text:
    ROSEBROCK v VONDETTE
    Docket No. 77-4426.
    Submitted June 12, 1978, at Grand Rapids.
    Decided August 22, 1978.
    Michael Rosebrock, born December 25, 1956, was struck by an automobile operated by Michael Welense on March 31, 1962. Welense died on March 24, 1966, of causes not related to the accident and his estate was probated on April 6, 1966, under the small estate act. Pursuant to the provisions of the act, no administrator was appointed and no bond was furnished. The estate, consisting of $875, was distributed to a son of the decedent who had paid the funeral bill.
    On September 12, 1975, Michael Rosebrock filed a petition in Saginaw County Probate Court praying for the admission of the last will and testament of Michael Welense, dated October 11, 1958, and for the appointment of Tom Vondette as administrator with will annexed. On October 16, 1975, the administrator was appointed as prayed for. He qualified on the same day and has been acting in that capacity since that date. The petition for the admission of the will also stated that a suit would be initiated against the fiduciary to recover under a public liability automobile insurance policy and not for reaching any of the assets of the estate. There was no appeal from these proceedings and no motion was made to set them aside.
    Michael Rosebrock reached the age of 18 on December 25, 1974, and filed his complaint in circuit court of October 28, 1975, against the administrator.
    In response to a motion brought by the decedent’s insurance company, the Saginaw Circuit Court, Gary R. McDonald, J., granted accelerated judgment for the defendant. The basis for the motion was that defendant’s decedent passed away more than six years prior to the filing of the complaint and that more than three months had elapsed since the closing of the small estate. The court granted the motion based on the authority of a statute which bars all debts and obligations of any person six years from the date of his death. The plaintiff appeals. Held:

      References for Points in Headnotes
    [1] 73 Am Jur 2d, Statutes §§ 145, 146, 195.
    [2] 51 Am Jur 2d, Limitation of Actions §§ 138, 182-185.
    [3] 51 Am Jur 2d, Limitation of Actions §§ 138, 139.

      The plaintiffs cause of action is not barred by the lapse of more than six years because the Revised Judicature Act contains a statute which allows a juvenile to bring an action within one year after reaching majority although the period of limitations has run and because the general saving provisions of the Revised Judicature Act apply to all causes of action created by Michigan statutes.
    Reversed and remanded.
    1. Statutes — Statutory Construction — Legislative Intent — Inconsistent Statutes.
    It is the function of the court to apply the fundamental rules of statutory construction and thereby seek to determine the legislative intent where two statutes, on the surface, appear to be inconsistent insofar as the facts of a particular case are concerned.
    2. Limitation of Actions — -Statute of Limitations — Exceptions— Infants.
    The exemptions from the running of statutes of limitations ordinarily granted to infants do not rest on any fundamental doctrine of law, but on the legislative will expressed in the statutes; infants may be put on the same footing as adults in this respect, and unless excepted they so stand; the Michigan Legislature has created an exception for infants.
    3. Limitation of Actions — Revised Judicature Act — Saving Provisions — Exemptions.
    The general saving provisions of the Revised Judicature Act which create exemptions from the running of statutes of limitations apply to causes of action created by Michigan statutes.

      Otto & Otto, for plaintiff.

      Philip S. Della Santina, for defendant.
    Before: D. E. Holbrook, Jr., P. J., and T. M. Burns and W. Van Valkenburg, JJ.

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

   W. Van Valkenburg, J.

The unique set of facts in this case comes to us on an appeal from a decision of the Saginaw County Circuit Court wherein a motion for accelerated and/or summary judgment was granted by that court and the complaint dismissed with prejudice.

Plaintiff, born December 25, 1956, was struck by an automobile operated by Michael Welense on March 31, 1962. The latter died from causes not related to the accident on March 24, 1966, and his estate, consisting of $875, was probated on April 6, 1966, under the small estate act. MCL 708.41; MSA 27.3178(451). Pursuant to the provisions of that act, no administrator was appointed and no bond was furnished. The sum above mentioned was distributed to a son who had paid the funeral bill.

Nothing more occurred with regard to the estate until September 12, 1975, when a petition was filed in Saginaw County Probate Court by plaintiff praying for the admission of the last will and testament of Michael Welense, dated October 11, 1958, and for appointment of Tom Vondette as administrator with will annexed. All of the heirs were notified and a notice of hearing was published. The matter was heard on October 16, 1975. No heirs appeared, and Mr. Vondette was appointed as prayed for. He qualified on the same day and has been acting in his capacity as administrator since that date. The petition for the admission of the will also stated that a suit would be initiated against the fiduciary to recover under a public liability automobile insurance policy and not for the purpose of reaching any other assets of the estate. There was no appeal from these proceedings and no motion was made to set them aside.

Plaintiff reached majority at the age of 18 on December 25, 1974, and filed his complaint in the circuit court on October 28, 1975.

Attorneys employed by the insurance carrier filed an answer on behalf of defendant and also filed the above mentioned motion on January 5, 1976. The basis for the motion was that defendant’s decedent passed away more than six years prior to the filing of the complaint and that more than three months had elapsed since the closing of the small estate.

The court rendered its opinion and order on October 28, 1977. Among other findings of fact and law, the judge acknowledged that the order of the probate court should have been appealed. Nevertheless, the motion was granted on authority of MCL 708.20; MSA 27.3178(430), and this appeal followed.

Two statutes, apparently in conflict as far as the above facts are concerned, will be discussed. MCL 600.5851(1); MSA 27A.5851(1) provides in part:

"If the person first entitled to make an entry or bring an action is under 18 years of age, insane or imprisoned at the time his claim accrues, he or those claiming under him shall have 1 year after his disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run.”

MCL 708.20; MSA 27.3178(430), upon which the lower court relied, reads in part:

"All debts and obligations of any person shall be barred after 6 years from the date of his death unless presented to the probate court as provided by law or unless sooner barred by law, notwithstanding that no proceedings shall have been taken to probate such estate.”

The issue in this litigation may be stated as whether a plaintiffs tort action against a decedent’s estate is barred where the action is filed more than six years after the date of the death of the decedent and where the action is filed within one year after plaintiff has reached his majority.

Counsel for defendant in his brief has. called our attention to In re Cook Estate, 366 Mich 323, 327; 115 NW2d 98 (1962), wherein certain individuals, including a minor who had no general guardian, moved to reopen the hearing on claims in order to present damages arising from an automobile accident. The period of three months in which tardy claimants may seek such a reopening under MCL 701.19; MSA 27.3178(19) had elapsed. The probate court granted the motion only to be reversed by the circuit court. The Supreme Court affirmed the decision of the circuit court holding in part that:

"The legislature has provided a definite and final procedure for the handling of claims against estates.” 366 Mich at 327.

It should be noted, however, that the statutory rights of a minor were not raised in this case.

Reasoning similar to that in Cook was used in the Supreme Court’s decision in In re Curzenski Estate, 384 Mich 334; 183 NW2d 220 (1971).

It is well established that the jurisdiction of probate courts is statutory and that those courts were organized for the purpose of providing a means whereby the debts of a decedent, including tort claims, could be handled with due dispatch and the balance of the estate distributed to the heirs or the beneficiaries of a last will and testament. In re Chamberlain’s Estate, 298 Mich 278, 283; 299 NW 82 (1941).

Both of the estates in Cook and Curzenski were processed in a regular and orderly manner as provided by law. However, the holdings do not apply to the case at bar. First, in the present case no appeal was taken from the decision of the probate judge and consequently the issue of reopening a hearing on claims is not before this Court.

Secondly, the petition of plaintiff did mention the fact that he was seeking the proceeds of an insurance policy, but more importantly, prayed for the admission to probate of a last will and testament. Clearly this overshadowed the small estate proceedings previously taken. MCL 702.57; MSA 27.3178(127).

It is therefore necessary to analyze the two statutes under consideration which, on the surface, appear to be inconsistent insofar as the present facts are concerned.

The Supreme Court in Acme Messenger Service Co v Unemployment Compensation Comm, 306 Mich 704, 709; 11 NW2d 296 (1943), stated:

"The function of the court is to apply the fundamental rules of statutory construction and thereby seek to determine the legislative intent. If the language of the statute is plain and unambiguous, no interpretation is necessary.”

Application of this test to the statutes in question indicates that both are "plain and unambiguous”. MCL 708.20 makes no exception for minors, however, such an exception was created by the enactment of MCL 600.5851. The following authorities appear to answer this question in the affirmative.

In Moebius v McCracken, 261 Mich 409, 418; 246 NW 163 (1933), the Supreme Court held that the statute of limitations does not run against a minor during the period of minority.

The general rule can be found in 54 CJS, Limitations of Actions, § 235, p 262:

"The exemptions ordinarily granted to infants, however, do not rest on any fundamental doctrine of the law, but on the legislative will expressed in the statutes; infants may be put on the same footing as adults in this respect, and unless excepted they so stand.”

This principle was followed in Cugell v Sani-Wash Laundry Co, 280 Mich 286, 288; 273 NW 571 (1937):

"It is the rule that statutes of limitations apply to infants as well as to adults, unless exceptions are made in their favor.”

And in Smith v Bordelove, 63 Mich App 384, 386; 234 NW2d 535 (1975), this Court recognized that the Michigan Legislature had created an exception for infants.

Having concluded that minors are entitled to an exception, we turn our attention to situations where this exception conflicts with other statutes which contain their own specific limitation periods. Assistance can be found in Lambert v Calhoun, 394 Mich 179; 229 NW2d 332 (1975). The first paragraph of that decision reads:

"The question presented in these consolidated appeals is whether the minority saving provision in the Revised Judicature Act extends the time for bringing suit under an act which contains its own statute of limitations.” Lambert at 181.

In that case two minors commenced separate actions three years and two months following the date of the accident. The Secretary of State intervened and moved for an accelerated judgment on the grounds that MCL 257.1118; MSA 9.2818 and MCL 257.1128; MSA 9.2828 barred any recovery because of the three-year statute of limitations contained therein. The trial judge granted the motion and his decision was affirmed by a majority of a panel in this Court on authority of Holland v Eaton, 373 Mich 34, 39; 127 NW2d 892, 895 (1964), which held that a specific time limitation in a statute excludes the saving provisions set forth in the general statute of limitations.

The Supreme Court, following consideration of the issue, reversed this Court’s holding and overruled the principle announced in Holland. (For a list of other cases held in abeyance pending the decision in that case, see Lambert at 183, n 6.) The final holding of the Court concludes:

"We hold that the general saving provisions of the Revised Judicature Act apply to causes of action created by Michigan statutes.” Lambert at 192.

A summary as to the practical effect of the above decision can be found in 22 Wayne L Rev:

"The result of Lambert was to overrule Holland and establish the rule that henceforth the minority savings provisions of the Revised Judicature Act applies to all statutorily created causes of action, as well as common law causes of action, even when the statute creating the right contains its own period of limitations.” Atkinson, Torts, 22 Wayne L Rev 629, 648 (1976).

The various provisions of the probate code provide a means whereby estates can be probated in an expeditious manner. We have no quarrel with that philosophy. As shown in Cook, tardy claimants may request a reopening of a hearing on claims within three months after the estate has been closed. The six-year statute carries a presumption that claims will be presented "as provided by law”. MCL 708.20; MSA 27.3178(430). Apparently the real intention of the Legislature was to prevent the presentation of claims where no proceedings had been taken. Therefore, in effect, the six-year statute carries a built-in specific limitation period.

On the other hand, the saving provisions of the Revised Judicature Act are general in nature which brings that six-year limitation period within the orbit of the Lambert decision. That statute was last amended by 1971 PA 79 when the age was changed from 21 to 18. The Legislature must have been cognizant of the six-year rule and had an opportunity at that time to make exceptions if it had elected to do so.

Therefore, for the reasons hereinbefore delineated, we hold that MCL 600.5851(1); MSA 27A.5851(1) controls the resolution of the issue in this case and that plaintiffs cause of action is not barred.

Reversed and remanded for trial on the merits. Costs to abide the final result.


source: Caselaw Access Project

author: T. M. Burns, J. D. C. Riley, J.

license: Public Domain

text:
    PEOPLE v TILLMAN
    Docket No. 27119.
    Submitted May 8, 1978, at Detroit.
    Decided September 5, 1978.
    Leave to appeal applied for.
    Harold Tillman was convicted of second-degree murder and of assault with intent to commit murder. The incident on which the charges were based occurred on April 30, 1974. The defendant had an argument with the woman with whom he was living. The argument ended when the woman’s two children were thrown from a window of their third floor apartment. One child died. The prosecutor’s evidence showed that the defendant was responsible for throwing the children out of the window.
    The defendant pled guilty to a single count of second-degree murder. He attempted to appeal that conviction but was unable to do so because the court reporter had misplaced her notes and was unable to prepare a transcript. Eventually, the trial court granted the defendant a new trial. The prosecutor then reinstated the assault-with-intent-to-commit-murder count which had been dropped. Defendant was convicted on both counts, Recorder’s Court of Detroit, Robert L. Evans, J. The defendant appeals, claiming that he could not properly be charged with the assault count and that he was deprived of a fair trial by the failure of the prosecutor to inform the jury that one of the prosecution’s witnesses had been granted immunity during trial. Held:

    1. The prosecutor was bound to proceed only with the murder count.
    2. There was no duty for the prosecution or the court to disclose to the jury the grant of immunity to the witness because the defense was in full knowledge of the circumstances surrounding the grant of immunity and did not request a disclosure to the jury and said nothing regarding the issue at trial.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 495.
    [2, 5] 75 Am Jur 2d, Trial § 690.
    81 Am Jur 2d, Witnesses § 103.
    [3] 75 Am Jur 2d, Trial §§ 864, 865.
    [4] 23 Am Jur 2d, Depositions and Discovery § 324.

      The conviction for second-degree murder is affirmed.
    The conviction for assault with intent to murder is vacated.
    D. C. Riley, J., concurred. She would emphasize that a requirement that the defendant request a disclosure regarding the grant of immunity to a witness applies only in instances, as in the case at bar, where the defendant is fully aware of the existence of an agreement or deal with the witness.
    Opinion of the Court
    1. Criminal Law — Pleas of Guilty — New Trial — Additional Charges — Same Transaction.
    Additional charges arising out of the same transaction may not be resurrected where a defendant pleads guilty to a charge arising out of a transaction and later the plea-based conviction is set aside; the prosecution is bound by its initial assessment that the ends of justice would better be served by its concessions for the original plea.
    2. Criminal Law — Witnesses—Grant of Immunity — Codefendant —Disclosure to Jury — Request for Disclosure.
    It is incumbent upon the prosecution upon request of defense counsel to disclose to the jury that an accomplice or co-conspirator has been granted immunity or other leniency to secure his testimony, and if such fact comes to the attention of the trial judge it is incumbent upon the judge to disclose it to the jury; where there was no request from the defense to reveal a grant of immunity, neither the prosecution nor the trial court deprived the defendant of a fair trial by failing to disclose it to the jury.
    3. Criminal Law — Prosecutor’s Duty to Disclose — False Information-Witnesses — Concessions to Witness — Request by Defense.
    A defense demand for disclosure of information to the jury is not necessary to trigger a prosecutor’s duty to disclose information to the jury which contradicts false testimony that no concessions have been made to a witness.
    4. Criminal Law' — Prosecutor’s Duty to Disclose — Information Known to Defense — Request by Defense.
    A defense demand for disclosure of information to the jury is necessary to trigger a prosecutor’s or court’s duty to disclose to the jury information which is known to the defense and about which nothing is said at trial.
    Concurrence by D. C. Riley, J.
    5. Criminal Law — Witnesses—Grant of Immunity — Duty to Disclose — Request by Defense — Defendant’s Knowledge of Deal.

      A requirement that a defendant request disclosure to the jury that immunity or other concessions have been granted to a witness before the prosecution is under a duty to make such a disclosure applies only in instances where the defendant is fully aware of the existence of an agreement or deal with the witness; the prosecution should be under a duty to disclose any deal made in exchange for a witness’s testimony, whether or not false testimony was presented concerning the existence of a deal, where the defense does not have speciñc knowledge of the agreement.

      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, Assistant Prosecuting Attorney, for the people.

      Alan L. Kaufman, for defendant on appeal.
    Before: Cynar, P. J., and T. M. Burns and D. C. Riley, JJ.
   T. M. Burns, J.

Defendant appeals by right from his jury trial conviction for second-degree murder, MCL 750.317; MSA 28.549, and assault with intent to commit murder, MCL 750.83; MSA 28.278. Defendant claims that he could not properly be charged with the assault count and that he was deprived of a fair trial by the failure of the prosecutor or the court to inform the jury that one of the prosecutor’s witnesses had been granted immunity during trial. We vacate the conviction and sentence for assault with intent to commit murder and affirm the murder conviction.

I

The charges in this case are based on an incident which occurred on April 30, 1974. Defendant had an argument with the woman he was living with which ended when the woman’s two children were thrown out of the window of their third floor apartment. One child died, the other lived. The prosecutor’s evidence showed that defendant was responsible for throwing the children out of the window.

Defendant pled guilty to a single count of second-degree murder on October 21, 1974. Defendant attempted to appeal that conviction but was unable to do so because the court reporter had misplaced her notes and was unable to prepare a transcript. After several delays and a hearing before the trial court, defendant was granted a new trial by the trial court in July of 1975.

The prosecutor reinstated the assault 'count and trial was held in November of 1975. Defendant was convicted by the jury on both counts and given two life terms.

II

Within his first issue, defendant raises two points. He claims that People v McMiller, 389 Mich 425; 208 NW2d 451 (1973), barred reinstating the assault with intent to murder count and that trying this improper charge with the murder count deprived him of a fair trial on the murder count. We accept the first contention and reject the second.

The precise holding of McMiller does not apply to these facts because the assault count is not a higher offense based on the same conduct. The policy of McMiller does apply and should have prevented the prosecutor from reinstating the assault with intent to commit murder count.

In dealing with a factually similar problem (i.e., two charges based on a single criminal transaction, one of which was discontinued when the defendant pled guilty to the other and reinstated when the plea was set aside) in Mikowski v Grand Traverse County Sheriff, 52 Mich App 66; 216 NW2d 603 (1974), lv den, 391 Mich 835 (1974), a panel of this Court concluded that additional charges arising out of the same transaction could not be resurrected after a plea-based conviction was set aside. This is the real meaning of McMiller. The prosecutor is bound by his initial assessment that the ends of justice are served by his concessions for the original plea. In this case, the prosecutor was bound to proceed only with the murder count.

We, therefore, vacate defendant’s conviction and sentence for assault with intent to commit murder.

We cannot, however, accept defendant’s contention that forcing him to stand trial on an improper charge of assault with intent to commit murder requires reversal of the murder conviction also. There are two types of prejudice which could result from trying the two counts where only one was proper. There is the possibility that evidence which would be admissible under the improper charge would not be admissible under the proper charge. Defendant has disclaimed this possibility, agreeing that the same evidence would be admissible if a retrial were ordered on the murder count only. Defendant does claim that this same evidence may have been used to better advantage by defense counsel or had a different effect on the jury, but we cannot agree.

This leads to the second possible area of prejudice. Defendant claims that simply facing multiple charges made it more likely that he would be convicted of something, citing People v Vail, 393 Mich 460; 227 NW2d 535 (1975). Vail involved submitting an offense to the jury which was unsupported by the evidence. The court feared that a possible compromise verdict, based on the improperly submitted higher charge, would prejudice the defendant. In this case the evidence and instruction on the assault count were sufficient, but because of an overriding policy relating to plea bargaining, we have determined that the count was improperly submitted to the jury. The two situations are not analogous and the rationale of Vail does not require reversal of the murder count in this case.

Ill

Defendant also claims that he was deprived of a fair trial when the proceedings ended 'without the prosecutor or the trial court informing the jury that a prosecution witness had been granted immunity. The witness in question was defendant’s girl friend who was present during the incident for which defendant stood trial and whose children were the victims.

During the direct examination of defendant’s girl friend, the trial court sensed that if she were allowed to answer certain questions posed by the prosecutor, she could incriminate herself. The court stopped the proceedings and was going to appoint counsel to advise her during her testimony when the prosecutor agreed that there was a problem and announced that he was willing to grant immunity, apparently under MCL 780.701 et seq.; MSA 28.1287(101) et seq. The court agreed to the grant of immunity and determined that it would be unnecessary to appoint counsel under the circumstances.

Defense counsel was present during this entire exchange. He never requested an instruction on the grant of immunity or questioned the witness about it. Whether this décision not to pursue the grant of immunity before the jury was based on the prosecutor’s cross-examination of the witness, necessitated by her refusal to point the finger at defendant at trial and her express wish to forgive defendant and forget about the entire incident, or some other bit of trial strategy is not for us to decide. Our question is whether defendant was denied a fair trial because the jury was not informed of this information. We answer no.

Defendant relies on two cases to support his position, Giglio v United States, 405 US 150; 92 S Ct 763; 31 L Ed 2d 104 (1972), and People v Nettles, 41 Mich App 215; 199 NW2d 845 (1972). However, the problem in each of those cases, and what the court found to be a denial of due process, was the prosecutor’s failure to disclose a deal with a witness in the face of false testimony given by the witness that no bargain had, in fact, been struck. It was not the fact that a bargain had been struck or that immunity had been granted which was crucial, but the prosecutor’s failure to correct a positive assertion before the jury that the contrary was true.

It is unnecessary to review in this case the entire scope of the prosecutor’s duty under the due process clause. However, the cases generally fall into three broad categories: (1) a prosecutor’s refusal of a defense request for material, the precise nature of which is unknown to the defense, (2) the prosecutor’s duty to disclose exculpatory evidence unknown to the defense without a request being made, or (3) prosecutorial use of false testimony, knowing it to be false. See, e.g., Napue v Illinois, 360 US 264; 79 S Ct 1173; 3 L Ed 2d 1217 (1959), Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), Giglio v United States, supra, and United States v Agurs, 427 US 97; 96 S Ct 2392; 49 L Ed 2d 342 (1976).

In the present case there was no false testimony concerning the grant of immunity. The prosecutor did not refuse to disclose any exculpatory material which was unknown to the defense. The question then, is whether the prosecutor had a duty to bring this information to the jury’s attention without defense counsel making a request.

In dealing with this problem, our Supreme Court stated in People v Atkins, 397 Mich 163, 173; 243 NW2d 292 (1976):

"Where an accomplice or co-conspirator has been granted immunity or other leniency to secure his testimony, it is incumbent upon the prosecutor and the trial judge, if the fact comes to the court’s attention, to disclose such fact to the jury upon request of defense counsel. ” (Emphasis added.)

Defense demand triggers the prosecutor’s duty to disclose information to the jury, unless false information is given. See, People v Mata (On Remand), 80 Mich App 204; 263 NW2d 332 (1977). Since there was no request from defense counsel to reveal the grant of immunity, neither the prosecutor nor the court deprived defendant of a fair trial by failing to disclose it.

Two prior cases from this Court could be read as being contrary to the holding just announced. In both People v Trombley, 67 Mich App 88, 94; 240 NW2d 279 (1976), lv den, 396 Mich 861 (1976), and People v Bryant, 77 Mich App 108, 111; 258 NW2d 162 (1977),. the panel stated that the burden of disclosing any concessions made to any witness in exchange for his testimony rested on the prosecutor, not the defense. This statement was not the holding of either case but made only to provide guidance in a retrial which was necessary because of other error. Nor did either case discuss the role of a defense demand or request.

Trombley cited only Giglio v United States, supra, in support of the statement. Bryant cited only Trombley. But, as shown above, Giglio was not a pure disclosure case but a failure to correct false testimony case. Clearly, a defense demand is not necessary to trigger the prosecutor’s duty to disclose information to the jury which contradicts false testimony that no concessions have been made to a witness. Just as clearly, a defense demand is necessary to trigger a prosecutor’s or court’s duty to disclose to the jury information which is known to the defense and about which nothing is said at trial. See, People v Atkins, supra. Cf. United States v Agurs, supra. Trombley and Bryant should be applied with these considerations in mind.

The conviction for assault with intent to murder is vacated. The conviction for second-degree murder is affirmed.

Cynar, P. J., concurred.

D. C. Riley, J.

(concurring). I write separately solely to express my conception of the disclosure rules in regard to promises made to a witness in exchange for his or her testimony. I would emphasize that a requirement that the defendant request such disclosure only applies in instances, as in the case at bar, where the defendant is fully aware of the existence of an agreement or deal with the witness. The focus of appellate review of this type of issue should be on the trier of fact’s right to know all of the relevant evidence concerning the credibilities of each witness, rather than on which party makes known that evidence. To insure the fairest result, the prosecution should be under a duty to disclose any deal made in exchange for a witness’s testimony, whether or not false testimony was presented concerning the existence of a deal, where the defense does not have specific knowledge of the agreement.

In the present case, there is no question but that. defendant was fully aware of the immunity granted to the witness but as pointed out by the majority, for some tactical reason did not bring out the immunity before the jury. I agree with the majority that under People v Atkins, 397 Mich 163; 243 NW2d 292 (1976), the facts of the case required a defense request to place a duty upon the prosecutor to disclose the immunity.

       The writer notes that he participated in the decision in Trombley but for the reasons stated in the text believes the statement of the rule in Trombley was overbroad and unnecessary to a decision in that case.


author: McGregor, J. R. M. Maher, P. J.

text:
    PEOPLE v BUTTS
    Docket No. 77-1341.
    Submitted June 23, 1978, at Detroit.
    Decided September 5, 1978.
    Leave to appeal applied for.
    Lee Butts was convicted in Recorder’s Court of Detroit, Henry Heading, J., of first-degree felony murder and armed robbery. Defendant appeals, alleging, inter alia, error in the instructions to the jury. Held:

    1. The trial court’s instruction that the jury should find the defendant guilty of first-degree murder if the jury concluded that the victim was killed as a result of the defendant’s perpetration of or attempt to perpetrate the robbery was not erroneous. There is no requirement that the jury should be instructed that they have to find malice in order to convict of first-degree murder in a felony-murder prosecution where the underlying felony is one of those enumerated in the statute.
    2. The conviction of armed robbery should be vacated because the robbery was a necessary element of the first-degree murder under the prosecution’s theory of the case.
    Conviction of first-degree murder affirmed; conviction of armed robbery vacated.
    R. M. Maher, P. J., dissented. He would hold that the element of malice is properly a matter for jury consideration and that, therefore, the jury should have been instructed that the defendant could be convicted of first-degree felony murder only if the jury found that the killing was done with malice.
    Opinion op the Court
    1. Homicide — Felony Murder — Instructions to Jury.
    Michigan has a felony-murder rule; therefore, an instruction to the jury that they should find a defendant guilty of first-degree murder if they concluded that the victim was killed as a result of the defendant’s perpetration of or attempt to perpetrate an armed robbery was proper.

      References for Points in Headnotes
    [1] 40 Am Jur 2d, Homicide § 499.
    [2] 40 Am Jur 2d, Homicide §§ 50, 51, 525.
    [3] 40 Am Jur 2d, Homicide § 46.
    [4] 40 Am Jur 2d, Homicide §§ 50, 51.

      2. Homicide — Statutes—Felony Murder — Malice.
    The malice necessary for a killing to be first-degree murder under the felony-murder statute is provided by the commission of one of the enumerated felonies; but where the killing occurs during the commission of a felony not listed in the statute, malice may be implied from the commission of the felony for the purpose of sustaining a conviction of second-degree murder (MCL 750.316; MSA 28.548).
    3. Homicide — Felony Murder — Armed Robbery — Lesser Offenses.
    A defendant’s conviction of armed robbery should be vacated where he was also convicted of first-degree felony murder and where the armed robbery was a necessary element of the felony murder under the prosecution’s theory of the case.
    Dissent by R. M. Maher, P. J.
    4. Homicide — Felony Murder — Malice—Instructions to Jury.

      The essential element of malice in a prosecution for ñrst-degree felony murder is properly a matter for the jury’s consideration; an instruction to the jury which imputes malice to the killing as a matter of law is improper.

      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.

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

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

   McGregor, J.

Defendant Lee Chester Butts and codefendant Ronald Wilder were charged with first-degree murder under the felony-murder statute, MCL 750.316; MSA 28.548, and armed robbery, MCL 750.529; MSA 28.797. Following a consolidated trial, both were jury convicted as charged. Defendant was sentenced to life imprisonment on the first count and to a term of 15 to 30 years imprisonment on the second count. Defendant has appealed as of right.

In People v Wilder, 82 Mich App 358; 266 NW2d 847 (1978), this Court recently affirmed the co-defendant’s conviction of first-degree murder and vacated his conviction of armed robbery, the latter being a necessary element of the former under the prosecution’s theory of the case. See People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977).

As in the Wilder case, supra, defendant argues that the trial court erred in its instruction on first-degree murder because it told the jury to find defendant guilty if it concluded that the victim was "killed” as a result of the defendants’ perpetration of or attempt to perpetrate the robbery. Defendant contends that the jury should have been instructed that it had to find "malice” in order to convict of first-degree murder.

That question has divided this Court since the issuance of the opinion in People v Fountain, 71 Mich App 491, 505-506; 248 NW2d 589 (1976), in which it was concluded that "Michigan has neither a statutory felony-murder doctrine nor a common law felony-murder doctrine”, and that "Malice is not, in this state, imputed to an act of killing from the intent to commit an underlying felony”.

In People v Till, 80 Mich App 16; 263 NW2d 586 (1977), this Court in a split decision rejected the Fountain rationale and concluded that a felony-murder rule does exist in this state.

In both People v Wright, 80 Mich App 172; 262 NW2d 917 (1977), lv gtd, 402 Mich 938 (1978), and People v Thompson, 81 Mich App 348; 265 NW2d 632 (1978), lv gtd, 402 Mich 938 (1978), this Court in split decisions followed the Fountain case. However, the Michigan Supreme Court has granted leave to appeal in those two cases. In the codefendant’s case, People v Wilder, supra, this Court, in a split decision, followed the Till case.

We follow the Till case again because we find it better reasoned and more persuasive than Fountain. In view of the continuing support for the Fountain opinion, however, we find it necessary to point out what we consider to be weaknesses in that decision.

The Fountain opinion concedes that early Michigan cases indicated that a felony-murder rule existed in Michigan. However, after citing People v Utter, 217 Mich 74; 185 NW 830 (1921), People v Treichel, 229 Mich 303; 200 NW 950 (1924), and People v Andrus, 331 Mich 535; 50 NW2d 310 (1951), felony-murder cases involving issues as to proper instructions on lesser included offenses, the Fountain opinion concludes that those decisions are inconsistent with a felony-murder rule. No mention is made, however, of the fact that following the decisions in those three cases, the Michigan Supreme Court in People v Podolski, 332 Mich 508; 52 NW2d 201 (1952), cert den 344 US 845; 73 S Ct 62; 97 L Ed 657 (1952), sustained a first-degree felony-murder conviction where the killing that occurred was that of a policeman shot by another policeman while the defendant was attempting an armed robbery. Such a result would have been impossible except under a felony-murder law. The defendant’s only "malice” was in attempting to commit an armed robbery. A similar result on similar facts was reached by this Court in People v Smith, 56 Mich App 560; 224 NW2d 676 (1974). Also, in People v Bowen, 12 Mich App 438; 162 NW2d 911 (1968), lv den, 381 Mich 814 (1969), the felony-murder law was applied where a cofelon was accidentally killed by the defendant during the course of a felony.

To be distinguished from those cases is People v Austin, 370 Mich 12; 120 NW2d 766 (1963), in which a codefendant was shot and killed by the intended robbery victim. Defendant was charged with felony-murder, but the trial court quashed the information. On appeal, the Michigan Supreme Court affirmed. It specifically declined either to extend the Podolski holding, supra, or to overrule it, the distinction made being that in Podolski the shooting of one police officer by another was accidental, whereas in the Austin case the shooting of one felon by the intended victim was a justifiable homicide.

The principal case relied upon in the Fountain opinion is a 1972 Michigan Supreme Court decision. Specifically, the Fountain opinion states at 504: "Finally, in People v Carter, 387 Mich 397; 197 NW2d 57 (1972), the Michigan Supreme Court rejects the common law felony-murder doctrine explicitly.”

However, the Carter case involved two felonies, robbery and kidnapping. The incident occurred December 1, 1967, and at that time kidnapping was not one of the enumerated felonies in the felony-murder statute, although robbery was. Kidnapping was only added to the felony-murder statute effective March 20, 1970. The pertinent questions being discussed in the Carter opinion were what constituted "murder”, whether second-degree murder included death occurring during felonies "other than those mentioned in the first-degree murder statute, i.e., kidnapping”, 387 Mich at 414, and whether the court erred in failing to instruct the jury with respect to manslaughter. The Supreme Court held in the Carter case that it was error in that case not to instruct on manslaughter. The Carter opinion does not appear to have found any error in the instruction on first-degree murder that "in order for there to be first degree murder, death would have to result from the robbery”, 387 Mich at 409. That language is very much like the first-degree murder instruction in the present case.

Careful examination of the Carter opinion has failed to reveal either an "explicit” or implicit rejection of the long established felony-murder doctrine in this state. Indeed, the following language from the Carter opinion seems inconsistent with such a conclusion.

'Tf there has been a killing during the commission of one of the felonies enumerated under ñrst-degree murder, this establishes the degree. If the killing occurs during the commission of some other felony, malice may be implied but the nature of the felonious act must be considered. Many felonies are not inherently dangerous to human life. To hold that in all cases it is murder if a killing occurs in the commission of any felony would take from the jury the essential question of malice.” (Emphasis added.) 387 Mich at 422.

Because the unusual facts in the Carter case would have supported a conviction of first-degree murder under the felony-murder statute if the jury found that the killing occurred during the commission of the robbery, or a conviction of second-degree murder if the killing occurred during the commission of the kidnapping, it appears that the above-quoted language from the Carter case reaffirms that the malice necessary for first-degree murder under the felony-murder statute is provided by the commission of one of the enumerated felonies, but that where the killing occurs during the commission of a felony not listed in the statute, malice may be implied from the commission of the felony for the purpose of sustaining a conviction of second-degree murder. Therefore, we decline to follow the Fountain decision which we think erroneously construes the Carter opinion.

The remaining issues raised by defendant require little discussion. There was no prejudicial error in the instruction relative to premeditation or in the definition of malice since defendant was convicted of first-degree murder under the felony-murder statute. Contrary to defendant’s allegation, the trial court did instruct on specific intent as an element of armed robbery. The trial court’s reversal of its ruling on the admissibility of certain evidence together with its cautionary instructions cured any prejudicial error. The instructions on prior inconsistent statements and identification were sufficient. The other allegations of reversible error have been considered but lack merit.

As in People v Wilder, supra, we hold that defendant’s armed robbery conviction is vacated. Defendant’s conviction of first-degree murder is affirmed.

J. H. Gillis, J. concurred.

R. M. Maher, P. J.

(dissenting). For the reasons stated in People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976), and in People v Wright, 80 Mich App 172; 262 NW2d 917 (1977), lv gtd, 402 Mich 938 (1978), I dissent. The jury should have been instructed that the defendant could be convicted of first-degree felony murder only if the jury found the killing was done with malice. The essential element of malice was improperly imputed to the killing as a matter of law. It was properly a matter for the jury’s consideration.


author: J. H. Gillis, J. McGregor, J.

text:
    JAYNO HEIGHTS LANDOWNERS ASSOCIATION v PRESTON
    Docket No. 77-1765.
    Submitted June 21, 1978, at Detroit.
    Decided September 5, 1978.
    Defendant John M. Preston owned a property the deed to which contained a restrictive covenant to the effect that any dwelling upon the property should be occupied by no more than one single family. Mr. Preston built a dwelling house on the property and leased the house to defendants Margaret Evans and Larry Goldsworthy, Jr., who used the house to provide a home licensed under the Adult Foster Care Facility Licensing Act. Plaintiff, Jayno Heights Landowners Association, sued defendants to enforce a restrictive covenant in the deed to Mr. Preston which restricted the use of the property to single family residential purposes. Waterford Township intervened as a party plaintiff but withdrew by stipulation of the parties. The Oakland Circuit Court, William John Beer, J., granted summary judgment in favor of the plaintiff. Defendant appeals. Held:

    1. Definitions employed in housing codes and zoning ordinances do not control the interpretation of restrictive covenants.
    2. Under the facts of this case, the public policy in favor of providing adult foster care facilities does not outweigh the public policy favoring the rights of property owners to restrict the use of their property to single family dwellings occupied by single family units.
    Affirmed.
    McGregor, J., dissented. He would hold that six or fewer elderly women living together in a licensed adult foster care facility constitute a "single family unit” with a proper basis of affiliation in their mutual need for foster care for purposes of interpreting a restrictive covenant limiting occupancy to only a single family unit.

      References for Points in Headnotes
    [1] 20 Am Jur 2d, Covenants, Conditions, and Restrictions § 277.
    [2] 20 Am Jur 2d, Covenants, Conditions, and Restrictions § 193.
    [3] 20 Am Jur 2d, Covenants, Conditions, and Restrictions § 182.
    [4, 5] 20 Am Jur 2d, Covenants, Conditions, and Restrictions §§ 209-211.
    Hospital, sanitarium, home for aged, nursing home, or the like, as violation of restrictive code, 94 ALR2d 726.

      Opinion of the Court
    1. Covenants — Restrictive Covenants — Deeds—Interpretations of Restrictive Covenants — Housing Codes — Zoning Ordinances.
    Definitions employed in housing codes and zoning ordinances do not control the interpretation of restrictive covenants.
    2. Covenants — Restrictive Covenants — Impairment of Contract— Legislative Action — Police Power.
    Private deed restrictions are contractual rights and should not be impaired by state legislative action absent a lawful exercise of the police power.
    3. Covenants — Restrictive Covenants — Public Policy.
    Private residential restrictive covenants, if established by proper instruments, are favored by public policy.
    Dissent by McGregor, J.
    4. Covenants — Restrictive Covenants — Single Family Unit — Definition of Family.

      The word "family” denotes a concept the application of which is dependent upon the basis of affiliation of the group being analyzed along with the public policies invoked by the particular circumstances of the situation; six unrelated elderly women residing together in an adult foster care facility have a basis of affiliation in their mutual need for foster care and constitute a "single family unit” within the meaning of a deed restriction limiting the use of property to occupancy by a single family unit.

    5. Covenants — Restrictive Covenants — Public Policy — Foster Care Facilities.

      It is the conffrmed public policy of Michigan to provide adequate, regulated and safe foster care facilities for the elderly in residential neighborhoods, and, while the principle that restrictive covenants which violate public policy may not be enforced must be applied cautiously, that public policy outweighs the policy supporting the enforcement of residential restrictive covenants which would impede the establishment of residential homes for the elderly.

      Milmet, Vecchio, Kennedy & Carnago, P. C. (by Donald E. Schuster), for plaintiffs.

      Peter L. Conway, III, for defendants.
    Before: R. M. Maher, P. J., and J. H. Gillis and McGregor, JJ.

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

   J. H. Gillis, J.

Defendants appeal as of right from an order entered in Oakland County Circuit Court granting plaintiff’s motion for summary judgment. The judgment upheld the validity of a restrictive covenant and enjoined defendant Preston from using his residence as an adult foster care facility.

Plaintiff Charter Township of Waterford had intervened in the matter in an effort to enforce its zoning ordinance, but withdrew by stipulation of the parties due to the passage of MCL 125.286a; MSA 5.2963(16a) which provides that a state licensed residential facility providing supervision or care, or both, to six or fewer persons is a residential use of property for the purpose of zoning and a permitted use in all residential zones including those zoned for signle family dwellings.

The covenant in the deed to the property in question reads as follows:

"Jayno Heights Subdivision No. 1, shall be used for residential purposes exclusively, and no more than one single family dwelling house, with usual outbuilding for use in connection therewith, shall be erected or constructed on any lot in said subdivision and any residence so constructed shall be occupied by not more than one single family unit.”

The record reveals that defendant Preston built a single family dwelling house on a lot in the subdivision and then leased the property to defendants Evans and Goldsworthy. Defendants Evans and Goldsworthy then used the property to provide a home for elderly women. They are licensed under the Adult Foster Care Facility Licensing Act, MCL 331.681 et seq.; MSA 16.610(1) et seq.

On appeal, defendant contends that the restrictive covenant at issue has been complied with in that the occupants of the residence constitute one single family unit under Michigan law.

"The word 'family’ is one of great flexibility. In Carmichael v Northwestern Mutual Benefit Ass’n, 51 Mich 494, [16 NW 871 (1883)], it was said by Chief Justice Graves, speaking for the Court:
" 'Now this word "family,” contained in the statute, is an expression of great flexibility. It is applied in many ways. It may mean the husband and wife having no children and living alone together, or it may mean children, or wife and children, or blood relatives, or any group constituting a distinct domestic or social body. It is often used to denote a small select corps attached to an army chief, and has even been extended to whole sects, as in the case of the Shakers.
" 'We discover nothing in the statute implying a narrow sense, and we should not be inclined to attribute one where the result would cause injustice.’ ” Boston-Edison Protective Association v The Paulist Fathers, Inc, 306 Mich 253, 259; 10 NW2d 847 (1943).

The Court in Boston-Edison, supra, construed a restrictive covenant which stated that "[t]he said party of the second part (she) shall not use or occupy said lots except for a single dwelling house and dwelling house purposes only.” Boston-Edison Protective Association, supra, at 256. The Court held that use of a six bedroom home by five priests of the Paulist Fathers for private residential purposes did not violate the restrictive covenant.

However, Boston-Edison and its definition of family does not apply here.

The restrictive covenant in the instant case specifically limits the occupation of the residence to not more than one single family unit. The restrictive covenant in Boston-Edison is silent in respect to who shall occupy the dwelling.

Moreover, the dwelling at issue in the instant case is being used for commercial purposes while the Paulist Fathers in Boston-Edison made no commercial use of their residence. There is nothing in the record to indicate that the residents of the property at issue are anything more than a group of unrelated individuals sharing a common roof. Accordingly, we cannot conclude that the property in this case is being used by a single family unit.

Defendants also argue that public policy forbids the enforcement of the restrictive covenant. Defendants direct us to the recent change in the township zoning act which defines adult foster care facilities as single family residences for purposes of zoning ordinances. MCL 125.286a; MSA 5.2963(16a). While this statute certainly expresses public policy, the Michigan Supreme Court has held that definitions employed in housing codes and zoning ordinances do not control the interpretation of restrictive covenants. Phillips v Lawler, 259 Mich 567; 244 NW 165 (1932), Morgan v Matheson, 362 Mich 535, 541; 107 NW2d 825 (1961), cf. Karpenko v Southfield, 75 Mich App 188, 193, n 3; 254 NW2d 839 (1977).

In addition, the township zoning act, supra, is expressly directed towards zoning restrictions, not private restrictive covenants.

"In order to implement the policy of this state that persons in need of community residential care shall not be excluded by zoning from the benefits of normal residential surroundings, a state licensed residential facility providing supervision or care, or both, to 6 or less persons shall be considered a residential use of property for the purposes of zoning and a permitted use in all residential zones, including those zoned for single family dwellings, and shall not be subject to a special use or conditional use permit or procedure different from those required for other dwellings of similar density in the same zone.” (Emphasis supplied.) MCL 125.286a(2); MSA 5.2963(16a)(2).

A careful reading of the statute reveals that the Legislature did not intend to impinge upon the enforcement of private deed restrictions. Private deed restrictions are contractual rights and should not be impaired by state legislative action absent the lawful exercise of the police power. See Spitzer v Brown, 305 Mich 455; 9 NW2d 673 (1943).

We find no such exercise of the police power by the Legislature in respect to private restrictive covenants. We also note that private residential restrictions, if established by proper instruments, are favored by public policy. See Oosterhouse v Brummel, 343 Mich 283; 72 NW2d 6 (1955).

This Court does not believe that the public policy in favor of providing adult foster care facilities, under the facts of this case, outweighs the public policy favoring the rights of property owners to restrict the use of their property to single family dwellings occupied by single family units.

Affirmed. Costs to plaintiffs.

R. M. Maher, P. J., concurred.

McGregor, J.

(dissenting). Defendants appeal as of right from the trial court’s order granting plaintiffs motion for summary judgment. In granting that motion, the court enjoined defendant Preston from using his residence in the Jayno Heights Subdivision as an adult foster care facility. The trial court based its decision on the language of a restrictive covenant contained in the deed to the property in question which limited the use of the property to a single family residence. I respectfully dissent from my brothers’ affirmance of the decision below.

The restrictive covenant in question provides that:

"Jayno Heights Subdivision No. 1, shall be used for residential purposes exclusively, and no more than one single family dwelling house, with usual outbuilding for use in connection therewith, shall be erected or constructed on any lot in said subdivision and any residence so constructed shall be occupied by not more than one single family unit.”

Defendant Preston built a single family dwelling house on his lot and leased the property to defendants Evans and Goldsworthy who used the structure to provide a home for six elderly women. They are licensed under the Adult Foster Care Facility Licensing Act, MCL 331.681 et seq.; MSA 16.610(1) et seq.

Plaintiff, Jayno Heights Landowners Association, brought this action to enjoin defendants’ use of the property in question as a foster care facility alleging that this use violated the restrictive covenant. Plaintiff Charter Township of Waterford had intervened in an effort to enforce its zoning ordinance, but withdrew by stipulation due to the passage of MCL 125.286a; MSA 5.2963(16a), which provides that a state licensed residential facility providing supervision or care, or both, to six or fewer persons is a permitted, residential use of property for the purposes of zoning.

On appeal, defendants argue that a group of six elderly women living in a licensed adult foster care facility should be construed as a family for purposes of this restrictive covenant and that, in any event, enforcement of this restrictive covenant violates the public policy enunciated in Const 1963, art 8, § 8, and the Adult Foster Care Facility Licensing Act, MCL 331.681 et seq.; MSA 16.610(1) et seq., favoring the provision of regulated and safe foster care for the elderly in a residential environment. Since I agree with both contentions, I would reverse.

In the recent case of Bellarmine Hills Ass’n v The Residential Systems Co, 84 Mich App 554; 269 NW2d 673 (1978), another panel of this Court reversed an order of the trial court enjoining defendants’ use of a residence for the treatment of six or fewer mentally retarded children living with a resident foster parent and licensed by the Department of Social Services pursuant to the child care organizations act, MCL 722.111, et seq.; MSA 25.358(11) et seq. A restrictive covenant contained in the deed to the lot in question provided, in terms similar to those contained in the covenant in the instant case, that the property could be used only for one single private family dwelling. In reversing the decision below, the Court held that the children and foster parent living in defendant’s home constituted a family for purposes of the restrictive covenant.

The Bellarmine Court described the policy conflict between enforcing the covenant and permitting the described use of the property before reaching the basis of its decision:

"Unquestionably, promoting the development and maintenance of quality programs and facilities 'for the care and treatment of the mentally handicapped is a settled public policy of our state. That policy has both a constitutional and legislative foundation. But we must also recognize that restrictive covenants may constitute valuable property rights. Kaplan v Huntington Woods, 357 Mich 612, 617; 99 NW2d 514 (1959), Monroe v Menke, 314 Mich 268, 273; 22 NW2d 369 (1946). Further, it has been the policy of our judiciary to protect property owners who have complied with the restrictions from violations of the covenants by others. Wood v Blancke, 304 Mich 283, 287-288; 8 NW2d 67 (1943).” (Footnotes omitted.) 84 Mich App at p 558.

The Court then discussed the legal definition of the term "family”:

"Concerned with the legal definition of family, our Supreme Court, in the seminal case of Carmichael v Northwestern Mutual Benefit Ass’n, 51 Mich 494, 496; 16 NW 871 (1883), stated:
" 'Now this word "family”, contained in the statute, is an expression of great flexibility. It is applied in many ways. It may mean the husband and wife having no children and, living alone together, or it may mean children, or wife and children, or blood relatives, or any group constituting a distinct domestic or social body. It is often used to denote a small select corps attached to an army chief, and has even been extended to whole sects, as in the case of the Shakers.’
"Our examination of subsequent cases and authority from other jurisdictions discloses no more specific definition of the term. Rather, the word family denotes a concept, the application of which is dependent upon the basis of affiliation of the group being analyzed juxtaposed with the public policies invoked by the particular circumstances of the case being reviewed.
"The basis of affiliation in the case under consideration is the mutual need of the children for expert treatment of their mental retardation. We have previously noted the momentous public policy supporting that endeavor. Defendants have afforded treatment to the children in an atmosphere that enables them to retain the benefits of residing in a household, instead of an institution. Further, parents of mentally retarded children may be encouraged to seek professional care for their children, knowing that they will reside in a homelike environment in lieu of being 'institutionalized’.” 84 Mich App at p 561.

I would conclude for similar reasons that six unrelated elderly women residing together in an adult foster care facility constitute "one single family unit” within the meaning of the restrictive covenant in question. The basis of affiliation of these elderly women is their mutual need for foster care. By providing these services in a small dwelling in a residential community, defendants are preserving for their patients many of the benefits of family life which are absent in more institutionalized settings. There is a powerful public policy which supports this use of the property. For these reasons, the use of defendant Preston’s home as an adult foster care facility should be permitted.

In reversing the trial court’s decision below, however, I would not rely solely on the legal status of the group of women concerned. While private residential restrictions established by proper instruments are favored by public policy, such restrictions must not violate a sound public policy. Oosterhouse v Brummel, 343 Mich 283; 72 NW2d 6 (1955). The principle that contracts in contravention of public policy are not enforceable, however, should be applied with caution. Sipes v McGhee, 316 Mich 614; 25 NW2d 638 (1947).

Const 1963, art 8, § 8, provides that:

"Institutions, programs and services for the care, treatment, education or rehabilitation of those • inhabitants who are physically, mentally or otherwise seriously handicapped shall always be fostered and supported.”

The preface to the Adult Foster Care Facility Licensing Act, MCL 331.681 et seq.; MSA 16.610(1) et seq., provides that it is:

"AN ACT to provide for the licensing and regulation of adult foster care facilities providing alternate care services including room and board, supervision, assistance, protection and personal care to adults not requiring organized institutional medical or nursing care; and to provide penalties for violations of this act.”

Section 5 of that act provides that "[a]n adult foster care facility shall not be licensed to care for more than 6 adults of age 65 or older”. Section 8, subsection 1, provides further that a license shall not be granted under the act when this would "substantially contribute to an excessive concentration of community residential facilities” within any community in the state.

Finally, MCL 125.286a(2); MSA 5.2963(16a)(2) states:

"In order to implement the policy of this state that persons in need of community residential care shall not be excluded by zoning from the benefits of normal residential surroundings, a state licensed residential facility providing supervision or care, or both, to 6 or less persons shall be considered a residential use of property for the purposes of zoning and a permitted use in all residential zones, including those zoned for single family dwellings, and shall not be subject to a special use or conditional use permit or procedure different from those required for other dwellings of similar density in the same zone.”

Subsection 1 of that provision provides that a "state licensed residential facility” is a residential structure licensed by the state pursuant to MCL 331.681; MSA 16.610(1) or MCL 722.111; MSA 25.358(11).

It is apparent from the above-cited constitutional and statutory language that it is the confirmed public policy of this state to provide adequate, regulated and safe foster care facilities for the elderly in residential neighborhoods throughout the state. The Legislature’s use of a six person limitation in § 5 of the Adult Foster Care Facility Licensing Act reveals its intent to promote facilities of a small, familial nature. That the Legislature intended that such facilities be located in residential communities is beyond question in light of § 8’s prohibition of excessive concentrations of such facilities in any given community. And, while MCL 125.286a; MSA 5.2963(16a) deems such facilities the residential use of property for the purposes of zoning without mentioning restrictive covenants, this law reiterates the public policy favoring the establishment of such facilities.

In applying with the utmost caution the principle that restrictive covenants which violate public policy may not be enforced, I would find that the public policy favoring the establishment of residential adult foster care facilities outweighs the policy supporting the enforcement of residential restrictive covenants and that the covenant in question may not be enforced to enjoin defendants’ use of this property as a licensed foster care facility. In reaching this result, it should be noted that the balance between the competing policies in this case is exceedingly close and that MCL 331.688(1); MSA 16.610(8)(1) serves to prohibit the excessive concentration of such facilities in any community. Residential homeowners are therefore protected from any detriments which may result from such a situation.

       MCL 125.286a; MSA 5.2963(16a).

       Defendants admit that the residents pay for various domestic services as well as rent and further admit that defendant Preston receives lease payments from defendants Evans and Goldsworthy at the rate of $6,000 per year.


author: D. E. Holbrook, Jr., P. J.

text:
    PERRY v TELEDYNE CONTINENTAL MOTORS CORPORATION
    Docket No. 77-2670.
    Submitted June 13, 1978, at Grand Rapids.
    Decided September 5, 1978.
    Leave to appeal applied for.
    Harry Perry was awarded worker’s disability compensation benefits for a work-related pulmonary disability while employed by Continental Motors Corporation and its successor Teledyne Continental Motors Corporation. The Workmen’s Compensation Appeal Board entered an order which apportioned liability for wage benefits between the corporations but which failed to apportion liability for medical benefits. Teledyne Continental and Argonaut Insurance, its insurance carrier, appeal. The question on appeal is whether the apportionment of liability statute provides for the apportionment of back wage benefits and medical benefits between the employers. Held:

    The apportionment of liability statute encompasses back wage benefits and medical benefits and both wage and medical benefits are apportionable between the employer corporations.
    Remanded to the Workmen’s Compensation Appeal Board for entry of an order apportioning medical benefits.
    Workmen’s Compensation — Employer Liability — Wage and Medical Benefits — Apportionment Statutes.
    The last employer, and all prior employers, for whom an injured employee has worked under conditions similar in nature to those from which his disease arose are proportionately liable for the payment of both wage benefits and medical benefits under the statute providing for apportionment of an employer’s liability (MCL 418.435; MSA 17.237[435]).
    Reference for Points in Headnote
    82 Am Jur 2d, Workmen’s Compensation §§ 408, 409.

      McCroskey, Libner, Van Leuven, Feldman, Kortering, Cochrane & Brock (by Timothy J. Bott), for plaintiff.

      Cholette, Perkins & Buchanan (by Edward D. Wells), for defendants.

      Before: D. E. Holbrook, Jr., P. J., and T. M. Burns and W. Van Valkenburg, JJ.

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

   D. E. Holbrook, Jr., P. J.

Plaintiff was awarded worker’s disability compensation benefits for a work-related pulmonary disability contributed to by extended occupational exposure to atmospheric irritants while employed by defendant-appellee Continental Motors Corporation and its successor corporation, defendant-appellant Teledyne Continental Motors Corporation. The appeal board entered an order which apportioned between defendants liability for wage benefits, but which failed to apportion liability for medical benefits.

Defendant-appellant appeals, by leave granted, asserting that the applicable statute, MCL 418.435; MSA 17.237(435), provides for apportionment of liability for both wage benefits and medical benefits.

MCL 418.435; MSA 17.237(435) provides in pertinent part:

"The total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted. If any dispute or controversy arises as to the payment of compensation or as to liability therefor, the employee shall give notice to and make claim upon the last employer only and apply for a hearing against the last employer only. If the employee was employed by prior employers in an employment to the nature of which the disease was due and in which it was contracted, the hearing referee to whom the case is assigned or the director on motion made in writing by the last employer shall join any or all prior employers, mentioned in the motion, as parties-defendant. A 'prior employer’, for purposes of this section, means an employer who has employed the employee for 6 months or longer during the 10 years preceding the date upon which the employee was last subjected to the conditions resulting in disability. * * * The hearing referee shall enter an order determining liability for compensation as between the employee and the last employer. The hearing referee shall apportion liability for compensation among the several employers in proportion to the time that the employee was employed in the service of each employer in the employment to the nature of which the disease was due and in which it was contracted and shall enter a separate order in favor of the last employer and against prior employers for their proportionate share of liability, which order may be enforced in the same manner as an award for compensation. Any order so entered may be appealed by any party and shall be reviewed in accordance with the procedure provided in this act.”

We believe that it was the clear intent of the Legislature in enacting this statute that each employer assume its fair share of responsibility concomitant to receiving the employee’s services. Derwinski v Eureka Tire Co, 79 Mich App 750, 754; 263 NW2d 30 (1977). An employer is responsible for both wage and medical benefits. We, therefore, construe the term "compensation” as used in the above-quoted statute to encompass both wage benefits and medical benefits, and hold that both wage and medical benefits are apportionable. Dornbos v Block & Guggenheimer, Inc, 326 Mich 626; 40 NW2d 749 (1950), provides inferential support for this result. See, also, Wehmeier v W E Wood Co, 377 Mich 176; 139 NW2d 733 (1966), Lahti v Fosterling, 357 Mich 578; 99 NW2d 490 (1959), Munson v Christie, 270 Mich 94; 258 NW 415 (1935).

Remanded to the appeal board for entry of an order apportioning medical benefits not inconsistent with this opinion. No costs. Interpretation of a statute involved.


author: J. H. Gillis, J. R. M. Maher, P. J.

text:
    PEOPLE v JORDAN
    Docket No. 77-3178.
    Submitted June 22, 1978, at Detroit.
    Decided September 5, 1978.
    Alvin Jordan was convicted, on his plea of guilty, of attempted possession of heroin and sentenced to a prison term of 1 year, 11 months to 2 years, Wayne Circuit Court, Richard D. Dunn, J. The defendant appeals, claiming that he was denied his right of allocution prior to sentencing and that the indeterminate sentence with a minimum sentence exceeding two-thirds of the maximum sentence was improper. Held:

    1. The record supports the defendant’s claim that he was denied his right of allocution.
    2. The indeterminate sentence act did not apply to the defendant because the defendant had prior felony convictions.
    Remanded.
    R. M. Maher, P. J., dissented in part. He would hold that the indeterminate sentence act does apply to the defendant’s situation since the defendant was a repeat offender and not a habitual offender.
    Opinion of the Court
    1. Criminal Law — Sentences—Right of Allocution — Court Rules.
    A case should be remanded for resentencing with a defendant having the right to advise the court of any circumstances he believes the court should consider in imposing sentence where there is ample support in the record for the defendant’s allegation that he was denied his right of allocution prior to sentencing (GCR 1963, 785.8[2]).
    2. Criminal Law — Sentences—Indeterminate Sentence Act— Prior Felony Convictions — Statutes.
    The indeterminate sentence act applies only to one convicted of a crime for the first time; it does not apply to a defendant who has prior felony convictions; therefore, an indeterminate sentence whereby the minimum sentence exceeds two-thirds of the maximum sentence is not improper where the defendant has a prior felony conviction (MCL 769.8; MSA 28.1080).

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 530.
    Necessity and sufficiency of question to defendant as to whether he has anything to say why sentence should not be pronounced against him. 96 ALR2d 1292.
    [2, 3] 21 Am Jur 2d, Criminal Law §§ 540, 581, 592, 614.

      Partial Concurrence, Partial Dissent by R. M. Maher, P. J.
    3. Criminal Law — Sentence—Indeterminate Sentence Act — Repeat Offender — Habitual Offender — Statutes.

      The indeterminate sentence act applies to a defendant who is a repeat offender rather than an habitual offender; therefore, an indeterminate sentence whereby the minimum sentence exceeds two-thirds of the maximum sentence is improper for a defendant who is a repeat offender and not an habitual offender (MCL 769.8; MSA 28.1080).

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

      William R. McFadden, for defendant on appeal.
    Before: R. M. Maher, P. J., and J. H. Gillis and McGregor, JJ.

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

   J. H. Gillis, J.

Defendant does not appeal from his July 11, 1977, plea-based conviction of attempted possession of heroin contrary to MCL 750.92, 335.341(4)(a); MSA 28.287, 18.1070(41)(4)(a), wherein he was sentenced to a prison term of 1 year, 11 months, to 2 years. He does, however, appeal from the sentence, alleging that he was denied his right of allocution prior to sentencing in conformity with GCR 1963, 785.8(2) and he further contends that the minimum prison sentence of 1 year, 11 months, violates People v Tanner, 387 Mich 683; 199 NW2d 202 (1972).

There is ample support in the record for his first argument, and, therefore, we would remand the case for resentencing with the defendant having the right to advise the court of any circumstances he believes the court should consider in imposing sentence.

Inasmuch as the indeterminate sentence act (MCL 769.8; MSA 28.1080) only applies to one convicted of a crime for the first time, it does not apply to the instant case wherein the defendant had prior felony convictions. Defendant’s sentence is therefore controlled by People v Banks, 73 Mich App 492; 252 NW2d 501 (1977). Accordingly, the trial court did not err in setting defendant’s sentence at 1 year, 11 months to 2 years.

Remanded for proceedings consistent with this opinion.

McGregor, J., concurred.

R. M. Maher, P. J.

(concurring in part; dissenting in part). An examination of the record indicates that the trial judge failed to comply substantially with GCR 1963, 785.8(2), 785.9. I agree, therefore, that this case should be remanded to the trial court for resentencing in conformance with, these court rules. See People v Elijah Smith, 68 Mich App 551; 243 NW2d 681 (1976).

However, since defendant was a repeat offender and not an habitual offender, I believe that the indeterminate sentence act does apply to his situation and that his minimum prison sentence of 1 year and 11 months therefore violates People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). See People v Redwine, 73 Mich App 83; 250 NW2d 550 (1976), People v Reginald Harris, 80 Mich App 228; 263 NW2d 40 (1977), and People v Reese, 83 Mich App 186; 268 NW2d 340 (1978).

Accordingly I would remand to the trial court for allocution and resentencing in accordance with People v Tanner, supra.


author: McGregor, J.

text:
    PEOPLE v RITCHIE
    Docket No. 77-3251.
    Submitted June 21, 1978, at Detroit.
    Decided September 5,1978.
    Marvin J. Ritchie was charged with armed robbery and receiving and concealing stolen property. These charges arose out of his alleged use of a stolen automobile and his alleged participation in an armed robbery. A witness, Michael Davis, testified that he was robbed by defendant and his partner and that they left in a blue Monte Carlo automobile. The defendant was convicted of the receiving and concealing stolen property charge and found not guilty of armed robbery, Recorder’s Court of Detroit, George W. Crockett, III, J. The trial judge disregarded defendant’s objection to joinder of the charges, refused to suppress a prior conviction for receiving and concealing stolen property and ruled that cross-examination would be open as to both charges in the event defendant took the stand. The defendant appeals claiming that the joinder of charges against him was prejudicial because it resulted in the admission of evidence which could not have been presented at separate trials and that the joinder of charges and the trial court’s refusal to limit cross-examination "chilled” the exercise of his constitutional right to testify as to one charge but not as to the other. Held:

    1. The armed robbery and receiving and concealing a stolen automobile charges were improperly joined for trial. The only fact which served to connect the two offenses was defendant’s alleged use of the stolen automobile in leaving the scene of the armed robbery. There was no proof that the vehicle was used as a getaway car and no common scheme established which would connect the charged offenses.

      References for Points in Headnotes
    [1, 2, 4] 41 Am Jur 2d, Indictments and Informations §§ 213, 226.
    [2, 4, 6] 41 Am Jur 2d, Indictments and Informations §§ 292, 293.
    75 Am Jur 2d, Trial §§ 7-9, 17-20.
    [3] 41 Am Jur 2d, Indictments and Informations §§ 210-212.
    [5] 29 Am Jur 2d, Evidence §§ 320, 321, 323-326.
    Admissibility, at trial of criminal case, of evidence of defendant’s criminal acts other than those charged — Supreme Court cases. 93 L Ed 185.
    [6] 21 Am Jur 2d, Criminal Law § 349 et seq.

      2. Witness Davis’s testimony to the effect that he had observed defendant driving the stolen automobile would have been admissible at a separate trial of defendant on the receiving and concealing charge but his statements concerning the alleged armed robbery would not; therefore, Davis’s testimony was prejudicial and inadmissible in a trial where armed robbery and receiving and concealing charges have been joined.
    3. The court’s refusal to limit cross-examination of the defendant to a single charge was error and an infringement of defendant’s constitutional right to testify in his own behalf. The threat of open cross-examination on both charges may have interfered with the free exercise of defendant’s right not to take the stand.
    Reversed.
    1. Indictment and Information — Trial—Joinder of Offenses— Same Transaction Test.
    Joinder of several distinct charges against a defendant does not prejudice his defense or require a trial court to quash or compel an election between offenses where the charges arise out of substantially the same transaction or are so connected in their facts as to constitute parts of the same transaction.
    2. Criminal Law — Indictment and Information — Trial—Joinder of Offenses — Motion for Severance — Same Conduct Test— Scheme or Plan — Judge’s Discretion.
    A trial judge must sever two or more offenses when the offenses have been joined for trial solely on the ground that they are of the same or similar character and the defendant files a timely motion for severance objecting to the joinder; a judge has no discretion to permit the joinder for trial of separate offenses committed at different times unless the offenses are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.
    3. Criminal Law — Trial—Joinder of Offenses — Joinder of Defendants — Charges and Proofs.
    Joinder of multiple criminal charges against two or more defendants is permissible where (1) there is a significant overlapping of issues and evidence, (2) the charges constitute a series of events, and (3) there is a substantial inter-connectedness between parties defendant, the trial proofs, and the factual and legal bases of the crimes charged.

      4. Criminal Law — Trial—Joinder of Offenses — Evidence.
    An armed robbery charge and a receiving and concealing stolen property charge involving a stolen automobile should not have been joined for trial where the only fact which served to connect the two offenses was defendant’s alleged use of the stolen vehicle in leaving the scene of the armed robbery, without proof that the vehicle was used as a getaway car, and no common scheme was established which would connect the charged offenses.
    5. Criminal Law — Evidence—Other Bad Acts — Admissibility— Prejudicial Effect.
    Evidence of a defendant’s other bad acts is generally inadmissible because its probative value is outweighed by the likelihood that it will prejudice the jury against the defendant, preventing an objective determination of the disputed factual issues; a defendant’s other bad acts may be admitted into evidence as an exception to this rule if (1) there is substantial evidence that defendant actually perpetrated the bad act sought to be introduced, (2) there are some special circumstances of the prior bad act which tend to prove that the facts or circumstances of the' other bad acts are probative of the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system in committing the charged offense, and (3) defendant’s motive, intent, absence of mistake or accident, scheme, plan or system is material to the determination of defendant’s guilt of the charged offense (MCL 768.27; MSA 28.1050).
    6. Criminal Law — Constitutional Law — Right to Testify — Joinder of Offenses — Cross-Examination.
    Every criminal defendant is privileged to testify in his own defense, or to refuse to do so; a defendant’s constitutional right to testify in his own behalf was infringed where there was an improper joinder of criminal charges coupled with a trial court’s refusal to limit cross-examination of the defendant to the charge to which he could have testified at a separate trial.

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

      Riley & Roumell (by Robert J. Colombo, Jr.), for defendant on appeal.
    Before: R. M. Maher, P. J., and J. H. Gillis and McGregor, JJ.

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

   McGregor, J.

Defendant Marvin Joe Ritchie was charged with receiving or concealing stolen property contrary to MCL 750.535; MSA 28.803 in an information dated January 22, 1977. Prior to trial, the prosecutor moved to consolidate that case with a charge of armed robbery contrary to MCL 750.529; MSA 28.797 and to consolidate those charges against defendant with a charge of armed robbery against one Robert Johns. A jury found defendant guilty of receiving and concealing stolen property and not guilty of armed robbery. Co-defendant Johns was acquitted. Defendant was sentenced to a term in prison of not less than 40 months nor more than 60 months and now appeals as of right.

The charges against defendant arose out of his alleged use of a stolen automobile and his alleged participation in an armed robbery. The complainant as to the receiving or concealing charge, Louis Manuel Diaz, described a blue Monte Carlo automobile, license number DJR-279, which was taken without his permission on January 17, 1977, from the alley in which he had parked it. Prior to discovering that the car was gone, Mr. Diaz realized that he did not have his car keys.

The arresting officer testified that he and his partner were on routine patrol when they observed the defendant getting behind the steering wheel of a blue Monte Carlo, license number DJR-279. At the same time, two other men, codefendant Johns and a man named Dean, were walking in the direction of the automobile. Dean was carrying a handgun. The defendant was patted down and relieved of the keys to the stolen car.

The complainant as to the armed robbery charge, Michael Davis, testified that the defendant and codefendant Johns arrived at his house on January 19, 1977, pointed guns at him and demanded money. They then left in a blue Monte Carlo, the license number of which Davis described to police as DJR-279.

The defendant’s brother, Jack Wright, testified that the keys to the stolen car were not taken from his brother. Instead, said Wright, he had taken the keys from the car, thinking it belonged to a neighbor who had left it running, and had given them to the police.

Prior to selection of a jury, defense counsel moved to suppress the defendant’s criminal record in the event that the defendant wished to testify and indicated that the defense objected to the joinder of the charges against defendant on the grounds, inter alia, that prior convictions unrelated to one of the charged offenses but related to the other might come in whereas such related convictions would not be allowed at separate trials. The trial court refused to suppress a prior conviction for attempted receiving and concealing and disregarded the objection to joinder.

Defendant’s counsel also asked the court to limit cross-examination, in the event defendant took the stand and was questioned on direct as to one charge only, to his testimony on that charge. The trial court ruled that cross-examination would be open and, when defense counsel noted this on the record as a further reason for the defense objection to the joinder of charges, the trial judge adopted the prosecutor’s theory that the two charges were part of the same transaction or series of transactions.

Defendant asserts on appeal that the joinder of charges against him was prejudicial because it resulted in the admission of evidence which could not have been presented at a separate trial on the receiving or concealing charge and because it "chilled” defendant’s exercise of his constitutional right to testify as to one charge but not as to the other.

In People v Johns, 336 Mich 617; 59 NW2d 20 (1953), the Court ruled that the joinder of several distinct charges against a defendant will not prejudice his defense or require the trial court to quash or compel an election where the charges arise out of substantially the same transaction or are so connected in their facts as to constitute parts of the same transaction.

"It is to be noted that this Court has emphasized that the offenses charged in the several counts must arise out of substantially the same acts committed at the same time.” 336 Mich at 623.

In People v Tobey, 401 Mich 141; 257 NW2d 537 (1977), the Court held that a trial judge must sever two or more offenses when they have been joined for trial solely on the ground that they are of the same or similar character and defendant files a timely motion for severance objecting to the joinder.

" * * * a judge has no discretion to permit the joinder for trial of separate offenses committed at different times unless the offenses 'are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.’ ” 401 Mich at 153.

Although the relevant facts in the case of People v Slate, 73 Mich App 126; 250 NW2d 572 (1977), which involved the joinder of multiple defendants on charges of armed robbery and receiving and concealing the goods taken in that theft, are distinguishable from those in the case at bar, we find that decision instructive in its discussion of the requisite connection between offenses properly joined for trial.

"In the case at bench, the application of these legal rules to the facts persuades this Court that there was present a significant overlapping of issues and evidence at the trial below in relation to the two charges of robbery armed and receiving and concealing stolen property. There was certainly substantial and significant 'inter-connectedness’ between the parties-defendant, the trial proofs, and the factual and legal bases of the crimes charged. In fact, it can reasonably be inferred from the evidence presented at trial that the two charges constituted a 'series of events’ within the meaning of the relevant Federal joinder rule (Rule 8[b]), the reasoning of which has been adopted and approved by this Court in the Billingslea case.
"In the instant case, we are presented with an initial stealing (robbery) of goods by two defendants and subsequently a receiving and concealing of said stolen goods by all three defendants. The same stolen jewelry, or evidence relating thereto, which was necessarily involved in the robbery armed charges was also necessarily involved in the receiving and concealing charges. This would have been true even if the charges had not been jointly tried * * * Thus, the same or necessarily similar evidence and proofs could properly have been placed against defendant Slate in a separate trial as were actually placed into evidence here at the complained of joint trial.” 73 Mich App at 134-136.

The only fact which served to connect the two offenses charged in the instant case, on the other hand, was defendant’s alleged use of the stolen vehicle in leaving the scene of the armed robbery of Mr. Davis. It was not shown at trial that defendant acquired the stolen vehicle which was the subject of the receiving or concealing charge for use as a "getaway” car in the armed robbery. Nor was any common scheme established which could connect the two offenses charged. Thus, although defendant’s use of the stolen car and his participation in the alleged robbery occurred at the same time and were subject to proof by similar evidence, we conclude that joinder of the charges was improper under the rule stated in Johns, supra.

Furthermore, while Mr. Davis’s testimony to the effect that he had observed the defendant driving this stolen automobile would have been admissible at a separate trial of defendant on the receiving and concealing charge, his statements concerning the alleged armed robbery would not.

"In Michigan, evidence of a defendant’s other bad acts is generally inadmissible because its probative value is outweighed by the likelihood that it will prejudice the jury against the defendant, preventing an objective determination of the disputed factual issues. People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976), People v Der Martzex, 390 Mich 410; 213 NW2d 97 (1973).
" 'This rule of law guards against convicting an accused person because he is a bad man. Barring such evidence prevents the trier of fact from inferring that the accused person is guilty of the charged offense because he has committed other similar acts or crimes.’ People v Matthews, 17 Mich App 48, 52; 169 NW2d 138 (1969).” People v Wilkins, 82 Mich App 260, 265; 266 NW2d 781 (1978).

"Similar acts” evidence may be admissible under the exception stated in MCL 768.27; MSA 28.1050 if 1) there is substantial evidence that defendant actually perpetrated the bad act sought to be introduced; 2) there are some special circumstances of the prior bad act which tend to prove one of the statutory items; and 3) defendant’s motive, intent, absence of mistake or accident, scheme, plan or system is material to the determination of defendant’s guilt of the charged offense. People v Adan, 83 Mich App 326, 331; 268 NW2d 397 (1978).

Although Mr. Davis’s testimony constituted substantial evidence that defendant committed the armed robbery and defendant’s use of the stolen vehicle in leaving the scene of that crime tended to establish his guilt on the receiving and concealing charge by showing possession, the third requirement plainly was not satisfied. The admission of Davis’s testimony concerning the armed robbery at a separate trial on the receiving charge therefore would have been erroneous. Since the jury acquitted defendant of armed robbery, however, apparently disbelieving Davis’s testimony, we are inclined to consider that error harmless even though the prejudicial effect of the improperly admitted evidence apparently outweighed its probative value. Thus, the use of that evidence at the joint trial below was not, in itself, cause for reversal.

Since we find substance in defendant’s second claim of prejudice, however, we need not rely on this evidentiary matter to reverse his conviction and remand for a new trial. In Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971), the United States Supreme Court stated that "every criminal defendant is privileged to testify in his own defense, or to refuse to do so”. We conclude that joinder of these charges against defendant and the trial court’s refusal to limit cross-examination of defendant to the charge about which he might have testified at trial impermissibly infringed his constitutional right to testify in his own behalf. At the same time, since the defendant’s failure to testify may have resulted from the threat of open cross-examination rather than the free exercise of his right not to take the stand, he was also denied his constitutional right not to testify. For this reason, the conviction is reversed.

Reversed.