavily on the language contained in the last paragraph of MCL 168.871(2)(c); MSA 6.1871(2)(c):

"Nothing in this section shall prevent the recounting of absent voters ballots tallied in a counting board precinct or in a precinct in which one or more machines are recountable if the ballots are securely packaged and sealed.”

Plaintiff argues that this section precludes the mandatory application of the recount requirements for paper ballots. The only precaution which need be observed to allow the recount of absentee ballots apparently is the secure packaging and sealing of the ballots, either in the ballot box or ballot bag. In the instant case, the ballots were found to be securely sealed within the ballot box, and thus, it is argued, may be recounted. Plaintiff further points to other provisions of the election laws that indicate legislative intent to tolerate possible discrepancies between the number of names on the poll list and the number of absentee ballots returned and that only require processing of absentee ballots in "as nearly as possible the same manner” as paper ballots. Consequently, variations from the directives of MCL 168.871(1); MSA 6.1871(1), should not bar a recount in the case at bar.

Where ambiguities exist in a statute or a statute is susceptible of two or more meanings, courts may construe the statute in a reasonable fashion considering the purpose of the statute and the object to be accomplished. King v Director of the Midland County Department of Social Services, 73 Mich App 253, 258; 251 NW2d 270 (1977), Royal Oak School District v Schulman, 68 Mich App 589; 243 NW2d 673 (1976).

We are not persuaded by plaintiffs argument that the Legislature did not intend to subject recounts of absentee ballots to the same strictures placed on recounts of paper ballots.

MCL 168.792a; MSA 6.1792(1), cited by plaintiff to support his argument that the Legislature intended different procedures to apply to recounts of absentee ballots, also states that all laws applicable to paper ballot precincts apply equally to absentee ballots. Furthermore, in 1970 the Legislature amended the provisions concerning the processing of already-tallied absentee votes to read:

"Voted absent voters’ ballots shall be placed in a ballot box and the ballot bag and ballot box shall be sealed in the manner provided by law for paper ballot precincts.” MCL 168.792a(7); MSA 6.1792(1X7).

Obviously, the Legislature intended that the same precautions be taken to preserve the integrity of voted absentee ballots and paper ballots alike. This directive and the more general language in MCL 168.792a; MSA 6.1792(1), together sweep broadly enough to include the recount requirements of MCL 168.871(1); MSA 6.1871(1), including the matching of poll list to number of ballots, within those provisions of the general election law applicable to absentee ballots tallied in a counting board precinct.

To adopt the construction of the statute urged by plaintiff would only create greater uncertainty in recounts, a result certainly not intended by the Legislature. Where either the ballot bag or ballot box is not properly sealed, there is a risk that some discrepancy in the number of ballots cast may exist. The poll list, in such cases, provides a source of independent verification to insure that no ballots have been inserted or withdrawn prior to recount. Without the evidence provided by the list, there is no method of assuring, in a recount where the ballot bag or box have not been correctly sealed, that the ballots will present "the identical verity they bore when cast”. Ryan, supra, p 217.

Plaintiffs reliance on the last paragraph of MCL 168.871(2); MSA 6.1871(2), is also misplaced. This section, including the language upon which plaintiff relies, was added in its entirety to the text of the act in 1965. Its evident purpose was to delineate, for the first time, the circumstances under which a recount of a machine would be permitted or prohibited. At the same time, it was intended to clarify the situations where a recount of absentee ballots tallied on a voting machine was permissible, even though the machine itself, by the terms of the section, could not be recounted. The word "section”, therefore, although capable of being read as referring to MCL 168.871(1); MSA 6.1871(1), as well, is more logically read as referring to the amendment alone, and not to the recount provisions in the preceding section.

Nor does the qualificatory language "if * * * securely packaged and sealed” in MCL 168.871(2)(c); MSA 6.1871(2)(c), constitute the only condition precedent to a recount of absentee ballots, as plaintiff argues. Normally "qualifying words and phrases refer solely to the last antecedent where no contrary intention appears”. Kizer v Livingston County Board of Commissioners, 38 Mich App 239, 252; 195 NW2d 884 (1972), Northville Coach Line, Inc v Detroit, 379 Mich 317, 331; 150 NW2d 772 (1967). In the section under consideration here, the last antecedent to which the qualifying phrase can refer is to absentee ballots tallied "in a precinct in which one or more machines are recountable”. Application of this construction to the statutory language simply renders the section silent as to the requirements for recounting absentee ballots tallied in a counting board precinct and comports with the procedures used in voting machine precincts which process absentee ballots as well as machine votes.

We hold, therefore, that, because the ballot box was properly sealed but the ballot bag was not so sealed and the number of names on the poll list did not equal the number of ballots in the box, the ballots are not recountable. Despite the explanation proffered for the discrepancy, we reach this conclusion in light of the statutory purpose to preserve the integrity of the ballots in the event a recount is necessary. Smith v Board of Canvassers of Saginaw County, 220 Mich 318, 320; 189 NW 856 (1922). To hold otherwise would defeat this purpose.

Affirmed. No costs, a public question being involved.

V. J. Brennan, J., concurred.

D. E. Holbrook, P.J.

(dissenting). This writer votes to reverse. The facts are set forth adequately in the majority opinion. Admittedly, the subject absentee ballots were not properly sealed in ballot bags and, due apparently to the voting method utilized by the county board election workers, the number of ballots preserved did not correspond to the number of entries in the poll book. Nevertheless, the ballot box was sealed with the seal of record. A record of the properly cast absentee ballots has thus been preserved intact.

The 15 election workers who recorded their own individual ballots on the machine used to tally absentee ballots did so on the basis of the township clerk’s reading of MCL 168.681; MSA 6.1681: "Any precinct election inspector in any township shall have the right to vote in the election precinct where he acts as such election officer, even though he resides in another election precinct of the same township”. As defined in MCL 168.654; MSA 6.1654, "election precinct” clearly signifies a geographic area and was not intended to include an absent voter counting place as provided for in MCL 168.792a; MSA 6.1792(1). Absent voters’ counting places were not established as polling places; rather they were intended to serve merely a recording function. The separate counting place was established expressly to prevent the recount difficulties experienced in the instant case.

In Groesbeck v Board of State Canvassers, 251 Mich 286, 291; 232 NW 387 (1930), the Court stated that:

"Some provisions are made mandatory in absolute effect by the use of specific imperative language. Others, while employing no special emphatic words, are held mandatory because they are designed to preserve the purity of the election, the secrecy of the vote, or the official character and integrity of the ballots both during and after the election. Such mandatory provisions must be given full effect even though it results in disfranchisement of voters or prevention of recount. Attorney General v. May, 99 Mich. 538 [58 NW 483] (25 L.R.A. 325 [1894]); Attorney General v. Glaser, 103 Mich. 396 [61 NW 648] (1894); Keith v Wendt, 144 Mich. 49 [109 NW 443 (1906)]; People v. Rinehart, 161 Mich. 585 [126 NW 704 (1910)]; Ritze v. Board of Canvassers, 172 Mich. 423 [137 NW 964 (1912)]; Smith v. Board of Canvassers, 220 Mich. 318 [189 NW 856 (1922)].
"Other provisions, however, while expressed mandatorily, are held directory in some circumstances, in that their nonobservance is not fatal to a count of ballots, notably when they involve the performance of duty by an election official, the neglect of which has no effect upon the election or will result in disfranchising voters without their fault. An elector has the right to rely upon a legally authenticated ballot, in statutory form, handed to him at the polls by an election official, as being an official ballot upon which he can cast a lawful vote for a candidate of his choice. He is not bound to trace the history of the ballot to ascertain that all the provisions of law have been fulfilled in its preparation.”

Although the votes of election workers who recorded their ballots on the counting place machine were improperly cast, although the outcome of the election may have been altered by their vote and although solely as a result of the workers’ mistake the number of ballots does not equal the number of voters’ names entered in the poll book, the majority interprets the above section and Ryan v Wayne County Board of Canvassers, 396 Mich 213; 240 NW2d 236 (1976), which relied upon Groesbeck, supra, to preclude a recount of the absentee ballots. This writer is drawn by the same authority to the conclusion that the names of the election workers who voted improperly should be struck from the poll book.

If the Court were to adopt this approach, the rectified poll book would contain the same number of entries as the sealed ballot box contains ballots. Under MCL 168.871; MSA 6.1871, and the regulations promulgated by the State Board of Canvassers under MCL 168.889; MSA 6.1889, the absent voters’ ballots recorded at the counting board would be recountable since two of the three mandatory requirements to allowing a recount have been met. This writer does not believe that the suggested result would contravene the intent of the relevant Michigan election laws as expressed in Ryan, supra, at 216-217:

" 'The evident purpose of the precautions prescribed in the statute is to preserve the integrity of the ballots, so that, if necessary to resort to a recount thereof, it may be done with the assurance of having the ballots present the identical verity they bore when cast.’ Smith v Board of Canvassers of Saginaw County, 220 Mich 318, 320; 189 NW 856 (1922).”

This writer would reverse.

       The poll list contained 1,323 names. Election inspectors found 1,301 ballots in the ballot box, plus four good ballots and three spoiled ballots locked inside the machine, for a total of 1,308 absentee ballots.

       Minutes of the Wayne County Board of Canvassers, December 13, 1976.

       In Ryan, supra, neither the ballot box nor the ballot bag was found to be properly sealed.

         R 168.911:
      "Absent voters’ ballots shall be recounted in the manner hereafter described for counting paper ballots.”
      R 168.918:
      "If the ballot box is locked and sealed in such manner as to render it impossible to open it without breaking such seal, and if the ballots therein contained are properly wrapped, tied and sealed, the ballots shall be recounted; but if the ballots are not properly wrapped, tied and sealed or if the seal, tape or wrapper shall have been loosened or broken, such ballots shall be recounted only if they correspond in number with the poll list delivered to the county clerk.”

       MCL 168.792a(7); MSA 6.1792(1)(7). Plaintiff bases his argument on the fact that the cited section permits the required polls list used at absentee voter counting places to be drawn up from the applications themselves. Because no elector is required to cast his vote by absentee ballot and may return to a regular polling place to vote, MCL 168.792a(6); MSA 6.1792(1)(6), discrepancies between the number of returned ballots and the poll list could quite regularly exist. The argument ignores the fact that MCL 168.792a(6); MSA 6.1792(1X6), also requires the voter who so chooses to return his ballot to the board of inspectors, who cancel and return the ballot to the clerk. It is also the official practice to note this type of return on the poll list. See footnote 2, supra.

       The added section reads:
      "(2) Upon a recount before any board of canvassers in precincts in which voting machines are used, all machines used in the precincts petitioned for shall be recounted with the following exceptions:
      "(a) No machines in a precinct shall be recounted if the sum of the numbers appearing on the public counters of all machines used in a precinct is in excess of the total of the number of voters who voted in the precinct as shown by the poll book, and the number of times the machine was operated by the inspectors and custodians, as shown by the record of the election inspectors, unless the reason for such excess can be satisfactorily explained to the board of canvassers by the election inspectors of that precinct.
      "(b) If a voting machine is not sealed with the seal of record in such a manner as to render it impossible to vote on the machine or to otherwise change the totals appearing on the individual candidate or proposition counters, that voting machine shall not be recounted.
      "(c) If the number appearing on the protective counter of a machine at the time of the recount does not equal the total of the number appearing on the protective counter at the opening of the polls as shown by the certificate of election inspectors, and the number appearing on the public counter at the time of the recount that voting machine shall not be recounted.
      "If one or more voting machines in a precinct can not be recounted, the original return of the election inspectors for such machine or machines shall be taken as correct.
      "In any machine precinct which can not be recounted, absent voters ballots tallied in such precinct shall not be recounted unless recorded separately.
      "Nothing in this section shall prevent the recounting of absent voters ballots tallied in a counting board precinct or in a precinct in which one or more machines are recountable if the ballots are securely packaged and sealed.”

       Where counting boards are not used to tally absentee ballots, MCL 168.791; MSA 6.1791, provides for the tallying of these ballots in a straight machine precinct. After counting the votes, the ballots are sealed in an envelope or "wrapped and tied in the manner provided at elections where voting machines are not used” and locked inside the voting machine.