text:
    ATTORNEY GENERAL v RAGUCKAS
    Docket No. 31216.
    Submitted March 8, 1978, at Lansing.
    Decided July 14, 1978.
    Leave to appeal applied for.
    The Attorney General brought an action against Jonas Raguckas, D. C., and Marie Raguckas, D. C., licensed chiropractors, to enjoin them from the unauthorized practice of medicine. Specifically, the acts complained of were the dispensing of drugs and the use of acupuncture. The Michigan Chiropractic Council intervened as a plaintiff. The Attorney General also brought an action against Gerald J. Hall charging him with unauthorized diagnosis. The two cases were consolidated and tried together. The Ingham Circuit Court, Thomas L. Brown, J., granted summary judgment in favor of plaintiff and issued an injunction prohibiting defendants from dispensing drugs, performing acupuncture, and performing diagnostic tests other than those authorized by statute. Defendants Raguckas appeal. Held:

    1. The action was properly brought in the circuit court. The doctrine of "primary jurisdiction”, which would bar a suit until after review of the matter by the proper administrative agency, is not applicable under the circumstances of the case.
    2. Chiropractors, as a matter of law, are not authorized to dispense drugs to their patients or to practice acupuncture.
    3. Two portions of the injunctive order dealing with diagnostic procedures and advertising applied only to defendant Hall who has taken no appeal. Because those portions do not apply to the appellants, they are set aside.
    Affirmed in part, reversed in part.
    1. Administrative Law — Courts—Jurisdiction—Primary Jurisdiction — Judge’s Discretion.
    Application of the doctrine of "primary jurisdiction”, which operates to bar a suit until after the proper administrative agency has reviewed the matter, is largely discretionary with the trial judge; exceptions to the doctrine are recognized when the situation requires immediate equitable intervention or where administrative remedies are not sufficient.

      References for Points in Headnotes
    [1] 2 Am Jur 2d, Administrative Law §§ 596, 788-797.
    The doctrine of primary administrative jurisdiction — Supreme Court cases. 1 L Ed 2d 1596.
    [2-4] 61 Am Jur 2d Physicians, Surgeons, and Other Healers § 23.

      2. Courts — Circuit Court — -Jurisdiction—Administrative Law— Chiropractors — Unauthorized Practice of Medicine.
    A suit to enjoin the unauthorized practice of medicine by chiropractors was properly commenced in circuit court without first referring the matter to the Board of Chiropractic Examiners where that board had already expressed an opinion in respect to the use of the techniques at issue, an opinion that appears to conflict with the statutory and common law definition of the chiropractic profession, where the activity complained of created an imminent threat to the general public, and where one of the chiropractors involved, and her attorney, are both members of the Board of Chiropractic Examiners.
    3. Physicians and Surgeons — Chiropractors—Dispensing of Drugs —Statutes.
    Chiropractors, as a matter of law, are not authorized to dispense drugs to their patients; such an authorization is not intended in the language of a statute regulating the practice of chiropractic which includes within the practice "procedure preparatory to” the manual adjustment of vertebrae (MCL 338.156; MSA 14.596).
    4. Physicians and Surgeons — Chiropractors—-Acupuncture.
    Chiropractors, as a matter of law, are not authorized to perform acupuncture.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Patrick F. Isom, Assistant Attorney General, for plaintiff.

      Farhat, Burns & Story (by Vittorio E. Porco), for the Michigan Chiropractic Council.

      Durant & Card, for defendants.
    Before: D. E. Holbrook, Jr., P. J., and Allen and S. Everett, JJ.

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

   Per Curiam.

Plaintiff Attorney General commenced this action in Ingham County Circuit Court on September 4, 1975, seeking to enjoin defendants, licensed chiropractors in Garden City, from performing certain acts allegedly outside the scope of their profession. These acts included the dispensing of drugs and the use of acupuncture. Plaintiff contends that the aforesaid conduct amounted to the unlicensed practice of medicine and constituted a public nuisance which should be enjoined.

Defendants responded to plaintiffs complaint, admitting that they dispensed drugs and performed acupuncture in treating their patients. However, defendants contended that such techniques were within the scope of chiropractic and that the scope of the chiropractic profession should be determined by the State Board of Chiropractic Examiners.

On November 24, 1976, the trial court issued a final order granting plaintiffs motion for summary judgment and also issued a permanent injunction prohibiting defendants from dispensing drugs, performing acupuncture, and performing any diagnostic tests on patients except such tests as set forth in the Michigan chiropractic act. MCL 338.156; MSA 14.596. The Michigan Chiropractic Council intervened in the case by stipulation and order. Defendants now appeal as of right challenging the validity of the injunction.

I. Jurisdiction

Defendants first contend that plaintiff did not possess the authority to maintain the current action since the doctrine of "primary jurisdiction” prohibits such a suit until the proper administrative agency has reviewed the matter. The "primary jurisdiction” doctrine was set forth by this Court in White Lake Improvement Association v Whitehall, 22 Mich App 262, 280-282; 177 NW2d 473 (1970):

"The primary jurisdiction doctrine has been explained as follows:
" 'In cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts for specialization, by insight gained through experience, and by more flexible procedure.’ Far East Conference v United States, 342 US 570, 574, 575; 72 S Ct 492; 96 L Ed 576 (1952).
" 'The principal reason behind the doctrine of primary jurisdiction is not and never has been the idea that "administrative expertise” requires a transfer of power from courts to agencies, although the idea of administrative expertise does to some extent contribute to the doctrine. The principal reason behind the doctrine is recognition of the need for orderly and sensible coordination of the work of agencies and of courts. Whether the agency happens to be expert or not, a court should not act upon subject matter that is peculiarly within the agency’s specialized field without taking into account what the agency has to offer, for otherwise parties who are subject to the agency’s continuous regulation may become the victims of uncoordinated and conflicting requirements.’ 3 Davis, Administrative Law Treatise, § 19.01, p 5.”

As thus defined, "primary jurisdiction” is a flexible doctrine whose invocation is largely discretionary with the trial judge. Exceptions to the doctrine are recognized when the situation requires immediate equitable intervention or where the administrative remedies are not sufficient to give plaintiff the relief to which he or she is entitled. Such, we believe, is the case in the instant matter.

Abstention by the trial court while the Board of Chiropractic Examiners reviewed the scope of the chiropractic profession would accomplish very little. The Board of Chiropractic Examiners has already issued memoranda indicating that acupuncture is within the scope of the chiropractic act. MCL 338.157; MSA 14.597. The board had also indicated that it is their belief that a chiropractor may administer non-narcotic chemicals when treating a patient in order to suppress pain or render the spine and its surrounding bones and tissues more amenable to successful manipulative treatment. Hence, the Board of Chiropractic Examiners had already expressed their opinion in respect to the use by chiropractors of the techniques at issue in the instant case.

However, the board’s views in respect to these procedures appear to be in conflict with the statutory and common-law definition of the chiropractic profession. Accordingly, the present case is ripe for adjudication by the courts. It should also be noted that plaintiffs’ complaint alleged that defendants were engaged in the unauthorized practice of medicine contrary to MCL 338.1816(2); MSA 14.542(16)(2). Such activity created an imminent threat to the general public and warrants immediate equitable intervention if the requisite proofs are established by the complaining party. Further, defendant Marie Raguckas and the attorney who represented her in the trial court proceedings each are members of the Board of Chiropractic Examiners. To refer the scope of practice issue back to the board under the doctrine of primary jurisdiction is at best questionable. Accordingly, it is the opinion of this Court that the current suit was properly commenced in Ingham County Circuit Court.

II. Dispensation of Prescription Drugs

Defendants next contend that the trial court improperly interpreted the Michigan chiropractic act, MCL 338.156; MSA 14.596, in ruling that the act did not authorize chiropractors to dispense drugs or to perform acupuncture.

"The license provided for in this act shall entitle the holder thereof to practice chiropractic in the state of Michigan, and for the purpose of this act chiropractic is defined as 'the locating of misaligned or displaced vertebrae of the human spine, the procedure preparatory to and the adjustment by hand of such misaligned or displaced vertebrae and surrounding bones or tissues for the restoration and maintenance of health.’ A licensed doctor of chiropractic under this act may use x-ray and such analytical instruments as are approved by the Michigan board of chiropractic examiners in the examination of patients solely for the purpose of locating misaligned or displaced vertebrae of the human spine and for the procedures preparatory thereto.
"The terms 'chiropractic’, 'doctor of chiropractic’, 'chiropractor’ and 'all licensed doctors of chiropractic’ mean a practitioner of chiropractic as defined in this act.” MCL 338.156; MSA 14.596 (Emphasis supplied.)

Defendants argue that the words "procedures preparatory to” indicate that a chiropractor can dispense drugs in order to prepare a patient for treatment. Such an inference lacks merit on the basis of several grounds. The pharmacy act states that, unless a pharmacist’s license is obtained, no one but physicians, dentists and veterinarians may prescribe drugs. MCL 338.1128; MSA 14.757(28). Since the term "physician” is not used anywhere within the chiropractic act, it logically follows that chiropractors were not intended to be able to dispense drugs. In addition, the Legislature could have easily specifically authorized chiropractors to dispense drugs, as was done in the case of osteopaths, MCL 338.101a(c); MSA 14.571(1)(c), but failed to do so.

Defendants’ position that they should be permitted to dispense drugs is directly contrary to the philosophical foundation of the chiropractic profession. The Michigan statutory definition is in accord with the universally accepted view that the chiropractic profession is limited to the manual adjustment of the spine. Drugs play no part in the chiropractor’s approach to health.

"Although the doctor of chiropractic recognizes the place for drugs and surgery in therapeutics, he does not employ those procedures. As the result of his clinical experiences, he knows that the chiropractic approach offers successful results in a wide range of illnesses.” Dr. Julius Dintenfass, Chiropractic: A Modern Way to Health (New York 1970), p 78.
"Medical doctors, though under no compulsion to do so, rely chiefly upon drugs and surgery in ministering to the sick. Though there are notable exceptions, they tend for the most part to be either apathetic and skeptical or frankly antagonistic to the use of manipulation as a curative agent.
"Doctors of osteopathy, on the other hand, while they too are trained and licensed to prescribe drugs and to perform surgical operations, also make use of manipulative procedures.
"In contrast to both of these kinds of doctor, the doctor of chiropractic gives no medicine and practices no surgery. This is not because he feels that he has the answer to every health problem and believes that drugs and surgery are never necessary. It is because he is convinced that the chiropractic way offers safest, sanest, and most promising approach to the great majority of human ailments. He is trained to recognize those conditions which cannot be expected to respond successfully to this approach and when he encounters them, promptly refers the patient to some other kind of doctor. This leaves him free to give his undivided attention to the science and art of chiropractic, a field sufficiently complex and challenging to merit such specialization.” Dr. Julius Dintenfass, Opportunities in a Chiropractic Career (New York 1967), p 8.
"Chiropractic has been variously defined as a drugless method of treating human ailments, chiefly by manipu-, lations of the spinal column with the hands, or as the science of palpating, analysing, and adjusting the articulations of the human spinal column and adjacent tissues by hand.” 58 ALR3d 590.

It is the conclusion of this Court that the Legislature of this state intended to authorize the practices of chiropractic as generally recognized and understood. The contention that the statutory language "procedure preparatory to "manual adjustment authorizes the chiropractor to dispense drugs is violative of the intent of the Michigan Legislature. A logical extension of this argument would allow chiropractors to do anything as long as it was somehow "preparatory to” the manual adjustment of spinal vertebrae. Accordingly, we rule, as a matter of law, that chiropractors are not authorized to dispense drugs to their patients.

III. Acupuncture

Courts from several jurisdictions have ruled that; a general license to practice medicine is required before one may engage in the practice of acupuncture. State v Rich, 44 Ohio St 2d 195; 73 Ohio 2d 487; 339 NE2d 630 (1975), Louisiana State Board of Medical Examiners v Moran, 290 So 2d 383 (La App 1974), State v Won, 19 Or App 580; 528 P2d 594 (1974), Commonwealth v Schatzberg, 29 Pa Comm 426; 371 A2d 544 (1977). Risks involved in the practice of acupuncture by nonphysicians have been identified as improper use of needles leading to infection, bruising, needles breaking in the body, delay in diagnosis and serious illnesses. The penetration of the skin with needles is a surgical act. Note, Regulating the Practice of Acupuncture: Recent Developments in California, 7 UCD L Rev 385, 391-392, 396 (1974). Further, the majority of state licensing boards addressing the question consider acupuncture as the practice of medicine or osteopathy. Two states, Indiana and Kansas, forbid the use of acupuncture by licensed physicians. Pisani, Acupuncture: The Practice of Medicine? 38 Albany Law Rev 633 (1974).

The issue of the right of a chiropractor to perform acupuncture has been addressed in several states. All decisions have denied the right. State v Won, supra, Commonwealth v Schatzberg, supra, State v Rich, supra. The Pennsylvania decision is particularly pertinent since that state’s statutory definition of chiropractic, like Michigan’s, includes "preparatory to” language. Defendant’s excellent and comprehensive brief does not cite nor have we discovered any authority to the contrary. We thus conclude that as a matter of law a chiropractor is not authorized to perform acupuncture in this state.

IV. Diagnosis

At the trial court proceedings two civil cases were consolidated and tried together. One case involved defendants herein who were charged with dispensing the prescription drug Darvon and performing acupuncture. The second case charged one Gerald J. Hall with engaging in unauthorized diagnosis by drawing blood samples, taking blood pressure, and performing "breast and pap” tests to detect cancer. The trial court’s written opinion dated June 3, 1976, concluded by enjoining all defendants from "performing any diagnostic tests on patients, including 'pap and breast’ tests and blood pressure tests, except such tests as are expressly and specifically set forth in the chiropractic act, MCL 338.156; MSA 14.596”. Subsequent to the opinion of June 3, 1976, the case of defendants herein was severed from that of Gerald J. Hall who moved from Michigan, forfeited his license as a chiropractor and has taken no appeal to this Court. Nevertheless, the order dated November 24, 1976, from which the instant appeal is taken, in addition to enjoining appellants herein from dispensing drugs and performing acupuncture, enjoins appellants from performing diagnostic tests in language precisely the same as appears in the June 3, 1976, opinion.

We find nothing wrong with paragraph 3 of the order per se. The problem is that the two defendants in this appeal were not performing any of the alleged improper diagnoses. Chiropractors must use some diagnostic procedures, provided such procedures are within the scope of practice permitted by the chiropractic act. Janssen v Mulder, 232 Mich 183; 205 NW 159 (1925). See also Bauer v State, 267 SC 224; 227 SE2d 195 (1976). The real question is what diagnostic tests exceed the statute. The instant record is totally inadequate to justify discussion in this case of the scope of diagnostic methods of chiropractic medicine. That issue should properly be decided on an adequate record involving practitioners charged with exceeding the statutory authority. In this case Jonas and Marie Raguckas were not so charged. Because they were not so charged and nothing in the record suggests that, as to them, improper diagnosis was conducted, paragraph number 3 on page 2 of the injunctive order is set aside. For the same reasons, paragraph number 5 enjoining defendants from advertising is set aside. In all other respects the order of summary judgment and injunctive order dated November 24, 1976, is approved.

Affirmed in part, reversed in part in accordance with this opinion. No costs, a public question being involved.

       The trial court concluded and we agree that plaintiffs did in fact establish a prima facie case for immediate equitable relief.


source: Caselaw Access Project

author: A. C. Miller, J.

license: Public Domain

text:
    RICHARDS v AMERICAN FELLOWSHIP MUTUAL INSURANCE COMPANY
    Docket No. 29830.
    Submitted November 7, 1977, at Detroit.
    Decided July 17, 1978.
    Leave to appeal applied for.
    Ronald Richards had a policy of automobile no-fault insurance with defendant American Fellowship Mutual Insurance Company. He was involved in an injury accident on April 13, 1974. Proof of loss forms were submitted on May 9, 1974, and a hospital bill in the amount of $8,880.38 on June 18, 1974. The hospital billing indicated Blue Cross-Blue Shield had paid all but $69. Defendant issued its check for $69. On June 10, 1975, demand for payment of the balance was refused. On June 23, 1975, plaintiff commenced a civil action in Oakland Circuit Court. The controlling statute provides that a "claimant may not recover any portion of the loss incurred more than 1 year before the date on which the action was commenced.” Defendant argues that plaintiff did not file suit until June 23, 1975, and therefore cannot claim any expense dated before June 23, 1974. The question on appeal is whether the Legislature intended to preclude the insured’s recovery of expenses incurred more than one year before the date on which suit was begun when the insurance company took no action to inform the insured that his claim had been denied until after the statutory period had, or had almost, run. Summary judgment for plaintiff for $8,880.38 and $100 in attorney fees, Richard D. Kuhn, J. Defendant appeals and plaintiff cross-appeals. Held:

    1. The one year statute of limitations is tolled from the day an insured gives notice of loss until liability is formally denied by the company.
    2. Attorney fees are recoverable under a section of the statute where an insurer unreasonably refuses to pay a claim; however, this section of the statute does not apply where a serious question of statutory interpretation is involved and the insurer is not chargeable with an unreasonable refusal to pay.

      References for Points in Headnotes
    [1] 73 Am Jur 2d, Statutes § 142.
    [2] 73 Am Jur 2d, Statutes §§ 155-160.
    [3] [No Reference]
    [4] Am Jur 2d, New Topic Service, No-Fault Insurance § 7.

      Affirmed in part, reversed in part.
    1. Statutes — Courts—Legislature—Judicial Functions — Legislative Intent — Construction op Statutes.
    Courts may not usurp the law-making function of the Legislature; however, statutory construction is a judicial function and courts are required to discover the legislative intent.
    2. Statutes — Courts—Construction of Statutes.
    A reasonable construction of a statute is necessary where its language is of doubtful meaning; courts must look to the purpose of a statute, which should be effected if possible; its occasion and necessity, its spirit and purpose should prevail over its strict letter; injustice in its application should be prevented and absurd consequences avoided.
    3. Automobiles — Insurance—No-Fault Insurance — Limitations of Actions — Notice of Loss — Denial of Liability — Tolling— Statutes.
    The running of the one year statute of limitations for the commencement of actions under the no-fault automobile statute is tolled from the day an insured gives notice of loss until liability is formally denied by the company (MCL 500.3145; MSA 24.13145).
    4. Automobiles — Insurance—No-Fault Insurance — Unreasonable Refusal to Pay — Attorney Fees — Statutes.
    A section of the no-fault statute provides that an attorney’s fee should be charged in addition to the benefits recovered if a court finds the insurer unreasonably refused to pay a claim or unreasonably delayed in making proper payment; however, this section of the statute does not apply where a serious question of statutory interpretation is involved and the insurer is not chargeable with an unreasonable refusal to pay (MCL 500.3148[1]; MSA 24.13148[1]).

      Blum & Stalburg, P. C., for plaintiff.

      Daniel Zolkower (by Conrad J. Ceglowski), for defendant.

      Before: D. C. Riley, P. J., and D. F. Walsh and A. C. Miller, JJ.

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

   A. C. Miller, J.

This case involves another facet of the no-fault insurance law involving notice and time limitations on the right to commence suit.

On April 13, 1974, the plaintiff, Ronald Richards, was injured in an automobile accident which resulted in his confinement at University Hospital in Ann Arbor, Michigan, from April 13, 1974, to May 15, 1974. At the time of the accident and hospitalization, the plaintiff was covered for no-fault benefits under a policy of insurance written by the defendant, American Fellowship Mutual Insurance Company. The policy requires written notice of the accident within 60 days after its occurrence. Defendant received notice of the accident and the resulting injuries by phone on April 19, 1974. On May 9, 1974, defendant received personal injury protection forms executed by the plaintiff. On June 18, 1974, the plaintiff submitted to the defendant the bill from the University Hospital in the amount of $8,880.38. The billing indicated that Blue Cross-Blue Shield had paid all the charges but $69 of the total statement; the defendant issued its check for $69 to the hospital on June 19, 1974, and failed to pay the remaining amount. The policy of insurance issued by the defendant to the plaintiff does not contain coordinated benefits and defendant admits it would have been obligated to pay the full hospital charges had it been so requested by the plaintiff within one year after the billing. However, defendant has asserted throughout this action, and continues to assert, that the hospital bill showing only $69 owing did not constitute a request for payment of the entire $8,880.38.

On June 10, 1975, plaintiff, through his attorney, made demand on the defendant to pay the balance of $8,880.38; such demand was refused by defendant. On June 23, 1975, plaintiff commenced a civil action against the defendant. Defendant asserted as an affirmative defense that the Michigan no-fault law statute of limitations provision, MCL 500.3145; MSA 24.13145, precluded plaintiff from recovery.

The trial judge made a finding of fact that the statute of limitations had not run and ordered that summary judgment be granted in favor of the plaintiff for the amount of $8,880.38, and also awarded the plaintiff’s attorney $100 in fees.

There is no question in the present suit that notice of the accident and of the likelihood of insurer liability was given to the defendant. Plaintiff filed his proof of loss form on May 9, 1974. On June 18, 1974, plaintiff submitted the bill from the University of Michigan Hospital to defendant insurer. The defendant, knowledgeable of its liability under its insurance contract with the plaintiff, could only have interpreted plaintiff’s submission of a hospital billing in the amount of $8,880.38 as a request for payment.

Defendant contends that plaintiff’s claim fails because of § 3145 of the act. This section provides in pertinent part as follows:

"(1) An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor’s loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced.” MCL 500.3145; MSA 24.13145.

Plaintiff complied with the requirement set out-in the first sentence of the section. Because he gave written notice and because the company paid part of the loss, plaintiff was allowed to commence suit later than 1 year after the accident. Pursuant to the second and third sentences of the section, plaintiff had one year after incurring a particular expense to sue the insurer for payment of that expense item. Defendant argues that plaintiff did not file suit until June 23, 1975, and therefore cannot claim any expense dated before June 23, 1974.

This Court must, therefore, determine whether the Legislature intended to preclude the insured’s recovery of expenses incurred more than 1 year before the date on which suit was begun when the insurance company took no action to inform the insured that his claim had been denied until after the statutory period had, or had almost, run.

In construing legislative enactments, the courts are guided by certain rules of statutory construction:

" 'Although we may not usurp the law-making function of the legislature, the proper construction of a statute is a judicial function, and we are required to discover the legislative intent.
" 'Where, however, the language is of doubtful meaning, a reasonable construction must be given, looking to the purpose subserved thereby. Its occasion and necessity are matters of judicial concern, and its purpose should be effected if possible. Its spirit and purpose should prevail over its strict letter. Injustice in its application should be prevented, and absurd consequences avoided.’ ” Lincoln Park Detention Officers v Lincoln Park, 76 Mich App 358, 362; 256 NW2d 593 (1977).

Thus, § 3145 must be construed in accordance with the Legislature’s purpose in enacting no-fault insurance, i.e., that persons injured in automobile accidents be promptly and adequately compensated for their losses arising out of the motor vehicle mishap. Shavers v Attorney General, 65 Mich App 355, 370; 237 NW2d 325 (1975), aff'd in part, 402 Mich 554 (1977). See also MCL 500.3142(2); MSA 24.13142(2).

If we were to accept defendant’s interpretation of the statutory provision, we would in effect be penalizing the insured for the time the insurance company used to assess its liability. To bar the claimant from judicial enforcement of his insurance contract rights because the insurance company has unduly delayed in denying its liability would run counter to the Legislature’s intent to provide the insured with prompt and adequate compensation.

In The Tom Thomas Organization, Inc v Reliance Insurance Co, 396 Mich 588, 591, 594; 242 NW2d 396 (1976), the Supreme Court sought to resolve a similar problem. The case involved a provision in a policy of insurance which limited the time for bringing suit. Justice Levin, writing for the majority of the Court, held as follows:

"The running of the period of limitation was tolled from the date Tom Thomas gave notice of loss until liability was formally denied by Reliance.
" 'In this manner, the literal language of the limitation provision is given effect; the insured is not penalized for the time consumed by the company while it pursues its contractual and statutory rights to have a proof of loss, call the insured in for examination, and consider what amount to pay; and the central idea of the limitation provision is preserved since an insured will have only 12 months to institute suit.’ [Peloso v Hartford Fire Insurance Co, 56 NJ 514; 267 A2d 498 (1970)].” (Emphasis added.)

Applying the approach taken by the Thomas Court to § 3145 would effectuate the legislative intent in enacting the no-fault act. Unable to profit from processing delays, insurance companies will be encouraged to promptly assess their liability and to notify the insured of their decision. At the same time, the insured will have a full year in which to bring suit.

We, therefore, hold that the running of the 1 year statute of limitations was tolled from the day plaintiff gave notice of loss on June 18, 1974, until liability was formally denied by defendant on June 10, 1975. Thus, plaintiff’s suit filed on June 23, 1975, was commenced before the expiration of the time limitation as tolled.

The trial court’s order for summary judgment is, therefore, affirmed. Pursuant to MCL 500.3142; MSA 24.13142, plaintiff is to be allowed interest on the overdue benefits from July 17, 1975. The allowance of attorney fees is denied, however, because a serious question of statutory interpretation is involved. The defendant company is not chargeable with an unreasonable refusal within the meaning of MCL 500.3148(1); MSA 24.13148(1).

Affirmed in part, reversed in part.

       Chapter 31 of the Insurance Code, added by 1972 PA 294, MCL 500.3101 et seq.; MSA 24.13101 et seq.

       The record from the proceedings below does not indicate the precise date on which plaintiff was billed by the hospital. We can only ascertain that loss was incurred, i.e., plaintiff was billed, some time between May 15, 1974, the date of plaintiffs discharge from the hospital, and June 18, 1974, the date plaintiff forwarded the hospital bill to the defendant. Defendant did not formally deny liability until June 10, 1975.


author: M. F. Cavanagh, J. N. J. Kaufman, J.

text:
    PEOPLE v WILSON
    Docket No. 30487.
    Submitted November 2, 1977, at Grand Rapids.
    Decided July 17, 1978.
    Leave to appeal applied for.
    Ronald Wilson was convicted in Van Burén Circuit Court, Meyer Warshawsky, J., of first-degree murder, Defendant appeals, alleging error in the trial court’s instructions to the jury. Held;

    The trial court’s instruction that the defendant could be found guilty of first-degree murder if he "consciously intended to commit the crime of robbery” erroneously allowed the jury to convict the defendant of murder without a finding of malice, Such a finding is tantamount to a finding of guilty of manslaughter. Therefore, the case is remanded for entry of a judgment of conviction of manslaughter and for resentencing,
    Reversed and remanded.
    N. J. Kaufman, J., dissented. He would hold that an instruction on the element of malice is not necessary because of the statute which makes a felony murder first-degree murder, Because of the disagreement in the Court of Appeals on this issue, however, Judge Kaufman feels that, to be safe, trial courts should instruct juries on malice in felony-murder cases.
    Opinion of the Court
    1. Homicide — Murder—First-Degree Murder — Instructions to Jury — Malice.
    An instruction to the jury in a trial for a murder which occurred during a robbery that the defendant could be found guilty of first-degree murder if he "consciously intended to commit the crime of robbery” was erroneous because the instruction allowed the jury to convict the defendant of murder without a finding that he acted with malice.
    2. Homicide — First-Degree Murder — Malice—Instructions to Jury — Manslaughter.
    A jury verdict finding a defendant guilty of first-degree murder under instructions from the trial court which excluded the element of malice is tantamount to a conviction of manslaughter; the remedy for the erroneous conviction, therefore, is a remand for entry of a judgment of conviction of manslaughter and for resentencing.

      References for Points in Headnotes
    [1, 2, 5] 40 Am Jur 2d, Homicide § 498 et seq.

    [3] 40 Am Jur 2d, Homicide §§ 265, 267.
    [4] 40 Am Jur 2d, Homicide § 72.

      3. Homicide — Malice—Use of Deadly Weapon — Inference—Presumption.
    Malice is a permissible inference and not a presumption which a jury in a trial for homicide may draw from the use of a deadly weapon.
    Dissent by N. J. Kaufman, J.
    4. Homicide — Felony Murder — First-Degree Murder — Malice— Statutes.

      The ñrst-degree murder statute makes ñrst-degree murder of a killing which occurs during the perpetration of any of a number of listed felonies; malice is imputed to the act of killing from the intent to commit the underlying felony (MCL 750.316; MSA 28.548).

    5. Homicide — Felony Murder — Malice—Instructions to Jury.

      The issue of whether or not a trial court must instruct the jury on malice in a felony murder case depends upon the facts in each case; it would be better if trial courts did instruct on malice in all felony murder cases.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Ward S. Hamlin, Jr., Prosecuting Attorney (by Thomas C. Nelson, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Daniel J. Wright, Assistant State Appellate Defender, for defendant on appeal.
    Before: R. M. Maher, P. J., and M. F. Cavanagh and N. J. Kaufman, JJ.
   M. F. Cavanagh, J.

A jury convicted defendant of first-degree (felony) murder. MCL 750.316; MSA 28.548. He was sentenced to life imprisonment without parole, and appeals by right.

With respect to the element of malice in the jury instructions on first-degree murder, the court charged that defendant might be found guilty if defendant "consciously intended to commit the crime of robbery”. Although this was error, People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976), the appropriate remedy is not a reversal of defendant’s conviction and a remand for retrial. The error in these instructions is that they allowed the jury to convict the defendant of murder without finding that he acted with malice. However, as was explained in People v Clark, 5 Mich App 672, 676; 147 NW2d 704, 706 (1967), lv den, 379 Mich 763 (1967), murder, absent malice, is manslaughter, " 'the unlawful killing of another without malice, express or implied.’ 'Manslaughter is distinguished from murder in that the element of malice, express or implied, which is the very essence of murder is absent.’ ” (Citations omitted.) Thus, even if the jury here convicted the defendant without a finding of malice, their verdict, on these instructions, is tantamount to a conviction of manslaughter. Cf. People v Jenkins, 395 Mich 440, 442-443; 236 NW2d 503, 504 (1975).

Accordingly, defendant’s conviction for first-degree murder is reversed and the case remanded for entry of a judgment of conviction of the lesser included offense of manslaughter and for resentencing. If, however, the prosecuting attorney is persuaded that the ends of justice would be better served, upon notification to the trial court before resentencing, the trial court shall vacate the judgment of conviction and grant a new trial on the charge that the defendant committed the crime of first-degree murder. See People v Jenkins, supra, 395 Mich at 442-443; 236 NW2d at 504.

Should the prosecutor elect to retry defendant the jury should be instructed that malice is a permissible inference that the jury may draw from the use of a deadly weapon, and not a presumption. See People v Martin, 392 Mich 553, 561; 221 NW2d 336, 340 (1974). Also, upon proper request defendant shall be entitled to an instruction on the lesser included offense of robbery. MCL 750.530; MSA 28.798. People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975). See People v Anderson, 62 Mich App 475, 482; 236 NW2d 620, 624 (1975).

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

N. J. Kaufman, J.

(dissenting). Defendant was convicted of first-degree felony murder in accordance with MCL 750.316; MSA 28.548, after a jury trial. Sentenced to life imprisonment, defendant appeals as of right.

Defendant’s conviction arose out of the shooting death of Arretta Lou Ingraham during a robbery at the Maple Street Grocery in South Haven on the afternoon of December 1, 1975. The prosecution’s theory was that defendant and Lamar Langston were responsible for the robbery, that Langston first cased the store, and that defendant then entered the store, and committed the robbery which resulted in the shooting of Mrs. Ingraham while Langston waited outside.

At trial, the prosecutor produced three eyewitnesses, Barbara Sullivan, Gordon Hoag, and Wilbur Ingraham. Witness Sullivan testified that she was at the cash register when she noticed a man in the store, and that a scuffle started between Gordon Hoag and the man. She further noticed that a wine bottle was broken and Hoag going down. Witness Sullivan testified that the man then took the money from the cash register, having already taken Wilbur Ingraham’s wallet. At this point, witness Sullivan slipped out the back door.

Witness Hoag testified that he was at the store for hamburger buns and a bottle of wine when a male pointed a pistol at him, saying "this is a stick up”. He recalled that something made him think the gun wasn’t loaded and that he tried to knock the man’s gun arm up with his left hand and to swing the wine bottle with his right hand. However, he testified that he was then hit on the face, causing him to fall to the floor. He further testified that as he was crawling out of the store, he heard a voice say "open the cash register” and "give me the money”. He remembered hearing the deceased say "Wilbur, do something”, and that he then heard a pop like the sound of a gun going off.

Witness Ingraham testified that the man grabbed him by the neck, pointed a gun at his head, announced a robbery and ordered the opening of the cash register. He further testified that a struggle then ensued between Hoag and the robber and that the robber fired the gun and departed the store after taking money from the cash register and his billfold.

In its instructions to the jury, the trial court said that the prosecutor had to prove each of the following elements in order to convict defendant of first degree murder:

"First, that Arretta Lou Ingraham died on or about December 1, 1975, in the County of Van Burén; second, that her death was caused by the defendant or that it occurred as a direct result of the commission of the crime of robbery; that is, that Arretta Lou Ingraham died as a result of being shot during a robbery at her grocery store; third, that at the time of the robbery which caused the death of Arretta Lou Ingraham the defendant either intended to kill Arretta Lou Ingraham or that he consciously intended to commit the crime of robbery, or consciously created a very high degree of risk to another with the knowledge of its possible consequence. I should say probable consequence. Fourth, the fourth element is that the defendant caused the death without justification, excuse, or mitigation; fifth, that at the time of the gunshot which caused the death of Arretta Lou Ingraham the defendant was committing or assisting another in the commission of the crime of robbery.”

The trial court also instructed on the elements of the underlying armed robbery and the included offense of second-degree murder. Regarding the element of malice, as it pertains to second-degree murder, the trial court stated:

"With reference to second degree murder, the intent or malice aforethought required for this degree of murder is often formed and executed suddenly in the heat of blood and without the premeditation necessary to first degree murder and without the murder period. The malice to kill may be actual or it may be implied from all the facts and circumstances connected with the killing which indicate the disposition or state of mind with which it is done. The intent to kill or malice for second degree murder may be implied where the actor actually intended to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm, thereby manifesting his extreme indifference to the value of human life. Where death has been shown to have resulted from the use of a deadly weapon, that is a weapon reasonably calculated and likely to produce death or serious injury from the manner in which it was used, malice may be presumed in the absence of proof to the contrary.”

The court concluded its charge by instructing that the jury could reach one of three possible verdicts: guilty of murder in the first degree; guilty of murder in the second degree; and not guilty.

The court then excused the jury and asked if the parties were satisfied with the instructions:

"THE COURT: I will ask the People are the People satisfied with the Court’s charge to the jury?
"MR. WILLIS [Assistant Prosecutor]: People are satisfied, your Honor.
"THE COURT: I will ask the defendant, is the defendant satisfied with the Court’s charge to the jury?
"MR. SZYMANSKI [Defense Counsel]: Your Honor, the defendant is not satisfied.
"THE COURT: I will ask the defendant what elements or grounds disturb him?
"MR. SZYMANSKI: May it please the Court, primarily our first would be the fact that armed robbery alone was not given the jury as a possible alternative, that they could find either guilty of first degree murder, of second degree murder, or guilty of armed robbery, or not guilty.
"THE COURT: You ask that the Court go in and address itself to the charge of armed robbery?
"MR. SZYMANSKI: Yes, sir.
"THE COURT: The testimony showed that the defendant, if believable, was in the stor,e with a gun. The testimony also showed, and there was no rebutting that, that one shot was fired. I am merely commenting on the testimony. That although the question of the direction of the bullet, vis-a-vis the path through the body may leave some room for explanation, it isn’t such that I believe the question of felony murder can be excluded.
"Now, if there is a felony murder, I submit first under the facts of this case, there should not be a charge of armed robbery. Second, under the rules, you do not charge armed robbery as a lesser included offense of felony murder.
"Do you have another one?
"MR. SZYMANSKI: Yes. The other one — there are two — I’m sorry.
"THE COURT: Yes.
"MR. SZYMANSKI: The other instruction that I would request is an instruction to manslaughter. And my basis for requesting that instruction is that the testimony does show- that there was a scuffle between the defendant and Mr. Hoag, the witness Mr. Hoag, and very shortly after this scuffle is when the shot occurred or the shot was heard. And for that reason we feel that it could well have been in the heat of passion of the fight that the killing occurred.
"THE COURT: All right. I am going to deny that instruction also. I do it based on the state of the law, and I have no basis for charging manslaughter in an armed robbery felony murder. Second, I believe in addition to this state of the law, the facts do not warrant that kind of that particular charge in this particular case.”

While defendant raises three grounds of error, I will address myself to the last one first. Did the trial court err reversibly by failing to instruct the jury that malice is an essential element of first-degree murder?

The classic definition of first-degree murder as embodied in MCL 750.316; MSA 28.548 and its predecessors was given sanction by the Supreme Court early in our jurisprudential history. In People v Potter, 5 Mich 1, 3 (1858), the defense asked for the charge:

" * * * that, if the government sought to have the jury convict the prisoner of murder of the first degree, the burden of proof was on the government, to show that the murder was committed in the perpetration, or in the attempt to perpetrate, arson, rape, robbery, or burglary, or by poison, or by lying in wait; or to prove such facts in addition to the act of killing as made the killing murder of the first degree.”

The trial court refused this request. The Supreme Court reversed the subsequent conviction, concluding:

"Now, malice aforethought is either express or implied, and there can be no case of murder in the first degree, except when committed in the perpetration, or attempt to perpetrate, arson, rape, robbery, burglary, or when there does not exist express malice; while, in case of murder in the second degree, the malice is generally, if not universally, implied.” (Emphasis in original.) 5 Mich at 9.

Chief Justice Martin’s formulation of first-degree murder, which excluded felony murder from the malice requirement, was reaffirmed by Justice Campbell in People v Scott, 6 Mich 287, 294 (1859):

"Except in the cases expressly named in the statute, murder in the first degree requires the existence of a deliberate intention to take life; and any slaying in which a jury should find either the absence of deliberation, or that the intent was to commit another and a lesser injury, must be either murder in the second degree, or one of the lighter grades of homicide. Accordingly, in the case of Potter, where the court below had held that the jury could convict of murder in the first degree upon any proof which would establish murder at common law, we reversed the decision, and held that murder in the first degree, except in the specified cases, could only be made out by proof of express malice, and a deliberate design against life itself.” (Emphasis supplied.)

By 1870, trial courts were instructing juries based on the Potter formulation. The following charge to the jury is from People v Vanderpool, 1 Mich Nisi Prius 264, 268-269 (1870):

"The definition of murder, under our statute, remains the same as at common law; and all that our statute does is to divide it into classes; and I charge you, Gentlemen, that in order to find a person guilty of murder in the first degree, you must find that he killed the deceased either by poison, or lying in wait, or, that it was some other kind of wilful, deliberate, and premeditated killing; or that the killing was done while the accused was engaged in the perpetration or attempt to perpetrate one or more of the four offenses mentioned in the statute; to-wit, arson, rape, robbery, or burglary. ” (Emphasis supplied.)

In Wellar v People, 30 Mich 16, 19-20 (1874), a nonfelony murder, Justice Campbell stated the following in a discussion on the necessity of proof of malice:

"But it is necessary that the intent with which he acted shall be equivalent in legal character to a criminal purpose aimed against life. Generally the intent must have been to commit either a specific felony, or at least an act involving all the wickedness of a felony. And if the intent be directly to produce a bodily injury, it must be such an injury as may be expected to involve serious consequences, either periling life or leading to great bodily harm. There is no rule recognized as authority which will allow a conviction of murder where a fatal result was not intended, unless the injury intended was one of a very serious character which might naturally and commonly involve loss of life, or grievous mischief. Every assault involves bodily harm. But any doctrine which would hold every assailant as a murder where death follows his act, would be barbarous and unreasonable.” (Emphasis supplied.)

The Supreme Court certainly recognized the felony murder doctrine in People v Utter, 217 Mich 74, 85; 185 NW 830 (1921), when it sustained the following instruction:

" 'If it is true as the people claim in this case that he assisted in taking the money from the body that lay there and that later it was divided up between the parties with his knowledge and consent, and that this man was struck and given a mortal wound and died from the effects of it, and that mortal wound was given at the hands of either of the three, if you are satisfied beyond a reasonable doubt of those elements it is your duty to convict the respondent in this case of murder in the first degree. If you are not satisfied beyond a reasonable doubt of his connection with this so far as entering into an agreement to go there with them and assist in its execution your verdict in this case will be not guilty.’ ”

No instruction as to malice was given.

Utter was followed three years later by People v Treichel, 229 Mich 303, 307; 200 NW 950 (1924), a statutory felony murder case, in which the Supreme Court concluded:

"While impaneling the jury, the trial judge stated that, under the information, a conviction might be had for murder in the first or second degree or manslaughter, and at the close of the trial so instructed the jury.
"Counsel for defendants strenuously insist this was error, claiming the information charged murder in the first degree, and it was the duty of the trial judge, under the evidence and their written request, to instruct the jury to confine their deliberations to such degree and, if unable to convict of murder in the first degree, they must find defendants not guilty. Counsel claim they are supported in taking this position by many decisions of this court. In this they are in error. The information charged murder without specifying method, or means, or circumstances, and, under the information, murder in either degree, or manslaughter, might be found. This court has repeatedly held, where the charge as laid includes murder in the first degree, and the proofs establish such degree, and no lesser degree, it is not error for the court to instruct the jury that, in order to convict, murder in the first degree must be found. But this court has not held, under a charge like here laid, the court must instruct the jury to find murder in the first degree or acquit. Whether such an instruction may be given or not depends upon the evidence. While the statute constitutes murder committed in the perpetration of burglary as in the first degree, it does not exclude all lesser degrees if the evidence warrants.” (First emphasis in original; second emphasis supplied.)

In People v Hearn, 354 Mich 468, 470-471; 93 NW2d 302 (1958), the Supreme Court specifically upheld the ruling of Utter in holding:

"An examination of the court’s charge to the jury discloses that the jury was completely and properly instructed and defendant fully protected, as shown by the following instruction:
" 'Now, the defense in this case is marijuana and alcohol, either one or both, or a combination. The defense claims that because of its use that the respondents in this case did not know what they were doing or why they were doing it and consequently could not form an intent to rob and didn’t know the difference between right and wrong. Now, these are questions for you to decide upon after you reach the jury room. * * *
" 'If their mental faculties were so far overcome by the use of marijuana and liquor that they were not conscious of what they were doing, or if they knew what they were doing but did not know why they were doing it, or that their actions and the means they were using were naturally adapted to produce death, then they had not the capacity to entertain the intent and, in such case, intent could not be inferred from their actions. * * * This question of intent and common purpose to rob a gasoline station is a question of fact for you to determine after considering the acts before the commission of the crime and afterwards, and bearing upon the question of whether or not they knew what they were doing. Take into consideration all the testimony bearing upon that question. * * *
" 'You cannot convict unless you find intent to commit the crime of robbery. You don’t have to find intent to kill, but you do have to find intent to commit the crime of robbery. If you don’t find that intent, of course the respondents are not guilty. If you do find it, then there is another question for you to pass on. You must find intent to commit the crime of robbery, felonious intent, before you can convict of first-degree murder.’ ”

A similar ruling was made by the Supreme Court in People v Dupuis, 371 Mich 395, 402; 124 NW2d 242 (1963):

"Thus not only the defendant but, equally, the jury was instructed and informed in plain and unmistakeable language that the charge against the defendants was murder in the first degree. Thus is this case to be distinguished from Attorney General v. Recorder’s Judge, [341 Mich 461; 67 NW2d 708 (1954)], in which this Court said that the information contained 'only intimation that first-degree murder may have been charged.’ Here the information did not merely intimate that it may have been, but, on the contrary, it expressly charged murder committed in violation of the statutory provision, read to the jury, constituting murder committed in the perpetration of a robbery murder in the first degree. By announcement of a verdict of guilty of that charge, the jury did 'ascertain in their verdict’ that defendant was guilty of murder in the first degree.
"The verdict was valid. The motion for new trial was properly denied. Affirmed.”

The next major case in this area, People v Carter, 387 Mich 397; 197 NW2d 57 (1972), causes some confusion. The Supreme Court had to decide, where an enumerated felony was the basis of a felony murder charge, whether instructions on lesser included offenses must be given. The Supreme Court was also confronted again with the question of instructing on malice:

"In a criminal case, if there is a request to charge as to a lesser included offense, but there is no evidence of such a lesser included offense, or the facts are such that the court or the jury would be obliged to conclude that the defendant was guilty of the offense charged or not guilty, no charge as to a lesser included offense need be given.
"But if the evidence is subject to different interpretations that would justify a finding of a lesser offense, a charge as to such lesser offense, especially if one is requested, should be given.
"In this case, it is maintained that, even though the criminals were engaged in felonious acts, they did not act with malice, either express or implied. The evidence is that none of the physical injuries Osbeck received would have contributed to his death. The conduct of the felons in opening the trunk of Osbeck’s car after the bank robbery can be accounted for on the theory that they believed him to be alive and were giving him a chance to escape. Since all of the evidence is circumstantial, these were matters to be considered by the jury under a proper charge as to manslaughter, as well as first and second-degree murder.” 387 Mich 422-423. [Footnotes omitted.]

It should be noted that the Carter case was based solely on circumstantial evidence. There really was no proof that defendant Carter was involved in any of the enumerated felonies in the statute; therefore, to convict of murder, the prosecution would have to prove malice as in any other nonfelony murder case.

This Court’s best explication of the principles set forth above is in People v Morrin, 31 Mich App 301, 310-311; 187 NW2d 434 (1971), lv den, 385 Mich 775 (1971), where Judge (now Justice) Levin stated:

"A person who kills another is guilty of the crime of murder if the homicide is committed with malice aforethought. Malice aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter. The intent to kill may be implied where the actor actually intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm. (The common-law felony-murder rule is an example of implied intent or implied malice aforethought.)” (Other footnotes omitted.)

However, after a discussion of many of the same cases mentioned in this opinion, Judge Walsh in People v Fountain, 71 Mich App 491, 505-506; 248 NW2d 589 (1976), concluded:

"From the foregoing discussion we are led to the conclusion that Michigan has neither a statutory felony-murder doctrine nor a common law felony-murder doctrine. Malice is not, in this state, imputed to an act of killing from the intent to commit an underlying felony. Although malice may be inferred from the nature of the underlying felony and the circumstances surrounding its commission, the presence or absence of malice in each case remains a question for jury determination.
"Insofar as the trial court’s instructions removed the essential element of malice from the jury’s consideration, they were erroneous. The defendant’s conviction is reversed and the case is remanded for a new trial.”

With this interpretation, I cannot agree. The statute is still on the books, the law has not been changed.

Clearly, there is great conflict among members of this Court regarding the issue of felony murder. The opposing viewpoint has been eloquently set forth by Judge Walsh in People v Fountain, supra, by Judge Riley in her dissenting opinion in People v Till, 80 Mich App 16; 263 NW2d 586 (1977), and by the majority in People v Wright, 80 Mich App 172; 262 NW2d 917 (1977). On the other hand, advocates of the felony murder doctrine have endorsed Judge Bashara’s majority opinion in People v Till, supra. I would note that all of the above opinions were well-reasoned and well-written. Until the Supreme Court passes on this issue, our legal discord will continue. As noted by Circuit Judge Brown in People v Vanderpool, supra at 278:

"Solomon’s knowledge of the power of maternal love enabled him to judge righteously in determining to which of the two [women] the living child belonged, and that knowledge was an infallible criterion of truth. Bible, 1 Kings, 3 ch. 16-28V. The nineteenth century, however, has no Solomons”.

When it comes to felony murder, neither does the twentieth century.

Even the new standard criminal jury instructions do not solve the quandry in which the Court of Appeals finds itself. The commentary to the malice instructions notes:

"In summary, jury instructions in Michigan, as in many other jurisdictions, have suffered from the use of legal terms which are imprecise and ambiguous. One such term is 'malice aforethought,’ which, since it has been interpreted to be dependent on neither ill will nor reflection over time, has little meaning and tends to confuse juries. Initially, homicide was presumed to be murder. It was later established that malice is not a presumption, but a permissible inference. An interesting side effect was that in restating the rule, the Michigan Supreme Court shifted the burden to the prosecution to disprove justification, excuse and mitigation. Unlike other defenses, therefore, justification, excuse and mitigation became elements of the crime. Because the intent to kill may be implied by the circumstances, jurors may be required to determine the actor’s state of mind by inference. Currently used instructions, however, tend to be misleading in that the juror may interpret them to mean that commission of the act can itself supply the required evidence of state of mind, rather than that the juror must himself determine what state of mind he believed the defendant entertained at the time of the act.
"Except for felony-murder, the concept of implied intent is applicable only to wanton act murder. Three factors must be considered to determine whether a wanton act homicide is murder: whether the actor could reasonably foresee a certain degree of risk; whether he acted consciously and purposefully; and whether he was aware at the time of the probable consequences of his act. The degree of risk required is a 'very high degree of risk,’ as opposed to a 'high degree of risk,’ which will suffice for manslaughter. Michigan’s foreseeability of consequences standard permits the defense of diminished capacity even in a wanton act case. [Emphasis added.]
"Michigan has held that murder is not a specific intent crime. However, with the exception of an early case which predated the emergence of the distinction between general and specific intent (a case which has been viewed as a policy decision), the courts have not explained what this means. Historically, murder of the first degree includes felony-murder as well as wilful, deliberate and premeditated murder, and second-degree murder includes the wanton act. Thus, the statement that murder is not a specific intent crime would be true if by 'specific intent’ the courts mean intent to kill, as neither felony-murder nor wanton act murder requires the intent to kill. First-degree nonfelony murder is a specific intent crime. Garcia, supra [People v Garcia, 398 Mich 250; 247 NW2d 547 (1976)].” CJI 16-98-16-99.
"The Committee concluded that first-degree murder, other than felony-murder, requires an actual intent to kill.” CJI 16-101.
"The felony-murder rule may well linger on in the United States for many years in a morass of judicial interpretations and statutes because of the way it developed in this country. There are several types of statutes dealing with the felony-murder doctrine. There are thirteen states which classify homicides committed in the perpetration or attempted perpetration of arson, rape, robbery and burglary as murder in the first degree or as murder where murder is not divided into degrees. Statutes in several states add the offenses of mayhem, kidnapping and larceny. Some statutes codify the common law, making the statute apply to 'any felony.’ The vast majority of states have adopted some form of felony-murder statute.” CJI 16-111 (Footnotes omitted.)

Additionally, proposed CJI 16:2:04 provides:

"(1) The defendant is charged with the crime of murder of the first degree. The law, as it applies to this case, states that all wilful, deliberate and premeditated murder or all murder which shall be committed during and as a result of the committing or attempting to commit [arson / rape / robbery / larceny / burglary / extortion / kidnapping] shall be murder of the first degree. The defendant pleads not guilty.
"(2) There are two degrees of murder, first degree and second degree, and you will be instructed as to both. [Murder of either degree is the killing of one person by another with malice. Malice is a term with a special meaning in the law. Malice means that the defendant intended to kill or that he knowingly created a very high risk of death with knowledge that it probably would result in death, and that he did so under circumstances which did not justify, excuse or lessen the crime.]1 * * *
"USE NOTE: 1. Some authorities believe that the bracketed material concerning malice should be omitted.”

It is obvious by the language of Use Note 1 that the Committee itself was not in agreement as to whether or not an instruction on malice should always be given in a charge.

I believe that until the Supreme Court authoritatively decides this issue, each case is sui generis, and the facts of each case must be reviewed separately. The instructions on felony murder were proper in this case.

I would agree with Judge Bash ara in People v Till, supra, that to be safe, it would be better if trial courts instructed on malice in felony-murder cases.

Defendant’s other allegations of error do not require reversal of his conviction.

I would affirm defendant’s conviction.

       It must be noted that felony-murder itself is a doctrine created by the legal profession. Genesis 4:8: "And Cain talked with Abel his brother: and it came to pass, when they were in the field, that Cain rose up against Abel his brother, and slew him.” That passage undoubtedly records the first murder case in history. However, we can find no guidelines from this episode as Cain was simply left to face his maker.

       "Perkins on Criminal Law (2d ed), p 37; Moreland, Law of Homicide, pp 14, 42; Clark and Marshall, Crimes, (6th ed), § 10.07.
      "In Michigan certain felony murders are by statute murder of the first degree. MCLA § 750.316 (Stat Ann 1954 Rev § 28.548.)”

       When Michigan was admitted as a state in 1837, the Pennsylvania statute on murder was adopted verbatim. In 1846, the statute was amended to change the penalty from death to mandatory life imprisonment. The provisions of the statute dealing with wilful, deliberate, and premeditated murder have remained unchanged. In 1969, "larceny of any kind, extortion, and kidnapping” were added to the felony-murder provision. It may be surmised that the 1969 amendment was a direct result of holdings that the felony-murder doctrine was limited in Michigan to the enumerated felonies, where various courts had ruled that a death during the perpetration of a kidnapping and larceny from a building did not constitute felony murder. The 1969 amendment is a good indication of legislative intent.

       The following notation from the proposed standard criminal jury instructions at 16-79 bears remembering:
      "Judge Cardozo, in discussing the distinction between first- and second-degree murder, stated: 'The present distinction is so obscure that no jury hearing it for the first time can fairly be expected to assimilate and understand it. I am not at all sure that I understand it myself after trying to apply it for many years and after diligent study of what has been written in the books.’ Cardozo, Law and Literature (Harcourt, Brace and Co ed 1931), pp 100-101.”
      This Court finds itself in much the same situation as Mr. Justice Cardozo.


text:
    PEOPLE v PITTS
    Docket No. 31154.
    Submitted November 8, 1977, at Detroit.
    Decided July 17, 1978.
    Gregory Pitts was convicted in Recorder’s Court of Detroit of reckless discharge of a firearm resulting in death under the aiding and abetting statute, Patricia J. Boyle, J. Defendant appeals contending that his conviction was improper because there was no proof at trial that he shared the requisite criminal intent with the party who did the shooting and that a party may not be convicted of aiding and abetting a crime which consists merely of a negligent act. Held:

    A conviction of aiding and abetting in the reckless discharge of a firearm resulting in the death was not improper where evidence was introduced at trial that the defendant, with an apparently violent purpose, planned entry into the house where the killing took place and participated in creating a situation in which there was a substantial likelihood that the gun in the possession of his accomplice would be handled in a reckless or careless manner.
    Affirmed.
    1. Criminal Law — Aiding and Abetting — Negligence—Conscious Sharing — Foreseeable Results.
    The aiding and abetting statute makes a defendant a principal when he shares in any criminal act; knowledge of the principal’s criminal purpose and a conscious sharing of the act are required for the offense, but it is sufficient if defendant performs acts that aid in the creation of the circumstances or participates in an enterprise the scope being such that the principal criminal act is a reasonably foreseeable result (MCL 767.39; MSA 28.979).
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 120.
    [2] 40 Am Jur 2d, Homicide § 91.
    Who other than actor is liable for manslaughter. 95 ALR2d 175.
    [3] 40 Am Jur 2d, Homicide §§ 29, 37.

      2. Homicide — Negligent Homicide — Parties—Scope of Enterprise.
    Negligent homicide is not a crime necessarily limited in commission to one person; the scope of the enterprise is a fact question in each individual case.
    3. Homicide — Aiding and Abetting — Reckless Discharge of Firearm — Participation.
    A conviction of aiding and abetting in the reckless discharge of a firearm resulting in death was not improper where evidence was introduced at trial that the defendant, with an apparently violent purpose, planned entry into the house where the killing took place and participated in creating a situation raising a substantial likelihood that the gun in the possession of his accomplice would be handled in a reckless or careless manner which he could reasonably have anticipated would have caused death.

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

      Carol A. Park, for defendant on appeal.
    Before: D. C. Riley, P. J., and D. F. Walsh and A. C. Miller, JJ.

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

   A. C. Miller, J.

This appeal presents the novel issue as to whether it is possible to aid and abet an act which lacks willful intent.

Defendant Gregory Pitts was convicted of reckless discharge of a firearm resulting in death (MCL 752.861; MSA 28.436(21)). He was tried jointly with his brother on the charge of first-degree murder, but the jury returned verdicts of guilty as to both of them on the above offense. Defendant was sentenced to a term of 16 to 24 months in jail.

Both defendants had engaged in a running feud with neighbors named Burton in the same apartment house and were again involved in one of their alcoholic brawls, this time defendant wielding a bar stool and bis brother a shotgun, when the gun discharged killing Mrs. Burton.

The evidence would have justified a more serious verdict, but the extent of the feuding, amount of alcohol and description of the personality of deceased must have played a part in the jury deliberations.

The defendant argues that guilt as an aider and abettor requires that the accused share the requisite criminal intent with the principal. Further, defendant contends that the offense of reckless discharge of a firearm is characterized by simple negligence, neither wanton nor willful. Since no intent is necessary for the substantive offense, there is no intent that can be shared by the aider and abettor. Finally, defendant concludes as a matter of law, a person cannot aid and abet a negligent act.

Conversely, the prosecution argues that the guilt of an aider and abettor depends on his own mental state, not that of the principal. It is their contention that an aider is liable for any act committed in the scope of the common enterprise. Therefore, it follows that in the present case the instruction on aiding and abetting in the reckless discharge of a firearm was proper inasmuch as defendant and Palmer acted in concert to attack and intimidate the Burtons. Since defendant was partially responsible for setting the situation where it was likely that Palmer would handle his gun recklessly, the prosecution concludes that defendant did encourage the commission of the offense.

The statute defendants were convicted of violating cited above provides:

"Any person who, because of carelessness, recklessness or negligence, but not willfully or wantonly, shall cause or allow any firearm under his immediate control, to be discharged so as to kill or injure another person, shall be guilty of a misdemeanor, punishable by imprisonment in the State prison for not more than 2 years, or by a fine of not more than $2,000 or by imprisonment in the County jail for not more than one year, in the discretion of the Court.”

A willful or wanton act, constituting gross negligence, would raise the offense to manslaughter.

The accessory statute (MCL 767.39; MSA 28.979) provides:

"Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.”

In People v Penn, 70 Mich App 638, 649; 247 NW2d 575 (1976), the Court speaks in terms of a sharing and a conscious sharing of the criminal act:

"Aiding and abetting makes a defendant a principal when he shares in any criminal act. * * * Knowledge of the principal’s criminal purpose and a conscious sharing of the act are necessary.”

The word "abet” adds the conscious element:

"ABET. To encourage, incite, or set another on to commit a crime. This word is always applied to aiding the commission of a crime. To abet another to commit a murder is to command, procure, or counsel him to commit it. Old Nat. Brev. 21; Co. Litt 475.
" 'Aid’ and 'abet’ are nearly synonymous terms as generally used; but, strictly speaking, the former term does not imply guilty knowledge or felonious intent, whereas the word 'abet’ includes knowledge of the wrongful purpose and counsel and encouragement in the commission of the crime.” Black’s Law Dictionary, Third Edition, p 9.

While writings generally use the conjunctive "and” when referring to this concept, the statute above is actually in the disjunctive. Therefore, in crimes involving lack of care rather than intent, there is no reason to require the latter. It is sufficient if defendant performs acts that aid in the creation of the circumstances or participates in an enterprise, the scope being such that the result is reasonably foreseeable.

The line of cases involving delivering a car to a drunk driver resulting in death, such as People v Marshall, 362 Mich 170; 106 NW2d 842 (1961), are distinguishable on the basis of the scope of the enterprise and lack of presence of defendant. In Marshall, the Court stated at 173:

" * * * the killing of Coldiron was not counseled by him, accomplished by another acting jointly with him, nor did it occur in the attempted achievement of some common enterprise.” (Emphasis added.)

The presence of defendant ties him closer to the enterprise and on this basis, Story v United States, 57 US App DC 3; 16 F2d 342; 53 ALR 246 (1926), and People v Ingersoll, 245 Mich 530; 222 NW 765 (1929), are closer in point. The owner was also a passenger. In Ingersoll the Court said at 535:

"Two persons may be charged as principals in negligent homicide. Story v United States, 57 App DC 3 (16 Fed (2d) 342, 53 ALR 246). Negligent homicide is not a crime necessarily limited in commission to one person.”

The scope of the enterprise is a fact question for each individual case. In the instant case, defendant was present, but he had a total lack of connection with the weapon itself.

In this case, defendant’s liability is sought to be premised on his responsibility for the situation wherein the gun would be likely to be handled recklessly, creating a danger of death.

A few cases from other jurisdictions have spoken concerning a party’s participation in a situation wherein negligence is the likely end result. In State v DiLorenzo, 138 Conn 281; 83 A2d 479 (1951), defendant and others operated an illegal Still. Defendant was a supplier of ingredients, but not an actual operator of the still. At a time when defendant was not present, the still exploded due to faulty construction, causing the deaths of two bystanders. The Court held defendant liable for involuntary manslaughter on the basis that he was a partner in the common enterprise which carried on the illegal activity in a reckless and careless manner.

In Commonwealth v Atencio, 345 Mass 627; 189 NE2d 223 (1963), defendant was found guilty of manslaughter when one of the participants in a game of "Russian Roulette”, of which defendant was also a player, unfortunately was the "loser” of the game. The Court held that defendant had a duty not to cooperate in the game and thereby encouraged the deceased in such reckless conduct.

In several cases in which a person was killed by a shot fired from one of a group of hunters (the actual shooter being unascertainable), courts have held each of the group liable for participating in and encouraging reckless conduct by the whole group. See State v Newberg, 129 Or 564; 278 P 568 (1929), Regina v Salmon, LR6 QB Div 79 (Eng, 1880).

These cases appear applicable in part to the instant case. Assuming the jury believed the testimony of Mr. Burton, defendants planned the entry into the Burtons’ apartment, defendant Palmer being armed. The purpose of the entry appeared to be violence against the Burtons, a situation raising a substantial likelihood that the gun could be handled in a reckless or careless manner. Defendant, while not actually careless with a gun, could be held responsible for his part of the common enterprise.

While most of the cited cases involved some personal negligence of the defendants, that was not true in DiLorenzo, supra. There the defendant, while free of personal negligence regarding the operation of the still, was found liable solely for his part in the enterprise out of which the negligence arose. Similarly, defendant Pitts, while free of negligence concerning the handling of the gun, may be found liable for his participation in the common scheme.

It is clear that the defendant was engaged in a common enterprise with his brother and should be held responsible as a principal for whatever transpired within the scope of it. The jury found careless use of a firearm resulting in death. So be it. Defendant clearly aided his brother in a set of circumstances wherein carelessness in the handling of a gun could reasonably be anticipated to cause death. The guilt of the aider or abettor depends on his own actions.

The jury was properly instructed and the conviction is affirmed.

       The Standard Jury Instruction 8:1:03 is appropriate only for intentional crimes.


author: R. M. Maher, J.

text:
    PEOPLE v GRAHAM
    Docket Nos. 31340, 77-2037.
    Submitted May 4, 1978, at Grand Rapids.
    Decided July 17, 1978.
    John L. Graham was convicted in Calhoun Circuit Court, Creighton R. Coleman, J., of delivery of a controlled substance and of being a habitual offender. Defendant, prior to his conviction as a habitual offender, moved to set aside the verdict in the first conviction and offered affidavits of a juror to the effect that the juror did not recognize the name of one of the witnesses when the list was read to him, that he in fact knew the witness, who testified for the prosecution, that he was prejudiced in favor of the prosecution and against the defendant as a result of his acquaintenance with ’ the witness and that he was not an impartial juror. The trial court denied defendant’s motion, ruling that the affidavits were inadmissible. Defendant appeals his convictions. Held:

    1. Affidavits or testimony to impeach a jury’s verdict are properly received when they concern overt acts, accessible to the knowledge of all the jurors or deal with matters not inhering in the verdict and when they are not generalized, ambiguous or vague.
    2. A new trial should be granted where affidavits or testimony are presented confirming that matters have been falsely denied or concealed on voir dire, if these matters would establish the juror’s incompetency or disqualification or would lead the parties to challenge him or her, and if the affidavits are not proffered to show misconduct of a juror or jury for the purpose of impeaching the verdict; it makes no difference whether the denial or concealment by the juror was intentional or otherwise.
    Reversed and remanded.
    1. Jury — Verdict—Impeachment of Verdict — Overt Acts.
    Affidavits or testimony to impeach a jury’s verdict are properly received when they concern overt acts, accessible to the knowledge of all the jurors, or deal with matters not inhering in the verdict and when they are not generalized, ambiguous or vague.

      References for Points in Headnotes
    [1] 76 Am Jur 2d, Trial § 1219.
    [2] 76 Am Jur 2d, Trial § 1228.

      2. Criminal Law — Jury—Verdict—New Trial — Voir Dire — Juror —Denying or Concealing Matters on Voir Dire.
    A new trial should be granted where affidavits or testimony are presented confirming that matters have been falsely denied or concealed on voir dire, if these matters would establish the juror’s incompetency or disqualification or would lead the parties to challenge him or her and if the affidavits are not proffered to show misconduct of a juror or jury for the purpose of impeaching the verdict; it makes no difference whether the denial or concealment by the juror was intentional or otherwise.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and James D. Nor-lander, Prosecuting Attorney, for the people.

      F. Martin Tieber, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P. J., and Bashara and R. M. Maher, JJ.
   R. M. Maher, J.

Charged with delivery of a controlled substance, namely heroin, MCL 335.341(1)(a); MSA 18.1070(41)(1)(a), defendant was convicted by a jury on August 25, 1976. He was sentenced to prison on October 20, 1976, for a term of 9 to 20 years. Defendant was then charged as a habitual offender under MCL 769.10; MSA 28.1082. A jury found him guilty of that charge on January 27, 1977. Defendant’s sentence was increased to a term of 13-1/2 to 30 years. He appeals as of right.

The only evidence against defendant was identification by an undercover officer. The officer’s testimony was corroborated by an informant, one Gary Clark, a friend and cousin of the defendant. In an affidavit Clark had asserted that he and not the defendant had sold the heroin to the undercover officer. During the trial, however, Clark changed his story and said that it was the defendant who had received money in return for the heroin. The jury eventually returned the verdict of guilty.

On September 9, 1976, defendant filed a motion to set aside the verdict. Filed with the motion was an affidavit from juror Rodney Rogers who swore that he did not recognize the name of Gary Clark when a witness list was read to the jurors. In addition, the witnesses were not present in the courtroom when the jury was selected. When Gary Clark was called to the stand, Rogers realized that he had gone to school with the witness. Not knowing what to do, Rogers disclosed none of this to the court or the parties involved but continued to sit as a juror throughout the case. Had he known who the witness was at the beginning, Rogers stated, he would have asked to be excused.

In a supplemental affidavit the juror Rogers asserted that he was prejudiced in favor of the prosecution and against the defendant because of his familiarity with the witness. He felt that under the circumstances he was not an impartial juror.

The trial court denied the motion to set aside the verdict finding the juror Roger’s affidavit inadmissible. The court stated, "Generally speaking, a juror’s testimony or affidavit is not receivable to impeach his own verdict. * * * [T]he law is that jurors’ testimony and affidavits as to their mental processes in arriving at a verdict should be excluded from evidence in an attack on a jury verdict.”

In one respect, the trial court is correct. The common rule is well established that jurors may not impeach their verdicts by affidavits. "To permit this would open the door for tampering with the jury subsequent to the return of their verdict.” People v Pizzino, 313 Mich 97, 105; 20 NW2d 824 (1945).

There is an exception to the general rule, one whose genesis is in Federal case law and which has been adopted in Michigan. Affidavits or testimony to impeach the verdict are properly received when they concern overt acts, accessible to the knowledge of all the jurors.

"[The affidavits must tend] to prove something which did not essentially inhere in the verdict, an overt act, open to the knowledge of all the jury, and not alone within the personal conciousness of one.” Mattox v United. States, 146 US 140, 149; 13 S Ct 50; 36 L Ed 917 (1892), quoting Perry v Bailey, 12 Kan 539, 545 (1874).

Mattox distinguishes between matters inhering in the verdict, which are inadmissible to impeach the verdict, and facts which are extraneous or an outside influence, which are admissible (as long as those facts do not demonstrate how far that influence operated upon the juror’s mind). The Mattox case, including the exception it delineates, is cited with approval in People v Moreland, 12 Mich App 483; 163 NW2d 257 (1968).

If the affidavit, then, deals with matters not inhering in the verdict, it should be received. In Michigan there is the additional requirement that the affidavit relied upon not be generalized, ambiguous and vague. See People v Van Camp, 356 Mich 593; 97 NW2d 726 (1959).

It is proper and appropriate to grant a new trial when affidavits or testimony are presented confirming that matters have been falsely denied or concealed on voir dire, if these matters would establish the juror’s incompetency or disqualification or would lead the parties to challenge him or her and if the affidavits are not proffered to show misconduct of a juror or jury for the purpose of impeaching their verdict. Grist v The Upjohn Co, 16 Mich App 452; 168 NW2d 389 (1969).

In weighing the affidavits, whether the concealment of answers on voir dire is intentional or otherwise is of no moment. In Grist v The Upjohn Co, supra, the nondisclosure was intentional. In People v DeHaven, 321 Mich 327; 32 NW2d 468 (1948), a new trial was granted when a juror purposely gave false answers and practiced deception. In People v Hannum, 362 Mich 660; 107 NW2d 894 (1961), the Court dealt with a situation not in which a juror purposely made false answers but in which the juror simply did not disclose the information because not asked about it. The Court held:

"That the lack of disclosure of the pertinent fact can be attributed to failure to expressly ask the prospective juror about it can hardly be thought to have insured an impartial trial any more so than in DeHaven, merely because there the panel members denied such disqualification.” 362 Mich at 667.

In the instant case, the juror did not intentionally conceal his knowledge. He became aware of his acquaintance with the witness midway through the trial. In either situation, the bias of the juror would be present during deliberations.

"[T]he fact that the court in a case in which the element of intent to conceal is present states its rulings with reference to the presence of that element, does not establish the decision as amounting to a ruling that where such element is absent the affidavit or testimony will not be admissible. The better view evidently is that it is the fact of nondisclosure or concealment notwithstanding sufficient and well-directed questioning on voir dire, not the intent of the juror in making answer, which grounds the testimony or affidavits of fellow jurors.” Anno: Admissibility, in Civil Cases, of Juror’s Affidavit or Testimony to Show Bias, Prejudice, or Disqualification of a Juror Not Disclosed on Voir Dire Examination. 48 ALR2d 971, 976.

Cf. Slater v United Traction Co, 172 App Div 404; 157 NYS 909 (1916), dealing with statements made by a juror after the verdict. There the view taken was that the inquiry whether the nondisclosure on voir dire was intentional or merely inadvertent did not determine the question of admissibility.

The intention of the juror (or lack thereof) at the time of voir dire is, for these purposes, of little importance if important facts have remained undisclosed. But to mandate a new trial more than the discovery of an error by way of the nondisclosure of facts is necessary. The party moving for a new trial must present proof of actual prejudice or must establish to the satisfaction of the trial court that the moving party would have successfully challenged for cause or otherwise dismissed the juror in question had the truth been revealed prior to trial. Citizens Commercial & Savings Bank v Engberg, 15 Mich App 438; 166 NW2d 661 (1968), Gustafson v Morrison, 57 Mich App 655; 226 NW2d 681 (1975).

Here the affidavits of Rogers establish that he was prejudiced in favor of the prosecution. He states that he was not an impartial juror because of his acquaintance with the prosecution witness. Actual prejudice was established. Furthermore, an affidavit from defense counsel could have verified that had he known the truth about the juror’s acquaintance with the witness, he would have either challenged the juror for cause or dismissed him peremptorily. Based on the statements in the affidavit, defendant would have grounds to challenge the juror for cause. GCR 1963, 511.4(3).

Since actual prejudice has been established, based upon the juror’s affidavits, defendant is hereby granted a new trial. We find no merit in defendant’s remaining allegations of error.


author: D. F. Walsh, J.

text:
    PEOPLE v JASINSKI
    Docket No. 77-166.
    Submitted May 2, 1978, at Detroit.
    Decided July 17, 1978.
    John E. Jasinski entered a plea of nolo contendere to assault with intent to commit great bodily harm less than murder in Wayne Circuit Court, James N. Canham, J. Prior to acceptance of the plea, defendant stated that he had no recollection of the alleged incident due to his intoxication. On appeal he challenges the sufficiency of the factual basis upon which his plea was accepted. Held:

    Factual support for a finding that a defendant is guilty of the offense to which he is pleading must be established before a trial court can accept a plea of nolo contendere. Where a defendant claims that because of intoxication he does not recall participating in the commission of a crime the people should produce evidence negating this defense. A plea is erroneously accepted where there is no substantial evidence in the record negating the intoxication defense and such a case should be remanded to allow a prosecutor to produce the necessary evidence, and if not shown, the conviction should be set aside, and if shown, the matter should be treated as a motion to withdraw the plea. Discretion in deciding which course to follow is with the trial judge.
    Remanded for further proceedings.
    1. Criminal Law — Plea of Guilty — Factual Support for Plea— Court Rules.
    A trial court in accepting a plea of nolo contendere is required to conduct a hearing, unless there already has been one, to establish factual support for a finding that a defendant is guilty of the offense to which he is pleading (GCR 1963, 785.7[3] [b] [ii]).
    2. Criminal Law — Plea of Guilty — Evidence—Intoxication.
    The prosecution is required to produce evidence negating the defense of intoxication where a defendant claims that because of intoxication he does not recall participating in the commission of a crime; a plea of guilty may not be accepted when such a claim is raised where there is no substantial evidence in the record negating the defense of intoxication.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 497 et seq.

    [2] 21 Am Jur 2d, Criminal Law §§ 492, 495.

      John J. Morad, for defendant on appeal.
    Before: M. F. Cavanagh, P. J., and Bronson and D. F. Walsh, JJ.
   D. F. Walsh, J.

Defendant was charged with armed robbery, MCL 750.529; MSA 28.797, and assault with intent to murder, MCL 750.83; MSA 28.278. He pleaded nolo contendere to assault with intent to commit great bodily harm less than murder and was sentenced to 2-1/2 to 10 years imprisonment. MCL 750.84; MSA 28.279. On appeal he challenges the sufficiency of the factual basis upon which his plea was accepted.

The pertinent court rule requires that the trial court conduct a hearing, unless there already has been one, to establish factual support for a finding that the defendant is guilty of the offense to which he is pleading. OCR 1963, 785.7(3)(b)(ii).

In the instant case no such hearing was held at the plea proceedings. We, therefore, assume that the trial court relied upon the records of the prior hearings in the case to establish the necessary factual basis for the plea. See, e.g., People v Belanger, 73 Mich App 438; 252 NW2d 472 (1977).

At the hearing on defendant’s motion for evaluation of defendant’s competency to stand trial, defense counsel stated that in 1970 defendant had had brain surgery during the course of which a portion of a drill had broken off. The metal piece was left in defendant’s head. Since that time he had been subject to convulsions and seizures.

At the subsequent competency hearing the examining physician read into the record his narrative account of defendant’s interview with him wherein he related defendant’s account of the time period surrounding the commission of the acts alleged in the warrant. The defendant stated that he had been drinking extremely large amounts of alcohol two days before the alleged crime and could recall nothing whatever concerning the incident. Furthermore, the defendant had once before "blacked out” entirely for a two day period in 1973 after drinking heavily. The doctor diagnosed the defendant as a chronic alcoholic, but found him competent to stand trial.

At the preliminary examination the victim testified that the defendant came to the apartment of a Ms. High, whom the victim was visiting, in order to pick up some clothes that he had left there. Upon seeing the victim the defendant assaulted him with a pistol and took his ring and watch.

We think that the foregoing record brings this case within the rule stated in People v Stoner, 23 Mich App 598; 179 NW2d 217 (1970), lv den, 383 Mich 806 (1970). In Stoner the defendant pleaded guilty to robbery. At the plea proceeding he stated that he had no recollection of the alleged incident due to his intoxication. This Court set aside the defendant’s plea as premised upon an insufficient factual basis.

"We do not mean to be understood as saying that a plea of guilty may not be accepted merely because a defendant says that by reason of intoxication he cannot recall his participation in the commission of the offense. However, where the defendant claims that he cannot recall participating, the inquiry must go further: Is the defendant aware that if his claim to being so completely intoxicated that he cannot recall participating is believed by the trier of fact, that the trier would then be obliged to acquit him? If so, why then is the defendant pleading guilty?
"We recognize that a defendant may wish to waive a possible defense and plead guilty simply because he has concluded that the trier of fact will not believe him. The people’s evidence that the defendant was not intoxicated may be overwhelming.
"When a defendant claims that because of intoxication he does not recall participating in the commission of the offense, but, nevertheless, desires to plead guilty, the people should be asked to produce evidence negating the intoxication defense. Such evidence might appear in the transcript of a preliminary examination presented to and read by the trial judge before accepting the plea. If from such evidence it appears that the people can substantially refute a claim of intoxication, then a factual basis for the defendant’s plea would appear without regard to his own acknowledged recollection of what occurred. Upon such a showing and express and knowledgeable waiver of the defense by the defendant, the judge could properly accept the plea.” People v Stoner, supra, 607-608. See, People v Coates, 32 Mich App 52, 71, fn 16; 188 NW2d 265 (1971) (Levin, J., dissenting). (Emphasis added.)

In the instant case there is no substantial evidence in the record negating the defense of intoxication. We therefore remand the case to permit the prosecutor to produce such evidence. If he is unable to do so, the judgment of conviction shall be set aside. If such evidence is produced, the matter shall be treated as a motion to withdraw the plea and the trial court shall decide the matter in the exercise of its discretion. People v Stewart, 69 Mich App 528; 245 NW2d 121 (1976).

Remanded for proceedings not inconsistent with this opinion. We do not retain jurisdiction.

       The only indication of the underlying facts was the prosecutor’s summary of the preliminary examination testimony of the complaining witness.

       The trial court indicated its awareness of this condition at the plea proceedings.

       Our use of the quotation from Stoner implies nothing as to the propriety of accepting a guilty plea where the defendant cannot recall the facts of the alleged offense due to intoxication. Stoner did not address that issue, and it is obviously not present in the instant case. If anything, Stoner presented a classic situation for a plea of nolo contendere. See, Guilty Plea Cases, 395 Mich 96, 134; 235 NW2d 132 (1975), People v Seaman, 75 Mich App 546, 550; 255 NW2d 680 (1977).