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

text:
    PEOPLE v LAUZON
    Docket No. 77-784.
    Submitted March 7, 1978, at Grand Rapids.
    Decided June 19, 1978.
    Wade Lauzon was convicted in Bay Circuit Court, Leon R. Dardas, J., of receiving and concealing stolen property which exceeded the value of $100. At sentencing, the judge considered certain inaccurate information. Defendant appeals raising several issues. Held:

    1. While it was error to allow the prosecutor to impeach his own witness on a collateral matter, the error was harmless where it was not so offensive to the maintenance of a sound judicial process that it cannot be considered harmless and where the Court of Appeals can declare a belief that the error was harmless beyond a reasonable doubt.
    2. Mere possession of stolen property is, in itself, insufficient to show guilty knowledge that the goods in question had been previously stolen, but the circumstances accompanying possession may justify the inference of guilty knowledge.
    3. Due process entitles a defendant to a resentencing where the sentencing judge considered inaccurate information.
    Affirmed but remanded for resentencing.
    M. F. Cavanagh, P. J., concurred separately to express his dissatisfaction with the language of the criminal jury instruction regarding the inference of guilty knowledge from the fact of possession of stolen goods.
    Opinion of the Court
    1. Witnesses — Evidence—Criminal Law — Impeachment—Collateral Matters.
    A party who raises a collateral matter during examination of a witness is bound by the answer of the witness; thus, it was error to allow a prosecutor to introduce impeachment evidence of a conversation between the defendant and a third party after the third party who was the people’s witness testified that he could not recall such a conversation with the defendant.

      References for Points in Headnotes
    [1] 81 Am Jur 2d, Witnesses §§ 434, 612, 613.
    [2] 5 Am Jur 2d, Appeal and Error §§ 797, 803.
    81 Am Jur 2d, Witnesses § 433.
    [3] 66 Am Jur 2d, Receiving and Transporting Stolen Property §§ 3, 9.
    [4] 21 Am Jur 2d, Criminal Law §§ 569, 571.
    [5] 66 Am Jur 2d, Receiving and Transporting Stolen Property §§ 9, 32, 33.

      2. Appeal and Error — Harmless Error.
    Error in the admission of testimony is harmless: (1) where it is not so offensive to the maintenance of a sound judicial process that it can never be regarded as harmless; and (2) where, on review, the reviewing court can declare a belief that the error was harmless beyond a reasonable doubt.
    3. Receiving Stolen Goods — Mens Rea — Knowledge—Evidence of Guilty Knowledge.
    Guilty knowledge that the goods were previously stolen is an element of the crime of receiving stolen goods, but such guilty knowledge may be actual or constructive; mere possession of stolen property is insufficient in itself to show guilty knowledge, but the circumstances accompanying the possession may justify the inference of guilty knowledge.
    4. Criminal Law — Sentencing—Due Process — Sentence Based on Misinformation.
    Due process of law requires a defendant be resentenced where his sentence is based on inaccurate information placed before the court.
    Concurrence by M. F. Cavanagh, P. J.
    5. Receiving Stolen Goods — Criminal Law — Mens Rea — Instructions to Jury.

      The criminal jury instruction on receiving stolen goods which instructs the jury that the fact that the property was stolen and that the defendant was in exclusive and conscious possession of the property are "facts [which], if not explained, are ordinarily circumstances from which you may reasonably infer that the defendant had knowledge that the property was stolen” is confusing, comes dangerously close to indicating that knowledge can be inferred from mere possession, and can be read as shifting the burden of proof and as impinging upon a defendant’s right to remain silent; the language of the instruction is unsatisfactory (CJI 26:1:04).

      Frank J. Kelley, Attorney General, Robert A.

      Derengoski, Solicitor General, and Eugene C. Penzien, Prosecuting Attorney, for the people.

      Dominick J. Sorise, Assistant State Appellate Defender, for defendant on appeal.
    Before: M. F. Cavanagh, P. J., and D. E. Holbrook and Beasley, JJ.
   D. E. Holbrook, J.

On August 6, 1976, defendant was found guilty by a jury of receiving or concealing stolen property which exceeded the value of $100, contrary to MCL 750.535; MSA 28.803. On November 29, 1976, defendant was sentenced from two and one-half to five years in prison. Defendant appeals as of right.

A review of the lower court records, including the transcript, discloses the facts of the instant case to be as follows:

On July 1, 1975, Ronald VanTol discovered that the screen on his bathroom window had been removed and several items were missing from his home. He identified prosecution exhibits 1 and 2 as the stereo speakers which were stolen from his home. Mrs. VanTol corroborated her husband’s testimony.

In early August of 1975, Patrick Wilson discovered that his stereo was missing. He identified prosecution exhibit 3 as the stereo component taken from his home.

Donald Sylvester testified that he purchased prosecution exhibits 1, 2 and 3 from defendant. Sylvester was told by defendant that the stereo system would cost him $150. Sylvester received the stereo and made two $20 payments to defendant before the police confiscated the stereo system.

Detective Haustein testified that he found the stereo components, exhibits 1, 2 and 3, in the vicinity of Sylvester’s girlfriend’s home. The detective contacted defendant and put him into a police car in which the stereo system was located. Responding to questions posed by the detective, defendant stated that he knew the stereo system was stolen when he sold it to Sylvester. He told the detective that he had gotten the stereo from two men.

The defendant did not take the stand and rested on the presumption of innocence.

The first issue raised on appeal is whether the defendant is denied a fair trial, in a case where the defendant is charged with receiving and concealing stolen property, when the trial judge permitted the prosecution to show that a witness told a police officer that the defendant said he was "going to rip off a house that had a lot of guns”.

At trial, the prosecutor established that guns had been taken in both the VanTol and Wilson burglaries. During the prosecutor’s questioning of Sylvester, Sylvester was asked whether the defendant made any statements about guns or a breaking and entering. Sylvester said, "No”. The prosecutor then attempted to contradict this by suggesting that Sylvester told Detective Haustein that defendant said something about guns and a breaking and entering. Sylvester testified that he could not remember making any such statement to the detective.

Subsequently, Detective Haustein testified that Sylvester said that defendant said, that he was "going to rip off a house that had a lot of guns in it”. The trial judge ruled that the detective’s testimony had some indication, however remote, of guilty knowledge. We hold that the admission of this testimony in evidence was error.

The theft of the guns was collateral to the charge of receiving and concealing the stolen stereo system and involved another criminal offense. Subject to certain exceptions not applicable to the instant case, evidence of other crimes is inadmissible in a unitary criminal prosecution. People v Pinkerton, 79 Mich 110; 44 NW 180 (1889). A party who raises a collateral matter during examination of a witness is bound by the answer of the witness. People v Williams, 159 Mich 518, 521; 124 NW 555 (1910), People v Ellerhorst, 12 Mich App 661, 671; 163 NW2d 465 (1968). Here, the prosecutor tried to impeach its own witness after that witness testified that he could not recall a conversation with the defendant regarding stolen guns.

Although the trial court committed error in admitting the testimony, we must determine whether or not the error was harmless. Where it is claimed that error is harmless, two inquiries are pertinent. First, is the error so offensive to the maintenance of a sound judicial process that it never can be regarded as harmless? Second, if not so basic, can we declare a belief that the error was harmless beyond a reasonable doubt? People v Wichman, 15 Mich App 110, 116; 166 NW2d 298 (1968).

First, we do not feel that the error was so offensive to the maintenance of a sound judicial system that it cannot be regarded as harmless. The prosecutor did not deliberately inject this statement into the case relying on the harmless error rule. The prosecutor in good faith was attempting to impeach his witness for what he thought was a legitimate purpose.

Second, the error was harmless beyond a reasonable doubt. The evidence against the defendant was overwhelming. The defendant admitted to the detective that he knew the stereo was stolen. Sylvester testified that when he told defendant that he was looking for a stereo, the defendant stated that he could get one for him. Shortly thereafter, the defendant sold a stereo system to Sylvester for $150 and Sylvester then made two $20 payments to defendant towards the price. Additionally, the stereo system defendant sold Sylvester was identified as having been stolen from the homes of VanTol and Wilson. Thus, the error in the instant case was harmless and does not require reversal.

The next issue raised on appeal is whether the trial court erred in instructing the jury that they might infer knowledge by defendant that property was stolen from defendant’s possession of stolen property.

The trial court in its instructions to the jury instructed as follows:

"It’s up to you to determine beyond a reasonable doubt if the defendant was in exclusive and conscious possession of the property in question here or aided in the concealment, and that the property was stolen. These facts, if not explained, are ordinarily circumstances from which you may reasonably infer that the defendant had knowledge the property was stolen. However, you need not make this inference. It’s the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrant an inference that the defendant had knowledge that the property was stolen.
"In this regard, you may consider the circumstances surrounding the alleged taking, defendant’s conduct, his statement with reference to the property, the price that was paid for the property, the length of time that has elapsed between the taking and found in defendant’s possession, and any other facts from which you could infer knowledge.
"However, if from all the evidence you have a reasonable doubt whether he knew the property was so stolen or obtained, you must find he did not know it was so stolen or obtained and find the defendant not guilty.”

The trial court’s instructions were virtually verbatim from the Michigan Criminal Jury Instructions, Vol III, p 26-11, CJI 26:1:04.

The defendant asserts that this instruction was erroneous because it would allow an individual to he convicted solely on the fact that he possessed property that had been stolen. In other words, defendant maintains that the alleged instruction suggests that possession of stolen property can establish guilty knowledge.

Guilty knowledge of the fact that goods were previously stolen is an essential element of the crime of receiving and concealing stolen goods. People v Martinovich, 18 Mich App 253; 170 NW2d 899 (1969). Guilty knowledge may be actual or constructive. Martinovich, supra, at 257. Mere possession alone is not sufficient in and of itself to show guilty knowledge. People v Grandahl, 16 Mich App 221, 223; 167 NW2d 802 (1969). In People v Blackwell, 61 Mich App 236, 240; 232 NW2d 368 (1975), the Court cited with approval the following quotation from State v Gordon, 105 Minn 217; 117 NW 483 (1908):

"Guilty knowledge on the part of the defendant was not directly proved. In the nature of things, that is ordinarily impossible; nor is it necessary. The circumstances accompanying the transaction may justify the inference by the jury that the prisoner believed, and had received the goods on belief that they were stolen. 2 Bishop, Crim Law, § 1138; 1 Wharton, Crim Law & Procedure, § 984; 24 Am & Eng Enc Law (2d ed), p 52.” (Emphasis supplied.)

The court clearly instructed the jury that they were the triers of fact with exclusive power to determine whether the defendant knew that the property was in fact stolen when it came into his possession. The facts of the defendant’s possession are ordinary circumstances from which the jury may reasonably infer that the defendant had knowledge that the property was stolen. The additional fact that the trial court twice told the jury that it need not make this inference, complies with established law. Martinovich, supra; Blackwell, supra. Finally, the trial judge instructed the jury that it had to weigh all the evidence, and if, after weighing all the evidence the jury had a reasonable doubt regarding knowledge, the trial judge instructed that they should find the defendant not guilty.

This instruction does not undermine the presumption of innocence, nor does it shift the burden of proof. The jury is entitled to draw inferences from circumstantial evidence adduced at trial. Reading the instructions as a whole, and particularly in connection with the other instructions which the court gave the jury, the jury was not misled by the instruction in the instant case.

The last issue raised by defendant is whether he is entitled to a resentencing where the trial judge considered inaccurate information when sentencing the defendant.

The trial judge erred at sentencing because he thought that the defendant had committed a burglary while out on bond for the offense in the instant case. The prosecutor admitted in his brief that the judge was mistaken. Due process of law requires that a defendant be resentenced where his sentence is based on inaccurate information placed before the court. People v Malkowski, 385 Mich 244, 249; 188 NW2d 559 (1971).

Affirmed, remanded to the trial court for resentencing.

Beasley, J., concurred.

M. F. Cavanagh, P. J.

(concurring). I agree that the charge given, when read in its entirety, adequately advised this jury. I concur separately to voice my dissatisfaction with the wording of CJI 26:1:04, upon which the charge here given was based. I refer specifically to the sentence, "These facts, if not explained, are ordinarily circumstances from which you may reasonably infer that the defendant had knowledge that the property was stolen”. I find that this instruction is confusing. It comes dangerously close to indicating that knowledge can be inferred from mere possession. It can also be read as shifting the burden of proof and as impinging upon defendant’s right to remain silent.


source: Caselaw Access Project

author: D. C. Riley, J. J. H. Gillis, J.

license: Public Domain

text:
    PEOPLE v McCAIN
    Docket No. 77-1423.
    Submitted April 4, 1978, at Grand Rapids.
    Decided June 19, 1978.
    Leave to appeal applied for.
    William S. McCain was convicted of criminal sexual conduct in the first degree, Berrien Circuit Court, William S. White, J. Defendant appeals, alleging that in closing arguments the prosecutor improperly addressed certain facts which had not been introduced into evidence at trial. Held:

    The prosecutor in his closing argument and again in rebuttal impermissibly discussed the circumstances of a telephone conversation about which there had been no evidence introduced at trial. This constituted reversible error, despite the lack of objection at trial by the defendant, because the prosecutor’s arguments so tainted the jury deliberations that the Court of Appeals cannot say that the defendant was given a just and fair trial.
    Reversed and remanded.
    J. H. Gillis, J., dissented. He would hold that the error did not so prejudice the jury that they could not render a fair and impartial verdict and that had the defendant entered a timely objection a curative instruction could have cured any prejudice. He would affirm.
    Opinion of the Court
    1. Jury — Deliberations—Evidence—Facts Not in Record.
    Deliberations of a jury are to be confined to the evidence presented; an attorney may not argue or refer to facts not of the record which are within that attorney’s personal knowledge.
    2. Appeal and Error — Criminal Law — Prosecutor’s Remarks— Preserving Issue — Miscarriage of Justice.
    The Court of Appeals will reverse on the basis of alleged impropriety of remarks by a prosecutor which háve not been objected to only where a review of the record convinces the Court that the remarks resulted in a miscarriage of justice to the particular defendant.

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial § 1015.
    [2] 75 Am Jur 2d, Trial § 192 et seq.

    [3] 75 Am Jur 2d, Trial §§ 211, 218 et seq.

    [4] 5 Am Jur 2d, Appeal and Error §§ 545, 548, 549.

      3. Criminal Law — Prosecutor’s Improper Argument — First-Degree Criminal Sexual Conduct — Evidence—Credibility—Appeal and Error.
    A prosecutor’s reference in his closing argument and again on rebuttal to a telephone call made by a defendant, while the prosecutor was discussing the relative credibilities of a complaining witness and the defendant in a first-degree criminal sexual conduct case, was reversible error where no evidence had been introduced at trial relative to the telephone call because any improper factor can significantly tip the scales used by the jury to weigh the testimony where the issue of identification hinges on the relative credibilities of witness testimony.
    Dissent by J. H. Gillis, J.
    4. Appeal and Error — Preserving Issue — Manifest Injustice.

      The Court of Appeals will not entertain issues raised for the first time on appeal absent a record that affirmatively shows that a manifest injustice has occurred; counsel cannot sit back and harbor error to be used as an appellate parachute in the event of jury failure.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John Smietanka, Prosecuting Attorney, and Chris W. Dunñeld, Assistant Prosecuting Attorney, for the people.

      Jack M. Sturwin, for defendant on appeal.
    Before: R. B. Burns, P. J., and J. H. Gillis and D. C. Riley, JJ.
   D. C. Riley, J.

Defendant William Sherman McCain was charged with criminal sexual conduct in the first degree, contrary to MCL 750.520b(1)(e); MSA 28.788(2)(1)(e), and convicted of that offense at a jury trial. He raises several issues on appeal, one of which mandates reversal of his conviction.

At defendant’s preliminary examination, the complainant testified that on the night in question she was asked by Linda Wright, a neighbor, to babysit for Ms. Wright’s two children. While at the Wright house, she received a telephone call from Linda Wright to the effect that a man was going to stop over and that she, the complainant, should allow him to enter the house. Shortly thereafter, defendant arrived and was admitted by the complainant. They watched television and conversed for awhile without any hint of the impending assault.

Complainant testified that as she was cleaning up, defendant grabbed her, placed an object which he described as a knife to her neck, and threatened to kill her if she cried out. While they struggled, the telephone rang and defendant answered, holding his hand over complainant’s mouth. Complainant stated that defendant said something on the telephone about "being there in a little while”.

Following this telephone call, defendant allegedly forced complainant to submit to an act of sexual intercourse. Before leaving the house, according to complainant, defendant made a telephone call, the substance of which complainant did not relate.

After defendant left, complainant contacted the police and eventually accompanied them to the bar where Linda Wright was working. At the bar complainant identified defendant to the police and he was arrested.

Defendant was tried in October, 1976, but a mistrial was declared when the jury concluded, after a period of deliberation, that they were deadlocked on reaching a verdict. A second trial was then commenced on December 7, 1976.

In his opening argument, the prosecutor outlined the evidence which he intended to introduce. His recitation of complainant’s anticipated testimony corresponded with her earlier preliminary examination testimony. However, complainant’s actual testimony presented at the second trial never mentioned the alleged telephone call defendant made from the house subsequent to the charged act of sexual assault.

Defendant testified in his own behalf. He admitted going to Ms. Wright’s house on the night in question. He also admitted receiving a telephone call from Ms. Wright while at the house and telling her that he would be right down to the bar where Ms. Wright was working. From this point his testimony diverges from that of the complainant. He stated that when he arrived at the house complainant was there with two young men. He claimed to have stayed at the house for only a short time in order to check on Ms. Wright’s children. He denied ever having touched or sexually attacked complainant. According to defendant, he left the house and proceeded to a bar, where he called Ms. Wright at her place of employment to tell her that he was coming to see her. He stated that he was at the bar where Ms. Wright worked with friends for about an hour before the police arrived with complainant and he was arrested.

Linda Wright testified for the defense and corroborated defendant’s story. She admitted calling complainant to tell her that defendant was coming to the house and calling later to talk to defendant. She stated that defendant called her at the bar to tell her that he was coming there. She testified that defendant was at her place of employment for over an hour before he was arrested.

During his closing argument, the prosecutor discussed at length the relative credibilities of complainant’s testimony versus that of defendant. He emphasized the circumstances of the telephone call from defendant to Ms. Wright:

"There was one other significant detail, the significance of which we will explore later in this argument. That is that Linda or Karen says, that after they had this intercourse, and while they were having this other discussion, the defendant made a phone call.
"She does not know to whom he made the phone call, but he indicated to somebody — she related the conversation, that he would be along in a few minutes or moments, or words to that effect.
"The defendant tells you that he made such a phone call. Linda Wright told you that she received such a phone call.
"At midnight he made three phone calls. The most interesting of the three is the phone call that he said he made to Linda Wright.
"He says, he called Linda Wright to tell her that he would be over there in a few minutes.
"Linda Wright says that at five after twelve she received a phone call, telling her that he would be over there in a few minutes and, in fact, he was over in a few minutes.
"The interesting fact of that phone call, ladies and gentlemen, that interesting facts that have been testified to by the defendant and the — and he and his witnesses [sic], Linda Wright, is that that must be the phone call, if not heard around the world, at least heard around Watervliet. Because Karen Tuttle heard the exact phone call at about the same time, as near as we can tell, from Linda Wright’s own home.
"She knows the phone call was made, from her testimony. As we can piece the time together, as she knows what the conversation was about, and the testimony to it in practically the same words as the defendant and Linda Wright testified to.
"Ladies and gentlemen, I would ask you, how would Karen Tuttle have known about that phone call taking place at that time, and on that subject matter, had it not been made at Linda Wright’s house? There is no way.
"Ladies and gentlemen of the jury, unless the defendant was right there at Linda Wright’s house, unless the phone call was made, as the defendant says and Karen Tuttle says, at that house and at that time, after the act of sexual intercourse had taken place.”

Defense counsel in his closing argument made no mention of the fact that the complainant had not in fact testified as to the third telephone call. The prosecutor referred to the phone call in rebuttal argument in similar language as was previously quoted.

The error of the prosecutor in arguing the effect of testimony that was not presented at the trial has been conceded by the prosecution in this appeal. It is an elementary rule of law that the jury’s deliberations are confined to the evidence presented. An attorney may not argue or refer to facts not of the record which are within that attorney’s personal knowledge. People v Quick, 58 Mich 321; 25 NW 302 (1885), People v Dane, 59 Mich 550; 26 NW 781 (1886), People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969), People v McGee, 66 Mich App 164; 238 NW2d 564 (1975).

Our only issue to decide is whether the prosecutor’s remarks, given the fact that defense counsel did not object, constitute reversible error. We will only reverse on the basis of unobjected-to remarks where our review convinces us that the remarks resulted in a miscarriage of justice to the particular defendant. People v Auer, 393 Mich 667; 227 NW2d 528 (1975), People v McGee, supra, MCL 769.26; MSA 28.1096. On the record before us, we find that the prosecutor’s argument so tainted the jury deliberations that we cannot say that defendant was given a just and fair trial.

This case essentially came down to a credibility battle between the complainant and defendant. While there was physical evidence tending to show that complainant had been sexually assaulted, the only direct evidence tying defendant to the crime was the testimony of the complainant. Where the issue of identification hinges on the relative credibilities of witness testimony, any improper factor can significantly tip the scales used by the jury to weigh the testimony. See People v Abdo, 81 Mich App 635; 265 NW2d 779 (1978).

In the case at bar, the prosecutor’s final argument concerning the third telephone call may have had a powerful impact on the jury. It is not inconceivable that one or more jurors finally resolved the conflicting testimony by answering the prosecutor’s question of how the complainant could have known of the third call unless it was actually made in her presence. The mere consideration of the question improperly prejudiced the deliberations.

The conviction is reversed and remanded.

R. B. Burns, P. J., concurred.

J. H. Gillis, J.

(dissenting). I respectfully dissent.

As noted by the majority, this Court will not entertain issues raised for the first time on appeal absent a record that affirmatively shows that a manifest injustice has occurred.

"Counsel cannot sit back and harbor error to be used as an appellate parachute in the event of jury failure.” People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969).

Defense counsel made no objections to the prosecutor’s closing argument in the instant case. Without a doubt, the prosecutor erred by incorporating into his closing argument testimony from the preliminary examination which was not produced at trial. However, this error did not so prejudice the jury that they could not render a fair and impartial verdict in this case.

The testimony in question was not a crucial link in the chain of evidence produced against defendant at trial. The victim had previously testified on the matter at the preliminary examination. The prosecutor clearly intended to elicit the testimony at trial as can be seen by his opening statement that made reference to it.

The other evidence adduced at trial was more than sufficient to convict defendant of the crime charged herein.

A cautionary instruction by the trial judge would have cured any prejudice created by the prosecutor’s closing arguments.

The remaining issues have been examined and this writer does not believe they warrant discussion nor do they constitute reversible error.

Under such circumstances, I would affirm defendant’s conviction.

       The prosecution’s brief on appeal concedes the absence of any testimony from complainant regarding the third telephone call.

        See People v Blassingame, 59 Mich App 327, 335; 229 NW2d 438 (1975), People v Corsa, 50 Mich App 479, 485; 213 NW2d 579 (1973).


author: D. E. Holbrook, J. N. J. Kaufman, J.

text:
    PEOPLE v ROSS
    Docket No. 77-1623.
    Submitted May 2, 1978, at Lansing.
    Decided June 19, 1978.
    Jack R. Ross was convicted of receiving and concealing stolen property over the value of $100, and was thereafter convicted as a third-time habitual criminal in the Saginaw Circuit Court, Hazen R. Armstrong, J. Defendant appeals. Held:

    The Legislature did not intend to make a separate substantive crime out of being a habitual criminal when it enacted the statutory provisions for second and subsequent offenders, but rather, for deterrent purposes, intended to augment the punishment for second or subsequent felonies. Since the habitual offender act does not create a separate substantive offense, the court rule providing 20 peremptory challenges in criminal cases where the "offense” is punishable by life imprisonment does not apply to such proceedings and the defendant is entitled to 5 peremptory challenges in accordance with the statute regarding procedures to be used where a defendant is charged as a habitual criminal. Therefore, the trial court properly rejected the defendant’s request for 20 peremptory challenges. The trial court did err where it allowed the jury to consider two prior felonies charged in one information, which arose out of the same transaction, were provable by the same testimony, and involved the same place and subject, as two felonies, to be considered under the habitual, offenders act. The error was not harmless, therefore, the defendant’s conviction as a third,offender is reversed for entry of a judgment of conviction as a second offender and for resentencing, unless the prosecutor notifies the trial court of a desire for a new trial charging defendant as a third offender.

      References for Points in Headnotes
    [1, 4, 5] 39 Am Jur 2d, Habitual Criminals and Subsequent Offenders §18.
    [2, 5] 5 Am Jur 2d, Appeal and Error §§ 797, 798, 810, 815.
    29 Am Jur 2d, Evidence § 328.
    39 Am Jur 2d, Habitual Criminals and Subsequent Offenders §§ 26, 27, 31, 32.
    [3, 4] 20 Am Jur 2d, Courts § 84.
    [5] 5 Am Jur 2d, Appeal and Error § 792.

      Affirmed in part and reversed in part.
    N. J. Kaufman, J., concurred separately with the results reached by the majority, but he believes that the court rule supersedes the statute and thus that the defendant should have been allowed 20 peremptory challenges, since the intent of the court rule is that it should apply whenever a defendant is subject to a life sentence. The defendant should have been tried as a third offender, instead of a fourth offender, and the majority has further reduced it to a second offender conviction; therefore, the error in allowing only 5 peremptory challenges was harmless.
    Opinion of the Court
    1. Criminal Law — Substantive Crime — Legislature—Habitual Criminal — Offenses—Peremptory Challenges — Life Imprisonment — Statutes—Court Rules.
    The Legislature did not intend to make a separate substantive crime out of being a habitual criminal, but rather, in enacting the statutory provisions regarding second and subsequent offenders, intended to augment the punishment for second or subsequent felonies; therefore, since the habitual offender act does not create an "offense” the court rule providing 20 peremptory challenges in criminal cases where the offense is punishable by life imprisonment does not apply and the defendant is entitled to 5 peremptory challenges in accordance with the statute regarding the procedures to be employed when charging a defendant as a habitual criminal (MCL 769.13; MSA 28.1085, GCR 1963, 511.5).
    2. Appeal and Error — Criminal Law — Prior Felonies — Habitual Offenders — Informations—Same Transactions — Same Testimony — Same Place — Same Subject.
    A trial court erred in convicting a criminal defendant as a third offender where it allowed the jury to consider two prior felonies upon which the defendant had been convicted as counting as two felonies under the habitual offenders act in a situation where the two felonies were charged in one information, arose out of the same transaction, were provable by the same testimony, and involved the same place and subject.
    Concurrence in Result by N. J. Kaufman, J.
    3. Statutes — Court Rules — Conflict.

      A court rule supersedes a statute where the court rule and the statute are in conflict.

      4. Trial — Criminal Law-Court Rules — Habitual Offenders — Peremptory Challenges — Life Sentences — Statutes.

      The court rule allowing 20 peremptory challenges in criminal cases where the offense is punishable by life imprisonment applies whenever a defendant can receive a life sentence and is applicable in proceedings under the habitual offender statute where such a sentence is possible; the court rule supersedes the statute providing 5 peremptory challenges in a habitual offender action where the defendant could be sentenced to life imprisonment. (MCL 769.13; MSA 28.1085, GCR 1963, 511.5).

    5. Appeal and Error — Harmless Error — Peremptory Challenges —Habitual Offenders — Statutes—Court Rules.
    A trial court committed error when it applied a statute providing 5 peremptory challenges to a defendant being charged as a fourth time habitual offender where the court should have applied a court rule providing 20 peremptory challenges, but the error is harmless where the Court of Appeals is reversing the defendant’s conviction as a third offender and is remanding for entry of a judgment of conviction as a second offender (MCL 769.13; MSA 28.1085, GCR 1963, 511.5).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Peter C. Jensen, Assistant Prosecuting Attorney, for the people.

      Frank R. Vargas, for defendant.
    Before: J. H. Gillis, P. J., and D. E. Holbrook and N. J. Kaufman, JJ.
   D. E. Holbrook, J.

On December 9, 1976, Jack Ross was convicted by a jury of receiving and concealing stolen property over the value of $100, contrary to MCL 750.535; MSA 28.803. On May 18, 1977, defendant was convicted by a jury as a third-time habitual offender, contrary to MCL 769.11; MSA 28.1083. On June 16, 1977, defendant was sentenced to 6 to 10 years in prison. Defendant appeals as of right.

The facts in the instant case are as follows:

During the evening of February 13, 1976, the back door of the Bedtelyon residence was pried open and several pieces of antique jewelry were taken. The owner of the jewelry identified people’s exhibits 2, 3, 4 and 5 as the missing pieces of jewelry. An antique dealer identified people’s exhibits 2 through 5 as items Jack Ross offered to sell her. She testified that she was aware of the Bedtelyon breaking and entering which caused her to be wary of the items defendant offered for sale. She called the police and they subsequently arrested the defendant.

The defendant testified that he purchased exhibits 2 through 5 at a flea market and had no knowledge that the items were stolen.

Of the issues raised by defendant, only two warrant discussion.

In a fourth habitual offender trial, how many peremptory challenges is a defendant entitled to?

GCR 1963, 511.5 provides in part as follows:

"Each party in a criminal case shall be entitled to 5 peremptory challenges, unless the offense charged is punishable by death or life imprisonment, in which case the defendant shall be entitled to 20 peremptory challenges and the prosecutor shall be entitled to 15 peremptory challenges.”

MCL 769.13; MSA 28.1085 sets out the procedures which shall be used when a supplemental information is filed charging a defendant as a habitual offender. The statute provides in part as follows:

"The usual practice in the trial of criminal cases shall be followed in the empanelling of such jury and the trial of said issue and the prosecuting officer and the accused shall each be allowed 5 peremptory challenges.” (Emphasis added.)

The defendant asserts that a person charged as a fourth offender may receive a life sentence and, therefore, GCR 1963, 511.5 is applicable. Also, defendant maintains that GCR 1963, 511.5 conflicts with MCL 769.12; MSA 28.1084, and where a court rule and statute conflict, the court rule controls. The prosecution asserts that the statute and court rule are not inconsistent, because the habitual offenders act does not create a substantive crime.

In People v Shotwell, 352 Mich 42, 46; 88 NW2d 313 (1958), cert den 356 US 976; 78 S Ct 1141; 2 L Ed 2d 1149 (1958), the Court stated as follows:

"Despite that case, [People v Brown, 253 Mich 537; 235 NW 245; 82 ALR 341 (1931)] however, we further note that substantive crimes are created and defined in our penal code whereas the statutory provisions for second and subsequent offenders are found in our code of criminal procedure. This is some indication, we think, that the legislature did not intend to make a separate substantive crime out of being a habitual criminal but rather, for deterrent purposes, intended to augment the punishment for second or subsequent felonies.”

See also, People v Ungurean, 51 Mich App 262, 265; 214 NW2d 873 (1974).

GCR 1963, 511.5 specifically refers to criminal cases where the offense is punishable by life imprisonment. Since the habitual offender act does not create an offense, the statute and the court rule are not inconsistent.

A person charged as a fourth offender is not entitled to 20 peremptory challenges. The trial court properly rejected the defendant’s request in this case.

The next issue is whether two prior felonies charged in one information upon which defendant had been convicted can be counted as two felonies under the habitual offenders act.

When the supplemental information was filed charging defendant as a fourth-time felon, two of the prior convictions, breaking and entering of an occupied dwelling and possession of burglary tools, arose out of the same transaction. After testimony was presented of the prior felonies, the jury convicted defendant as a third-time felon. Defendant asserts that it was error for the prosecutor to use two convictions that arose out of the same transaction in a habitual offender supplemental information.

In People v Lowenstein, 309 Mich 94, 100-101; 14 NW2d 794 (1944), the Michigan Supreme Court stated:

"Nor does the fact that defendant was convicted and sentenced on both counts result in conviction for two felonies such as to subject the defendant to additional punishment under the habitual criminal act. People v Podsiad [295 Mich 541, 546; 295 NW 257 (1940)].”

See also, 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 761, p 975.

In the instant case, the two counts did not charge inconsistent offenses. Both arose out of the same transaction, both were provable by the same testimony, only one time and place and subject being involved. It was error to allow the jury to count separately the 1969 breaking and entering and possession of burglary tools convictions as*two prior felonies. .

Under the facts of this case, we cannot say that the error was harmless. The defendant was charged as a fourth offender. The jury convicted defendant as a third offender. The prosecutor asserts that even if we consider the 1969 breaking and entering and possession of burglary tools convictions as one conviction for habitual offender purposes, the defendant still previously had committed two other felonies and, therefore, his conviction as a third offender was harmless. This would be true if the jury convicted defendant using the two other felonies and one of the 1969 convictions. However, the jury may have used the two 1969 convictions and one of the two other felonies. Under these facts the error cannot be said to be harmless.

Under the facts of the instant case, a conviction of defendant as a second offender would be proper. MCL 769.10; MSA 28.1082. This Court reverses the conviction of defendant as a third offender and remands the case for entry of a judgment of conviction of defendant as a second offender and resentencing on that charge. 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 of defendant as a third offender. People v Lank Thomas, 399 Mich 826; 249 NW2d 867 (1976).

Affirmed in part and reversed in part.

J. H. Gillis, P. J., concurred.

N. J. Kaufman, J.

(concurring in result). I write separately to concur with the results reached in the "well-written opinion of my esteemed colleague, Judge Holbrook. However, I do not agree with his conclusion that defendant was entitled to only five peremptory challenges. MCL 769.13; MSA 28.1085 grants five. GCR 1963, 511.5 allows twenty. Rules supersede statutes. Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971).

While I agree that a proceeding under an habitual offender statute, in this case MCL 769.11; MSA 28.1083, does not constitute a crime, and was adopted by the Legislature to increase the penalty for previous crimes, People v Shotwell, 352 Mich 42; 88 NW2d 313 (1958), cert den 356 US 976; 78 S Ct 1141; 2 L Ed 2d 1149 (1958), nevertheless, the intent of the court rule is clear to me. It should apply whenever the defendant can receive a life sentence. If the court rule does not apply, why give defendant other rights that surround a criminal prosecution, such as a jury trial composed of twelve rather than six jurors? Note GCR 1963, 511.2.

However, due to the result reached and as defendant should have been tried as a third offender instead of a fourth, and we further reduced it to a second, I find the error to be harmless.


author: J. H. Gillis, P. J. N. J. Kaufman, J.

text:
    PEOPLE v WILLIAMS
    Docket Nos. 77-1705, 77-2196.
    Submitted May 2, 1978, at Lansing.
    Decided June 19, 1978.
    Charles Williams, II, was convicted of armed robbery and assault with intent to commit murder in Oakland Circuit Court, Farrell E. Roberts, J. Defendant appeals, contending that the trial court erred in failing to exercise its discretion on the record in considering defendant’s motion to suppress his prior criminal record, that the prosecutor’s closing argument was prejudicial, and that defendant was denied effective assistance of counsel. Held:

    1. The trial court’s failure to exercise its discretion on the record was error, but reversal is not mandated because after an in-chambers hearing on the matter defense counsel made no more mention of the motion to suppress and in fact waived the error by deliberately introducing the defendant’s prior criminal record, and because the evidence of defendant’s guilt was overwhelming.
    2. The prosecutor’s closing argument was within the bounds of legitimate and effective advocacy.
    3. The assistance of counsel issue is without merit.
    Affirmed.
    N. J. Kaufman, J. , concurs except that he would point out that the remarks of the prosecutor in closing argument, while not amounting to reversible error, were improper and should not be condoned.
    Opinion of the Court
    1. Criminal Law — Evidence—Prior Convictions — Judge’s Discretion.
    A trial judge may in the exercise of his discretion exclude reference to a defendant’s prior conviction record, and it is error to fail to recognize that he has such discretion and, therefore, to fail or to refuse to exercise it.

      References for Points in Headnotes
    [1, 2] 5 Am Jur 2d, Appeal and Error §§ 603, 604, 802.
    29 Am Jur 2d, Evidence § 320.
    [2] 5 Am Jur 2d, Appeal and Error § 562.
    [3] 75 Am Jur 2d, Trial §§ 193, 218-220.
    Supreme Court’s views as to what courtroom statements made by prosecuting attorney during criminal trial violate due process or constitute denial of %ir trial. 40 L Ed 2d 886.

      2. Criminal Law — Evidence—Prior Convictions — Judge’s Discretion — Reversal.
    A trial court’s erroneous failure to exercise its discretion on the record regarding a motion by defendant to exclude his prior conviction record does not mandate reversal where after an in-chambers hearing defense counsel made no further mention of his motion, defendant waived any error by then deliberately introducing his prior criminal record into evidence, and where the evidence of guilt was overwhelming.
    Concurrence by N. J. Kaufman, J.
    3. Criminal Law — Prosecutor’s Comments — Improper Argument.

      A prosecutor’s comment, in closing argument, that a lawyer should argue the facts if the law is against him, the law if the facts are against him and attack the police if both are against him, while it did not amount to reversible error, was improper and should not be condoned.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Thomas S. Richards, Assistant Prosecuting Attorney, for the people.

      James L. Feinberg, for defendant on appeal.
    Before: J. H. Gillis, P. J., and D. E. Holbrook and N. J. Kaufman, JJ.
   J. H. Gillis, P. J.

Defendant was tried and convicted by a jury in Oakland County Circuit Court of armed robbery, contrary to MCL 750.529; MSA 28.797, and assault with intent to commit murder, contrary to MCL 750.83; MSA 28.278. He was subsequently sentenced to concurrent prison terms of 6 to 10 years on the armed robbery charge, and 10 to 20 years on the assault charge.

The charges in the instant matter stem from the robbery of a grocery store in Berkley, Michigan. Defendant, along with three others, was arrested after a two-mile chase and shoot-out on Woodward Avenue in the northern suburbs of Detroit.

Defendant now appeals as of right alleging several instances of error.

At the beginning of trial, defense counsel made a motion to suppress defendant’s prior criminal record. The trial judge responded, concluding:

"I will take that under advisement. I’d like to know a little bit more about what kind of felonious assault occurred. Come to chambers.”

No ruling was ever made upon the record in respect to this motion.

Defendant contends that the trial court committed reversible error in failing to exercise its discretion on the record in response to defendant’s motion to suppress his prior criminal record.

"We are persuaded that a trial judge may in the exercise of discretion exclude reference to a prior conviction record, and that it is error to fail to recognize that he has such discretion and, therefore, to fail or to refuse to exercise it.” People v Jackson, 391 Mich 323, 336; 217 NW2d 22 (1974).
"On order of the Court, defendant’s conviction is peremptorily reversed and a new trial ordered on the ground that defendant sought to have the court exercise its discretion to exclude prior conviction evidence, and it is apparent that the court failed to recognize that it had such discretion and failed to exercise it. See People v Jackson, 391 Mich 323 (1974). In order to comply with Jackson the trial court must positively indicate and identify its exercise of discretion.” People v Cherry, 393 Mich 261; 224 NW2d 286 (1974).

Recent decisions from this Court indicate that the exercise of discretion must be on the record. See People v Gunter, 76 Mich App 483; 257 NW2d 133 (1977), People v Florida, 61 Mich App 653; 233 NW2d 127 (1975).

Our review of the record reveals that the trial court did err in failing to exercise its discretion on the record. However, this error does not mandate reversal in this case. .

After the in-chambers hearing with *the trial judge, defense counsel made no mention of his prior motion to suppress defendant’s prior criminal record. Defense counsel referred to defendant’s prior criminal record in his opening statement, and later, on direct examination, questioned defendant about a prior conviction. Defendant has waived any error by deliberately introducing into evidence his prior criminal record.

"Counsel cannot sit back and harbor error to be used as an appellate parachute in the event of jury failure.” People v Brocato, 17 Mich App 277, 305; 169 NW2d 483 (1969).

We also note that the evidence of guilt is overwhelming in the instant case, and under such circumstances the improper admission of a prior conviction does not constitute reversible error. See People v Killebrew, 61 Mich App 129, 134; 232 NW2d 329 (1975), People v Johnson, 46 Mich App 212, 221; 207 NW2d 914 (1973).

Defendant next contends that the prosecutor’s closing argument was so prejudicial that it denied him a fair trial. We disagree.

The closing argument made by the prosecutor was well within the bounds of legitimate and effective advocacy. We find no error in respect to this issue.

Defendant’s final allegation of error fails in light of People v Jelks, 33 Mich App 425, 431; 190 NW2d 291 (1971), and People v Garcia, 398 Mich 250; 247 NW2d 547 (1976).

Affirmed.

D. E. Holbrook, J., concurred.

N. J. Kaufman, J.

(concurring). I concur in the result reached by the majority opinion and its reasoning except insofar as it states that "[t]he closing argument made by the prosecutor was well within the bounds of legitimate and effective advocacy”. I cannot so classify the prosecutor’s repetition of the old adage that a lawyer should argue the facts if the law is against him, the law if the facts are against him, and attack the police if both are against him. While that remark did not amount to reversible error, it was improper and is not condoned. It should be noted that the remark mentioned above was at variance with an otherwise good closing argument. This, then, is a good opportunity to remind prosecutors thafei a good closing argument is not enhanced by a foray close to forbidden territory. No extra points are given for daring.


author: H. E. Deming, J.

text:
    PEOPLE v ONE 1973 PONTIAC AUTOMOBILE
    Docket No. 77-1907.
    Submitted May 10, 1978, at Lansing.
    Decided June 19, 1978.
    In February, 1977, a 1973 Pontiac automobile was seized, incident to the arrest of its owner, pursuant to a section of the Controlled Substances Act. The prosecutor filed to institute a proceeding for the forfeiture of the vehicle. Notice of the proceeding was served upon the vehicle’s owner, who filed an answer and a motion to dismiss. The Oakland Circuit Court, William J. Beer, J., granted the motion to dismiss, finding that the forfeiture provision of the statute unconstitutionally fails to provide the vehicle owner with procedural due process because of a lack of provision for notice and hearing in connection with forfeiture of a vehicle. The people appeal. Held:

    The statutory forfeiture provision is construed to require the prompt institution of in rem judicial proceedings with service of a copy of the complaint and summons upon the vehicle owner, and the procedural details are controlled by statute and court rule. The statute meets the constitutional requirements of due process.
    Reversed and remanded.
    1. Statutes — Constitutional Law — Construction—Presumption op Constitutionality.
    It is the'duty of a court to give the presumption of constitutionality to a statute and construe it as constitutional unless the contrary clearly appears.
    2. Constitutional Law — Criminal Law — Statutes—Forfeiture of Vehicle — Due Process — Notice—Hearing.
    A statute which provides for the forfeiture of vehicles seized incident to an arrest requires, upon such seizure, the prompt institution of in rem judicial forfeiture proceedings with service of a copy of the complaint and summons upon the vehicle owner; the statute meets the constitutional requirements of procedural due process regarding notice and hearing in connection with the forfeiture of a vehicle (MCL 335.355; MSA 18.1070[55]).

      References for Points in Headnotes
    [1] 16 Am Jur 2d, Constitutional Law § 137.
    73 Am Jur 2d, Statutes §§ 37, 42, 103, 123.
    [2] 36 Am Jur 2d, Forfeitures and Penalties §§ 8, 25, 36.

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

      Peres, Carr, Jacques, Batchik & Schmidt, for appellee.
    Before: Beasley, P. J., and Allen and H. E. Deming, JJ.

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

   H. E. Deming, J.

This is an appeal as of right by the people from an order dismissing a proceeding pursuant to MCL 335.355; MSA 18.1070(55) for the forfeiture of a 1973 Pontiac automobile seized incident to a narcotics arrest. Dismissal was based on a finding that the statutory forfeiture provision unconstitutionally fails to provide the vehicle owner with procedural due process in that the statute contains no provision for notice and hearing in connection with the forfeiture of a vehicle.

A prior forfeiture statute, MCL 335.156; MSA 18.1126, was held unconstitutional for lack of due process provisions in People v Raymond Campbell, 39 Mich App 433, 443; 198 NW2d 7 (1972). The Campbell Court found that the prior statute, even when read in conjunction with MCL 600.4541; MSA 27A.4541, provided only a nonmandatory postforfeiture action by the Attor\dy General. Thus, there was "no guarantee that due process will be provided in every case”, and "the forfeiture statute at issue cannot be upheld simply because notice and a hearing were actually provided”. Campbell, supra, at 442, 439.

In the instant case the people contend that the present forfeiture provision requires the prompt institution of judicial proceedings upon seizure of the property and prior to forfeiture and that consequently Campbell does not apply.

The vehicle’s owner points out, however, that the present statutory provision requires no notification of the vehicle owner and fails to assure the owner an opportunity for a hearing. Consequently, the owner argues that Campbell does apply, and requires a finding of unconstitutionality. Both parties agree that absent adequate notice and hearing provisions with respect to the vehicle owner, the statute would be invalid.

In People v McQuillan, 392 Mich 511, 536-537; 221 NW2d 569 (1974), the Court in construing a statutory provision requiring commitment to a mental hospital stated:

"The construction placed on this language by the trial judge that there is no provision for a hearing is a reasonable one. However, it is the duty of the Court to give the presumption of constitutionality to a statute and construe it as constitutional unless the contrary clearly appears. See Cady v Detroit, 289 Mich 499, 505; 286 NW 805 (1939); Sullivan v Michigan State Board of Dentistry, 268 Mich 427, 429-430; 256 NW 471 (1934).
"Due process and equal protection require a hearing. We find nothing in MCLA 767.27b which precludes a hearing and since Baxstrom [v Herold, 383 US 107; 86 S Ct 760; 15 L Ed 2d 620(1966)] and Specht [v Patterson, 386 US 605; 87 S Ct 1209; 18 L Ed 2d 326 (1967)] require one, we deem it necessarily implicit in our statute.”

Applying these principles in the instant case, we conclude that the statute at issue is constitutionally valid. MCL 335.355; MSA 18.1070(55), reads in part as follows:

"(1) The following are subject to forfeiture:
"(d) All conveyances, including aircraft, vehicles or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in subdivisions (a) or (b), but: * * * .
(2) Property subject to forfeiture under this act may be seized by the department of licensing and regulation upon process issued by the circuit court having jurisdiction over the property. Seizure without process may be made in any of the following cases:
"(a) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant.
"(3) In the event of seizure pursuant to subsection (2), proceedings under the subsection (4) shall be instituted promptly.
"(4) Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the department of licensing and regulation subject only to the orders and judgments of the court having jurisdiction over the forfeiture proceedings. * * * .”

We construe the statute as requiring, in the circumstances of the instant case, the prompt institution of in rem judicial forfeiture proceedings with service of a copy of the complaint and summons upon the vehicle owner. Once such a proceeding has been instituted in the circuit court, the procedural details are controlled by statute and court rule. These due process requirements are necessarily implicit in the statute. In the instant case the vehicle was seized on February 15, 1977. On March 23, 1977, an in rem civil proceeding for the forfeiture of the vehicle was filed by the county prosecutor. Notice was served on the vehicle owner who, on April 11, 1977, filed an answer and motion to dismiss. The hearing resulting in dismissal was held on April 20 and 21, 1977. We find that these actions both complied with the statute as construed herein and provided the vehicle owner with adequate notice and opportunity for a hearing.

We hold that MCL 335.355; MSA 18.1070(55), as construed in this opinion, meets the constitutional requirements of procedural due process. Consequently, we reverse the circuit court and remand for further proceedings consistent with this opinion.

Reversed and remanded. No costs.


author: H. E. Deming, J. Beasley, P. J

text:
    HUTCHINS v HUTCHINS
    Docket No. 77-4062.
    Submitted May 9, 1978, at Lansing.
    Decided June 19, 1978.
    Gary Hutchins commenced a divorce action against Linda Hutch-ins. Linda Hutchins filed a counter-complaint. A divorce was granted and the custody of the couple’s two minor children was awarded to the defendant, Linda Hutchins. The divorce judgment provided that the domicile or residence of the minor children shall not be removed from the State of Michigan without the prior approval of the court. The defendant subsequently filed a motion for approval to move the children to Florida. The motion was denied, Oakland Circuit Court, William John Beer, J. Defendant appeals. Held:

    In deciding on such a motion the best interests of the children are to be considered. The trial judge failed to consider this in reaching his decision.
    The matter is reversed and remanded for a hearing before a new trial judge for consideration of the best interests of the children.
    Beasley, P. J., concurred. He would further hold that such a motion should be routinely granted in the absence of compelling reason to the contrary.
    Opinion of the Court
    1. Divorce — Infants-—Child Custody — Removal of Minor Children From State — Discretion—Court Rules — Statutes.
    The granting or denial of a motion for approval to remove minor children from the State of Michigan is entrusted to the discretion of the trial judge who granted the divorce judgment containing the custody order; his decision will be affirmed, absent a palpable abuse of discretion (MCL 722.28; MSA 25.312[8], GCR 1963, 729.4[1]).
    References for Points in Headnotes
    [1-5] 24 Am Jur 2d, Divorce and Separation §§ 779, 798.
    [2] 24 am Jur 2d, Divorce and Separation §§ 783, 820-824.
    [4] 24 Am Jur 2d, Divorce and Separation §§ 791, 793, 794.

      2. Divorce — Infants—Child Custody — Best Interests of Child— Removal of Minor Children From State — Statutes.
    The "best interests of the child” standard applies not only to custody decisions in an original divorce proceeding but also to all actions involving a dispute of custody of a minor child; a decision on a motion for approval to remove minor children from the state should be based on this standard (MCL 722.23, 722.24; MSA 25.312[3], 25.312[4]).
    3. Divorce — Infants—Child Custody — Visitation—Best Interests of Child — Removal of Child From State.
    A divorced parent’s right to visitation is one factor to be considered in determining the best interests of a child when considering the other parent’s motion for approval to remove the child from the state; however, it is not the controlling factor and must yield to the best interests of the child.
    4. Divorce — Infants—Child Custody — Removal of Minor Children From State — Best Interests of Child.
    A trial judge’s denial of a motion brought by a parent who has custody of minor children under a judgment of divorce for approval to remove the minor children from the state should be reversed and the matter remanded for a hearing to determine the best interests of the children where the record indicates that the trial judge did not consider the best interests of the children in denying the motion.
    Concurrence by Beasley, P. J.
    5. Divorce — Infants—Child Custody — Removal of Minor Children From State — Statutes.

      A motion by a parent who has custody of the children under a judgment of divorce for approval to remove the children from the state should be routinely granted in the absence of compelling reasons to the contrary (MCL 600.651 et seq.; MSA 27A.651 et seq.).

      Levine & Benjamin, P. C. (by Allan H. Tush-man), for plaintiff.

      Norman L. Zemke, for defendant.

      Before: Beasley, P. J., and Allen and H. E. Deming,  JJ.

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

   H. E. Deming, J.

On April 16, 1976, defendant was awarded a judgment of divorce and custody of her two minor children. That judgment provided that the domicile or residence of said minor children shall not be removed from the State of Michigan without the prior approval of the court, as required by GCR 1963, 729.4(1). Defendant filed a motion to obtain the court’s approval to move to Florida with the children, but this motion was denied. Defendant appeals as of right.

The granting or denial of a motion for approval to remove minor children from the State of Michigan under GCR 1963, 729.4(1) is entrusted to the discretion of the trial judge, Lem v Lem, 12 Mich App 174; 162 NW2d 683 (1968), and his decision will be affirmed unless he commits a palpable abuse of discretion, MCL 722.28; MSA 25.312(8). Although GCR 1963, 729.4(1) does not specify any guidelines for determining when the trial court should grant the motion to remove the children from the state, see Lem, supra, at 176, the decision should be based on the "best interests of the child” standard set out in MCL 722.23; MSA 25.312(3). This standard applies not only in the original divorce proceeding but also in all actions involving a dispute of custody of a minor child, see MCL 722.24; MSA 25.312(4).

The trial judge’s opinion does not indicate that he used this standard in determining whether, in the exercise of his discretion, to approve this motion for a change in residence. If anything, the record indicates that the judge denied this motion on the grounds that he never granted a motion for change in residency unless both parents consented to it. While a parent’s right to visitation is one factor to be considered, to the extent that it is relevant to determining the best interests of the child, it is not the controlling factor in these cases. The right to parental visitation must yield to the best interests of the child, Kane v Kane, 241 Mich 96; 216 NW 437 (1927), Lewis v Lewis, 338 Mich 197; 61 NW2d 66 (1953).

After a careful review of the record, we have been unable to discover any discussion of the factors which the statute requires the judge to consider, evaluate and determine. Numerous cases involving child custody have been remanded by this Court because of inadequate findings of fact on the trial record, see, e.g., Barnes v Barnes, 77 Mich App 112; 258 NW2d 65 (1977), In re Custody of James B, 66 Mich App 133; 238 NW2d 550 (1975), Zawisa v Zawisa, 61 Mich App 1; 232 NW2d 275 (1975). Therefore, this case is remanded to the circuit court to conduct a new hearing before a new trial court, see Bylinski v Bylinski, 25 Mich App 227; 181 NW2d 283 (1970), Williams v Williams, 18 Mich App 305; 170 NW2d 850 (1969). In consideration of the best interests of the child, this hearing should be conducted and the order entered as soon as administratively possible. We do not retain jurisdiction.

Reversed and remanded. Costs to defendant.

Allen, J., concurred.

Beasley, P. J

(concurring). I concur in the result.

However, I would add that, in the absence of compelling reasons to the contrary, permitting a child to be removed from the State of Michigan to a new, satisfactory location, should be routinely granted.

We live in a transient society. With respect to the best interests of a child, state boundaries are artificial and meaningless; there is no presumption that bringing up a child in Michigan has any advantage (or disadvantage) over Missouri or Georgia, or any other state. To conclude otherwise would be a meaningless generalization. Restrictions upon where a custodial parent may live, in terms of geography, are not realistic. In every state there are good and bad places to bring up a child. To say that a custodial parent cannot move a child to any location in Florida, solely because it is outside of Michigan and in Florida, is patently arbitrary and capricious.

I do not anticipate that the filing of a petition for removal of a child from the state would be an automatic occasion for a full custody hearing. Only where there are additional facts that give rise to inquiry regarding the well-being and best interests of the child does a change of address indicate a need for anything more than a perfunctory hearing. This is not to say that the factor of distance has no effect on visitation rights of the noncustodial parent and, perhaps, on the amount of child support payable.

       GCR 1963, 729.4(1) and (2) should be considered, together with GCR 1963, 727.2(3) and (4). Reference should also be had to the Uniform Child Custody Jurisdiction Act which became- effective March 31, 1976, MCL 600.651 et seq.; MSA 27A.651 et seq., which recognizes the transience of our late 20th century society.

       As indicated, the application of the Child Custody Act (MCL 722.21 et seq.; MSA 25.312(1) et seq.) is not automatic, but there may be situations where change of residence or domicile will give rise to their application.

        E.g., a trial judge might consider the cost of visiting a child residing in Hawaii as justifying lesser child support. With respect to visitation, we take judicial notice that jet air travel reduces the time between the most distant locations in the United States under ten hours.


author: Bashara, J. Danhof, C. J.

text:
    YELLOW FREIGHT SYSTEM, INC. v PSC (AFTER REMAND)
    Docket No. 23211.
    Submitted June 10, 1976, at Lansing.
    Decided June 20, 1978.
    Leave to appeal applied for.
    In 1961 Yellow Freight System, Inc., held a certificate of authority to operate a motor vehicle freight carrier service over certain intrastate routes in southeastern Michigan. In that same year, Yellow entered into an agreement to transfer that certificate to Central Transport, Inc. An action was commenced before the Public Service Commission by competitors of Yellow seeking a determination that Yellow had discontinued certain of its intrastate service routes for more than ten days and that its certificate for such service was revoked by operation of law. The PSC found in favor of Yellow. On appeal to circuit court, the Ingham Circuit Court overturned the PSC determination. An appeal was then taken to the Michigan Supreme Court which reversed the circuit court because of erroneous findings of fact and remanded the case to the PSC to reopen proofs, Associated Truck Lines, Inc v Public Service Comm, 377 Mich 259 (1966). After additional hearings the PSC concluded that there had been a discontinuation of service by Yellow for more than ten days and that its certificate of authority was revoked by operation of law due to the abandonment. The Ingham Circuit Court affirmed. Yellow and Central appealed to the Court of Appeals which affirmed in part and reversed in part and remanded to the PSC for further proceedings, Yellow Freight System, Inc v Public Service Comm, 73 Mich App 476 (1977). Upon remand the PSC again concluded that Yellow’s certificate was revoked by operation of law. The findings made by the PSC were transmitted to the Court of Appeals. After remand the Court of Appeals held:

    The facts found by the PSC have adequate evidentiary support; however, the PSC inappropriately focused on the intent of the shipper and not the carrier in determining that the ship-merits in question were interstate in nature rather than intrastate. The PSC’s decision was based upon an erroneous application of the controlling legal principles and since intrastate service was rendered during the time in question, the carrier’s certificate of authority was not revoked by operation of law.

      References for Points in Headnotes
    [1] 15A Am Jur 2d, Commerce § 4.
    [2, 5] 13 Am Jur 2d, Carriers §§ 95, 96.
    [3] 64 Am Jur 2d, Public Utilities § 284.
    [4] 2 Am Jur 2d, Administrative Law § 691.

      Reversed.
    Danhof, C. J., dissented. He would hold that there was competent evidence to support the PSC’s finding that there was no intrastate service rendered by Yellow during the time period in question and that since no services were provided under the provisions of the act pertaining to discontinuance of service over intrastate routes, the certificate of authority was revoked by operation of law. He would affirm.
    Opinion of the Court
    1. Carriers — Common Carriers — Interstate Shipments — Intrastate Shipments.
    Merely because shipments wholely within the state contain cargo that the shipper intends to subsequently transport to a destination outside the state does not mean that the shipment was interstate when viewed from the position of the carrier; nor does the fact that interstate and intrastate cargo is carried in the same trailer mean that intrastate service has not been rendered by the carrier.
    2. Carriers — Common Carriers — Administrative Law — Public Service Commission — Intrastate Shipments — Certificate of Authority.
    The revocation of a common carrier’s certificate to operate over certain intrastate routes requires a finding by the Public Service Commission that no intrastate shipments were made for the statutorily prescribed period (MCL 476.13; MSA 22.546).
    Dissent by Danhof, C. J.
    3. Administrative Law — Public Service Commission — Appeal and Error — Statutes.

      A party appealing from an order of the Public Service Commission has the burden of showing by clear and convincing evidence that the commission’s determination is unlawful or unreasonable (MCL 479.20; MSA 22.585).

    4. Appeal and Error — Administrative Law — Findings of Fact— Evidence.

      Findings of fact by an administrative agency should not be overturned if they are supported by competent evidence.

      5. Carriers — Common Carriers — Administrative Law — Public Service Commission — Intrastate Shipments — Interstate Shipments — Certificate of Authority — Revocation of Certificate of Authority — Abandonment.

      The revocation of a common carrier’s certificate of authority to operate over intrastate routes because of discontinuance of service over the routes requires a finding by the Public Service Commission that no intrastate services were provided for a statutorily prescribed period; services performed by a common carrier under a certificate of public convenience and necessity from the Interstate Commerce Commission are not services performed under the statute which authorizes the revocation of a certificate of authority to operate over intrastate routes where the service has been discontinued (MCL 476.13; MSA 22.546).

      Farhat, Burns & Story, P. C., and Clark, Klein, Winter, Parsons & Prewitt (by Arthur P. Boynton), for plaintiff Yellow Freight System, Inc.

      Albert Green, for plaintiff Central Transport, Inc.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Walter V. Kron and Marvin L. Bromley, Assistants Attorney General, for Michigan Public Service Commission.

      Matheson, Bieneman, Parr, Schuler & Ewald (by John W. Ester), for intervening defendants Associated Truck Lines, Inc., Ogden & Moffett Company, Earl C. Smith, Inc., and United Truck Service, Inc.

      Warner, Norcross & Judd (by Joseph M. Sweeney), for defendant Associated Truck Lines, Inc.
    Before: Danhof, C.J., and Bashara and D. T. Anderson, JJ.

      After Remand

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

   Bashara, J.

Plaintiffs appeal a decision of the Michigan Public Service Commission holding that their certificate of authority to operate over a certain intrastate route was revoked by operation of law pursuant to 1933 PA 254, § 13. MCL 476.13; MSA 22.546.

We need not review the 17-year history of this controversy, nor specify the facts. Both are adequately delineated in our previous opinion. See Yellow Freight System, Inc v Public Service Comm, 73 Mich App 476; 252 NW2d 495 (1977).

The fact-finding ambiguity, with which our previous opinion was concerned, has been resolved by the revised opinion of the PSC. Therefore, in conjunction with our conclusion on this issue in our prior opinion, we hold that the facts found by the PSC have adequate evidentiary support.

In reaching its decision, the PSC considered the "essential character” of the shipments made during the period in which it was claimed that no intrastate shipments occurred. Finding that the shipments were "essentially” interstate in character, the PSC concluded that no intrastate shipments were made for more than ten days.

Specifically, the PSC found that during the period in question there was some separation in shipments between Marysville and Centerline. However, it was also found that these shipments were merely incidental to an interstate purpose, because the trailers used continued on to a destination outside of Michigan. The nature of the facility at which the separation occurred was also considered as indicative of an interstate purpose.

Support for utilizing an "essential character” standard was derived from two cases concerned with the rate structures applicable to the shipments involved. Those cases necessarily focused upon the intention of the shipper, not the carrier, in determining whether the shipments were to be carried at interstate or intrastate rates. But that perspective is inappropriate for deciding whether a carrier has rendered intrastate service.

Merely because shipments wholely within the state contain cargo that the shipper intends to subsequently transport to a destination outside the state does not mean that from the carrier’s position the shipment was interstate. Nor does the fact that interstate and intrastate cargo is carried in the same trailer mean that intrastate service has not been rendered by the carrier.

The facts found by the PSC indicate that intrastate shipments were made during the pertinent period. To revoke the carrier’s certificate of authority requires a finding that no intrastate shipments were made for the statutorily prescribed period. Associated Truck Lines, Inc v Public Service Comm, 377 Mich 259, 291; 140 NW2d 515, 528 (1966), J E Bejin Cartage Co v Public Service Comm, 352 Mich 139, 151; 89 NW2d 607, 614 (1958). Consequently, the decision of the PSC is based upon an erroneous application of the controlling legal principles. Since intrastate service was rendered during the time in question, the carrier’s certificate of authority was not revoked by operation of law.

Reversed. No costs, a public question being involved.

D. T. Anderson, J., concurred.

Danhof, C. J.

(dissenting). On appeal, the burden of proof is on appellant to show by clear and satisfactory evidence that the commission’s determination is unlawful or unreasonable, MCL 479.20; MSA 22.585, Short Freight Lines, Inc v Public Service Comm, 25 Mich App 408; 181 NW2d 560 (1970). Findings of fact by an administrative agency are not to be overturned if they are supported by competent evidence, Associated Truck Lines, Inc v Public Service Comm, 377 Mich 259; 140 NW2d 515 (1966), J E Bejin Cartage Co v Public Service Comm, 352 Mich 139; 89 NW2d 607 (1958). I would hold that there is competent evidence to support the Public Service Commission’s findings of fact, and that the facts found adequately support the result reached.

I disagree with the majority’s conclusion that the facts found by the Public Service Commission indicate, as a matter of law, that appellants did not "discontinue any service established under the provisions of this act”, MCL 476.13; MSA 22.546. To revoke a carrier’s certificate of authority requires a finding that no services were provided under the provisions of the act, Associated Truck Lines, Inc, supra, J E Bejin Cartage Co, supra. Services performed under a certificate of public convenience and necessity from the Interstate Commerce Commission are not "services provided under the provisions of this act”, Associated Truck Lines, Inc, supra, at 274. The Public Service Commission found as a fact that the shipments in question moved from the shipper’s plant in Marysville, Michigan, to a distribution center in Center-line, Michigan. These less-than-full load shipments were carried on a truck and trailer which continued on to deliver the remainder of the load outstate. The Public Service Commission went on to find that the separation of goods at the distribution center was for the purpose of interstate delivery. There is competent evidence, from the testimony taken and the circumstantial evidence presented, including the nature of the facilities, to support this finding. This evidence is sufficient to support a finding of a fixed and persistent intention to ship interstate and therefore, that interstate shipment had commenced, Baltimore & O S W R Co v Settle, 260 US 166; 43 S Ct 28; 67 L Ed 189 (1922). In Southern Pacific Transportation Co v Interstate Commerce Comm, 565 F2d 615 (CA 9, 1977), the Court held that the respondent had not introduced sufficient evidence to support a finding of a fixed and persistent intention to ship interstate, but the facts in this case are adequate to support a finding of such intent. Even after reviewing the facts from a carrier’s perspective, they adequately support a finding of a discontinuance. Since the findings of fact support the Public Service Commission’s determination that no services were "provided under the provisions of this act”, I would affirm their decision.

        See Yellow Freight System, Inc v Public Service Comm, 73 Mich App at 485-488; 252 NW2d at 499-500.

       The pertinent text of the PSC opinion is as follows:
      "The next question to be considered is the nature of the shipments between Marysville and Centerline. It is generally true that the question is determined by the essential character of the commerce, the most important factor being the presence or absence of a fixed and persisting intent of the shipper that his goods move to a destination in another state. Baltimore & OS WR Co v Settle, 260 US 166, 43 S Ct 23; 67 L Ed 189 (1922).
      "Case law does support appellant’s contention that for-hire motor transportation within the confines of a single state, of property which has moved from or will move to points beyond the same state by private carriage, is intrastate. Report of Interstate Commerce Commission, 94 MCC 541. Also, wherever a separation in fact exists between transportation services wholly within the state and that between the states, a like separation may be recognized between the control of the state and that of the nation. Chicago and Eastern Illinois R Co v Public Service Commission of Indiana, 205 Ind 253 [186 NE 330] (1933).
      "In this case, the record establishes that there was a separation in fact between transportation service wholly within the state and that between the states. However, the shipments in question were purely incidental to the interstate purpose being carried out, inasmuch as the trailers used for such shipments went from Centerline to destinations in other states which were known when the shipments originated. There is no evidence to support a finding that the separation of goods occurring in Centerline was for the purpose of intrastate delivery. In fact, all the evidence is to the contrary, including testimony regarding the nature of the facilities at Centerline.”

       The facility was Chrysler Corporation’s national parts distribution center at Centerline, Michigan.

       In Baltimore & OSWR Co v Settle, 260 US 166, 170; 43 S Ct 28; 67 L Ed 189 (1922), the Court concluded that "whether the interstate or the intrastate tariff is applicable depends upon the essential character of the movement”. Nothing in the opinion of Mr. Justice Brandéis would suggest that the essential character of shipments should alter the nature of the service rendered by a carrier shipping certain cargo between two points within the same state.
      Similarly, in Chicago & Eastern I R Co v Public Service Comm, 205 Ind 253; 186 NE 330 (1933), the issue concerned the applicable rates chargeable by a carrier transporting freight within the state, but ultimately destined for points outside the state. The Court held:
      "The movement from the Sunnyside mine to the interchange track at Devon street was no part of an interstate movement. It was not by said movement placed in interstate commerce, as the journey to another state had not yet begun. The cars were delivered to the purchaser at the place agreed upon, and there accepted by it and removed to its yards, to await distribution. It is our judgment that interstate commerce did not actually begin till the cars were assigned to their destination and had started on their final journey out of the state. ” Id. at 262; 186 NE at 333. (Emphasis added.)
      Even if this rationale was applicable to the case under review, the shipments made from Marysville to Centerline would retain their intrastate character, since the carrier did not commence any transportation of the separated cargo in interstate commerce. This result is not changed by the fact that such cargo was shipped in vehicles with other cargo that continued on to destinations outside the state.

       See my opinion in Yellow Freight System, Inc v Public Service Comm, 73 Mich App 476, 490; 252 NW2d 495 (1977).

       This fact distinguishes this case from Southern Pacific Transportation Co v Interstate Commerce Comm, 565 F2d 615 (CA 9, 1977). In Southern Paciñc Transportation, no trailer moved interstate. In the instant case, the carrier was engaged in interstate commerce and therefore subject to regulation by the ICC. I would agree that if the facts showed no interstate movement, then Southern Paciñc Transportation would control.

       The "carrier’s perspective” standard is suggested in the majority opinion, supra, and some of the reasons supporting the use of this standard are set out in Associated Truck Lines, Inc v Public Service Comm, 377 Mich 259, 289-291; 140 NW2d 515 (1966).


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

text:
    PEOPLE v STEPHENS PEOPLE v JESSE SMITH
    Docket Nos. 28978, 29186.
    Submitted February 21, 1978, at Detroit.
    Decided June 20, 1978.
    Ronald Stephens and Jesse Smith were convicted in Recorder’s Court of Detroit, Geraldine B. Ford, J., of second-degree murder. Defendant Stephens requested an instruction on abandonment. Defendant Smith requested instructions on self-defense and manslaughter. None of these instructions were given to the jury. Their appeals have been consolidated and a single issue, failure to instruct on a defense theory of the case, is dispositive. Held:

    1. A requested instruction on abandonment should be given where evidence indicated that a defendant in a felony murder trial, prior to a shooting and by his own volition, decided to exit the premises before any criminal act was committed.
    2. A requested instruction on self-defense is required where there was sufficient factual support for a claim of self-defense.
    Reversed and remanded.
    Beasley, J., dissents. He would hold that a trial judge need not give full instructions on theories of defense where there is not sufficient evidence to require an instruction on the subject.
    Opinion of the Court
    1. Judges — Criminal Law — Instructions to Jury — Theories of Parties — Requests for Instructions — Evidence—Abandonment — Self-Defense—Court Rules.
    A trial judge is required by court rule to give instructions on the theories of the parties, such as abandonment and self-defense, if they are requested and supported by some evidence; this requirement holds even if the factual evidence disputing the theory is overwhelming (GCR 1963, 516.7).
    Reference for Points in Headnotes
    [1, 2] 75 Am Jur 2d, Trial §§ 698, 699.

      Dissent by Beasley, P. J.
    2. Judges — Criminal Law — Instructions to Jury — Theories of Parties — Evidence—Abandonment—Self-Defense.

      A defendant is entitled, under the court rules, to have the trial judge indicate to the jury his theory of his case, but a trial judge need not give a full instruction regarding a subject, such as abandonment or self-defense, where there is not sufficient evidence to support it; merely asserting a possible defense is to be distinguished from the question of whether there is enough evidence to require an instruction on a subject (GCR 1963, 516.7).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Research, Training & Appeals, and Frank J. Bernacki and Brian Marzec, Assistants Prosecuting Attorney, for the people.

      BeGole, Lukomski, Maddock & McDonald, for defendant Ronald Stephens.

      Raymond E. Willis, for defendant Jesse Smith.
    Before: Beasley, P. J., and Bashara and D. C. Riley, JJ.
   D. C. Riley, J.

Defendants Ronald Stephens and Jesse Smith, tried jointly by a jury on a charge of felony murder, MCL 750.316; MSA 28.548, were convicted of the lesser included offense of second-degree murder, MCL 750.317; MSA 28.549, and sentenced to terms of 40 to 60 years in prison. Their appeals have been consolidated.

Although each defendant raises several issues, we find reversible error in a common issue; i.e., failure to instruct on a defense theory of the case. A short summary of the facts is necessary.

The prosecution’s principal witness, Donald Webster, testified that on the date in question he, defendants Smith and Stephens, and one other person, embarked on a plan to commit a robbery. The four men entered one store, but subsequently abandoned the planned robbery and left the store. Shortly thereafter, they entered a second store with the intent to rob the cash register.

Webster testified that after they were in the store for a few minutes, he, Stephens, and the fourth person agreed to leave without committing the robbery. Stephens then called to Smith to leave, whereupon Smith motioned the three to remain. According to Webster, while the three men were at the door, preparing to leave, they heard a shot. Webster then ran from the store.

A Detroit police officer testified that he took a statement from defendant Smith shortly after his arrest. In the statement Smith admitted shooting the proprietor of the store, but stated that he shot because the man had started to pull a gun on him and he (Smith) feared that the man was about to shoot him. Smith denied intending to rob the store and denied announcing a holdup before the deceased started to pull his gun.

The officer also took a statement from defendant Stephens. In that statement Stephens admitted that he was armed and intending to rob a store along with three other men. The four entered one store but left without committing a robbery, and then they entered a bookstore. After looking around for a few minutes, Stephens stated, he heard a shot, whereupon the four men then ran from the store.

Defendant Stephens, in writing, requested an instruction on abandonment. Defendant Smith requested instructions on self-defense and manslaughter. None of these requested instructions were given.

A trial judge is required by court rule to give instructions on the theories of the parties if they are requested and supported by some evidence. GCR 1963, 516.7. This requirement holds even if the factual evidence disputing the theory is overwhelming:

"Defendant’s testimony, taken together with his written request to charge, entitled him to an instruction regarding accidental homicide. The fact that the evidence of defendant’s guilt was overwhelming does not excuse the trial judge’s failure to comply with the court rule. Even the most guilty defendant is entitled to have the trial judge tell the jury what his theory of defense is. Particularly, this is true where defense counsel expressly so requests in writing. Even when the evidence of guilt is overwhelming, such error is not harmless; the guilty verdict must be overturned and the case remanded for a new trial.” People v Savoie, 75 Mich App 248, 251; 255 NW2d 11 (1977).

The request for an instruction on abandonment should have been given. There was evidence presented (Donald Webster’s testimony) that defendant Stephens had, by his own volition, decided to exit the bookstore before any criminal act was committed. While the law in Michigan is unclear on whether abandonment is a defense to an attempt, Stephens was not convicted of felony murder because of an attempted armed robbery. He was convicted as an aider and abettor to second-degree murder. The jury should have been instructed that a theory of Stephens’ defense was that he had abandoned any joint effort with Smith prior to the shooting.

Similarly, the instruction on self-defense should have been given in regard to defendant Smith. The statement taken from Smith, and introduced by the prosecution, gave sufficient factual support for a self-defense claim. Even though the prosecution may be correct that self-defense is not a defense to felony murder, it clearly is a defense to second-degree murder. Notwithstanding the other prosecution evidence, the requested instruction should have been given in connection with the instruction on second-degree murder. People v Savoie, supra.

On remand, a renewed request for an instruction on manslaughter should be ruled upon in light of the Supreme Court’s recent opinion in People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978).

The convictions are reversed and remanded.

Bashara, J., concurred.

Beasley, J.

(dissenting). I respectfully dissent.

With respect to defendant Stephens, reversal is based on failure to give an instruction regarding abandonment.

Defendants Smith and Stephens, and two others, Donald Webster and Franklin Fleming, a juvenile, decided to rob a store; defendant Smith armed himself with a handgun and defendant Stephens with a small, sawed-off shotgun; they went to rob a Goodwill store, but changed their minds and decided a book store would be the target to rob.

After being in the store for several minutes, defendant Smith shot and killed the store owner who was armed with a gun in his belt. Neither defendant Smith nor defendant Stephens testified. Webster, one of the original robbers, did testify.

The argument is that Webster’s testimony indicates that defendant Stephens, Webster and Fleming, abandoned the intent to rob the book store. Defendant Stephens says the trial court’s refusal to instruct regarding the alleged abandonment was reversible error.

In general, I accept the statement of facts of my distinguished colleagues. However, I do not agree that there was evidence of abandonment before any criminal act was committed. In my opinion, entry into the book store by defendant Stephens, with intent to rob while armed with a sawed-off shotgun concealed inside his pant leg, constituted the completed offense of attempted armed robbery or conspiracy to commit armed robbery.

I would agree with the trial court that it was legally too late for defendant Stephens to abandon his criminal intent. Furthermore, Webster’s testimony that when defendant Smith signalled him (Webster) and defendant Stephens to hold on (stay in the store), they did stay in the store for two to three more minutes during which time defendant Smith shot and killed the storekeeper, would, in my opinion, defeat any proposition that there was sufficient evidence of abandonment to require an instruction regarding abandonment. The fact that defendant Stephens, still armed with his sawed-off shotgun, did not leave the store, although he had plenty of time to leave, destroys any inference of abandonment. If he had testified, a fact issue regarding his intent might have been raised. But he did not testify. His position rests entirely on Webster’s testimony which testimony was insufficient to support the conclusion of abandonment. Under these circumstances, I would not consider it error to deny a request for an instruction regarding abandonment.

With respect to defendant Smith, reversal is based on failure to give a self-defense instruction.

Like Stephens, defendant Smith did not testify. His claim of self-defense rests upon the testimony of a police officer who testified regarding a statement Smith made after he was arrested. I would not believe the contents of the statement sufficient to raise a question of self-defense such as to require a self-defense instruction. The only other testimony relative to the actual killing came from Donald Webster’s aunt, who testified defendant Smith said he grabbed the victim from the back with his arm around the victim’s neck and shot the victim when he thought the victim was reaching in his pocket for a gun.

Under these circumstances, denial of a self-defense instruction did not constitute error.

This case is clearly distinguishable from People v Savoie where the defendant testified and claimed his gun went off by mistake. While defendant is entitled under the court rules to have the trial judge indicate to the jury his theory of his case, a trial judge need not give a full instruction regarding a subject, e.g., self-defense, where there is not sufficient evidence to support it. Merely asserting a possible defense is to be distinguished from whether there is enough evidence to require an instruction on a subject.

Contrary to my able colleagues, I would vote to affirm the convictions.

       Pursuant to Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968), neither statement mentioned the name of the other codefendant when admitted at trial. Because of our disposition of the case, we will not at this time discuss the issue of whether the method used to "Brutonize” the statements was sufficient.

        See generally, 22 CJS, Criminal Law, § 76, pp 234-235.

       Michigan Proposed Criminal Jury Instructions, § 16:1:16.

       A police officer testified, without objection, as to a statement allegedly made by defendant Stephens which statement does not indicate any claim of abandonment of the robbery.

       But not if he testified the same as in his alleged statement to the police officer.

       Defendant Smith first made an oral statement, the police officer wrote it down and defendant Smith signed it. Then, defendant Smith made a second oral statement, the police officer wrote it down, but defendant Smith refused to sign. It is the second statement upon which the subsequent claim of alleged self-defense rests.

         People v Savoie, 75 Mich App 248; 255 NW2d 11 (1977).