text:
    PEOPLE v PETTIT
    Docket No. 78-2270.
    Submitted November 9, 1978, at Lansing.
    Decided January 17, 1979.
    Leave to appeal applied for.
    Jack D. Pettit was charged with negligent homicide and driving while impaired. Pursuant to a plea agreement, the defendant pleaded guilty to the charge of driving while impaired and the charge of negligent homicide was dismissed. The defendant was sentenced in Eaton Circuit Court, Hudson E. Deming, J., to two years probation. As a condition of probation, the defendant was ordered to pay restitution to cover the funeral expenses for a child who died in the accident which gave rise to the negligent homicide charge and the expenses incurred in the repair of the automobile in which the child had been riding. The defendant appeals, challenging the propriety of the restitution order as a condition of probation. Held:

    The trial judge was acting within his discretion in imposing restitution as a condition of probation. There was support in the record for the trial judge’s conclusion that it was the impaired driving, to which the defendant pled guilty, which caused the losses for which he was ordered to make restitution.
    Affirmed.
    1. Criminal Law — Probation — Statutes.
    The granting of probation is a matter of grace (MCL 771.4; MSA 28.1134).
    2. Criminal Law — Probation — Sentencing Judges — Conditions of Probation — Appeal and Error — Statutes.
    Sentencing judges are given wide latitude in setting conditions of probation and the Court of Appeals will disturb a sentencing judge’s determination only if those conditions are unlawful (MCL 771.3; MSA 28.1133).
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 562-568.
    59 Am Jur 2d, Pardon and Parole §§ 3, 77.

       21 Am Jur 2d, Criminal Law §§ 565, 566.

       21 Am Jur 2d, Criminal Law § 565.

      3. Criminal Law — Sentencing — Probation — Restitution Orders — Purpose op Payment — Determination of Amount.
    A prerequisite to adequate appellate review of a restitution order which is a condition of a defendant’s probation is disclosure of the purpose of the payment and the manner in which the amount of restitution has been determined.
    4. Criminal Law — Sentences — Probation — Restitution Orders
    — Conditions op Probation — Course op Criminal Conduct. Restitution as a condition of probation may be imposed as to the whole loss caused by a course of criminal conduct upon conviction of a crime arising out of that conduct.
    5. Constitutional Law — Due Process — Probation — Conditions op Probation — Restitution Orders — Hearing — Amount op Damages.
    It is not a deprivation of due process of law to deny a defendant, in a criminal prosecution, a hearing on the question of the amount of damages to be imposed as a condition of probation.
    6. Criminal Law — Probation — Conditions op Probation — Restitution — Record Support — Cause of Losses — Criminal Conduct.
    The proper exercise of judicial discretion requires that, in cases where restitution is ordered as a condition of probation, there must be persuasive support in the record for the sentencing judge’s conclusion that the losses for which restitution is ordered were caused by the criminal conduct of the defendant.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Paul F. Berger, Prosecuting Attorney, and Janis L. Blough, Assistant Prosecuting Attorney, for the people.

      Abood & Abood, P.C., for defendant on appeal.
    Before: D. F. Walsh, P.J., and T. M. Burns and D. E. Holbrook, Jr., JJ.
   D. F. Walsh, P.J.

Defendant was charged with negligent homicide, MCL 750.324; MSA 28.556. A second count was added to the information: driving while impaired, MCL 257.625b; MSA 9.2325(2). Pursuant to negotiations between the prosecutor and defense counsel, defendant pleaded guilty to count II and the prosecutor moved to dismiss count I. The circuit court judge accepted defendant’s guilty plea and count I was dismissed. On April 20, 1978, defendant was placed on probation for two years. On appeal defendant challenges the propriety of one of the conditions of his probation: that he pay restitution in the amount of $1,295 to cover the funeral expenses for the child who died in the automobile accident which gave rise to the charge in count I ($795), and the expenses incurred in the repair of the automobile in which the child had been riding ($500).

The circuit judge was within his statutory sentencing authority in imposing restitution as a condition of probation. MCL 771.3; MSA 28.1133. The Michigan Legislature has expressly announced its intent that the granting of probation is a matter of grace. MCL 771.4; MSA 28.1134. Sentencing judges are given wide latitude, in setting the conditions of probation. MCL 771.3; MSA 28.1133. Only if those conditions are unlawful will this Court disturb the sentencing judge’s determination. People v Higgins, 22 Mich App 479; 177 NW2d 716 (1970). A prerequisite to adequate appellate review of restitution orders is disclosure of the purpose of the payments and the manner in which the amount of restitution has been determined. People v Heil, 79 Mich App 739; 262 NW2d 895 (1977).

Restitution may be imposed as to the "whole loss caused by a course of criminal conduct upon conviction of a crime arising out of that conduct”. People v Gallagher, 55 Mich App 613, 618; 223 NW2d 92 (1974), lv den, 393 Mich 766 (1974). In People v Nawrocki, 8 Mich App 225; 154 NW2d 45 (1967), for example, a defendant was convicted of uttering and publishing a specific forged check. Restitution included repayment of the amounts of other forged checks as well. Also see People v Seda-Ruiz, 87 Mich App 100; 273 NW2d 602 (1978), where the defendant pleaded guilty to passing three NSF checks and was ordered to make restitution in an amount covering several other checks. The Court noted that this condition of probation was "in keeping with the principle of justice of restitution requiring the perpetrator of the offense to pay back the entire amount obtained by his course of criminal conduct”. Id., at 102-103.

The issue in the instant case is whether the losses for which restitution was ordered were caused by the impaired driving for which the defendant stood convicted. Defendant argues that this can be established only by civil judgment or, at the least, by a hearing approximating a civil trial at which defendant would have the benefit of procedural safeguards available in a civil proceeding.

Similar argument was raised and rejected in People v Good, 287 Mich 110, 115-116; 282 NW 920 (1938):

"Appellant claims that this provision violates the due process clause of both Federal and State Constitutions, in that it does not provide for a hearing on the question of damages to be assessed, nor does it give a defendant an opportunity to interpose the defenses, such as the contributory negligence of a decedent, which are available to him in civil proceedings; also that the notice of a criminal prosecution is 'not appropriate to a proceeding in which civil damages may be assessed.’
"The arguments of appellant are based upon the erroneous assumption that damages are 'assessed’ by the court when restitution is made a condition of probation. Such is not the case. No judgment is rendered for, nor could a writ of execution issue to enforce the collection of, the sum specified. A defendant in such instance is merely given the alternative of abiding by the conditions imposed or else suffering the imposition and execution of a sentence which ordinarily follows a verdict of guilty. This defendant was not deprived of any of his rights without due process; rather he was given the additional privilege of avoiding the usual penalty of his crime by the payment of a sum of money and the observance of the other conditions attached to his probation. Consequently it was not a deprivation of due process of law to deny defendant a hearing on the question of the amount of 'damages’ to be imposed as a condition of probation and the statute, section 17373, is ample notice of the possibility that such a condition might be imposed.”

Due process does not require the same type of proof which would be required in a civil proceeding. Nevertheless, the proper exercise of judicial discretion would require, and we hold that, in cases where restitution is ordered as a condition of probation, there must be persuasive support in the record for the sentencing judge’s conclusion that the losses for which restitution is ordered were caused by the criminal conduct of the defendant.

We find such support in the instant record. Defendant was convicted of driving while impaired. The sentencing judge reviewed the presentence report prepared by the probation department. The presentence report contained the statement of the investigating officer that defendant was at fault in the fatal collision. In open court both defendant and his attorney expressed their agreement with the contents of the presentence report. From this the sentencing judge reasonably concluded that the child’s losses were caused by defendant’s criminal conduct (i.e., by his driving while impaired). After sentencing, defendant’s attorney moved for review of the conditions of probation. The sentencing judge deleted a requirement that defendant pay $208 for the headstone of the child’s grave, since that amount had not been set forth in the presentence report. Defendant did not contend that the funeral and car repair expenses were inaccurate or unreasonable, nor did he move to withdraw his guilty plea.

The record clearly indicates the purpose of the restitution payments. The condition of restitution was reasonable and just. It was not designed as a substitute for determination of defendant’s civil liability.

Defendant relies heavily on People v Becker, 349 Mich 476; 84 NW2d 833 (1957), and argues that, since count I was dismissed, he was erroneously ordered to pay restitution in connection with the death of the child. In Becker, four Justices concurred in the statement that restitution "can be imposed only as to loss caused by the very offense for which defendant was tried and convicted”. Id., at 486. The remaining four Justices concurred only in the result. As noted in People v Gallagher, supra, at 618, this statement was unnecessary in light of the Becker facts and result. The Becker defendant was convicted of unlawfully leaving the scene of a personal injury accident. He was ordered to make restitution to the victims of the accident. The defendant denied fault in connection with the accident. The record did not reasonably justify a conclusion that the losses suffered by the accident victims were caused by the defendant’s criminal conduct. There was no persuasive support for a conclusion that a causal connection existed between those losses and the defendant’s leaving the scene of the accident. Even if the defendant had admitted fault in the accident, it was not his criminal conduct (i.e., leaving the scene) which caused the damages. Conversely, in the instant case there was persuasive support in the record for the trial judge’s conclusion that it was the impaired driving to which defendant pled guilty which caused the losses for which he was ordered to make restitution.

Affirmed.

       Although Michigan’s probation statute mentions only "restitution” and not "reparation”, it has been implicitly held that the former term includes the latter. See People v Good, 287 Mich 110; 282 NW2d 920 (1938). The technical distinction between the two terms was discussed by the separately concurring Justice in Good. Id., at 118-119.

       Of course, restitution must not be used as a substitute for determination in the proper forum of a defendant’s civil liability:
      "Criminal and civil liability are not synonymous. A criminal conviction does not necessarily establish the existence of civil liability. Civil liability need not be established as a prerequisite to the requirement of restitution as a probation condition; such restitution for personal injury, therefore, generally should be more limited in scope than civil damages. In the instant case we believe that restitution should encompass only those losses which are easily ascertained and measured, and which are a direct result of the defendant’s criminal acts.” People v Heil, 79 Mich App 739, 748-749; 262 NW2d 895 (1977).


source: Caselaw Access Project

author: Per Curiam. R. M. Maher, J.

license: Public Domain

text:
    PEOPLE v MILLER PEOPLE v EWING PEOPLE v DAVIS
    Docket Nos. 77-824, 77-825, 77-939, 77-945.
    Submitted November 7,1978, at Detroit.
    Decided January 17, 1979.
    Dujuan Miller, Michael Davis and Kevin Ewing were each charged with one count of felony murder and three counts of armed robbery arising from an armed robbery of three persons during which one of the victims was killed. The three defendants were represented by separate counsel but tried jointly. Miller and Davis were found guilty as charged and Ewing was found guilty of second-degree murder, Recorder’s Court of Detroit, Joseph A. Gillis, J. All three defendants appeal and the appeals were consolidated. Among the issues raised on appeal are 1) did the trial court err in using the "struck jury” method of selecting a jury, 2) was the initial confession of defendant Miller given following an arrest which was made without probable cause, 3) was the admission of the confession of each of the codefendants prejudicial to the other codefendants, 4) were the defendants entitled to separate trials, 5) did the prosecution improperly use prior misdemeanor convictions and a juvenile record to impeach defense witnesses, 6) did error result from alleged prejudicial remarks made by the prosecutor in closing argument, 7) was there juror misconduct requiring reversal and 8) did error result from the trial court’s instruction to the jury on the effect of a defendant’s not testifying at trial. Held:

      References for Points in Headnotes

       47 Am Jur 2d, Jury §§ 139, 153.

       29 Am Jur 2d, Evidence §§ 530, 531, 555-557.
    Necessity of informing suspect of rights under privilege against self-incrimination, prior to police interrogation. 10 ALR3d 1054.
    Admissibility of pretrial confession in criminal case—Supreme Court cases. 4 L Ed 2d 1833; 12 L Ed 2d 1340.

       29 Am Jur 2d, Evidence §§ 418, 583.
    68 Am Jur 2d, Searches and Seizures §§ 2-6.

       29 Am Jur 2d, Evidence §§ 539, 540.
    Standing of defendant in Federal criminal prosecution to challenge accomplice’s testimony as "fruit of the poisonous tree.”

       75 Am Jur 2d Trial § 17.

       75 Am Jur 2d, Trial §§ 20-24.

       29 Am Jur 2d, Evidence § 539.

       81 Am Jur 2d, Witnesses §§ 569-571.

       81 Am Jur 2d, Witnesses § 575.

       5 Am Jur 2d, Appeal and Error § 896.

       75 Am Jur 2d, Trial § 994.

       75 Am Jur 2d, Trial §§ 588, 747.

       81 Am Jur 2d, Witnesses §§ 571, 572.

       30 Am Jur 2d, Evidence § 933.

       40 Am Jur 2d, Homicide §§ 72, 184.
    Application of felony-murder doctrine where the felony relied upon is an includible offense with the homicide. 40 ALR3d 1341.

      1. The use of the "struck jury” method of selecting a jury does not warrant reversal of the convictions. The safeguards set out in the applicable court rule were all met in this case. This decision is not to be viewed as an endorsement of the method used.
    2. Whether or not defendant Miller was actually arrested before he made his first statement to the police, there was probable cause to arrest him at the time. The confession was not taken in violation of his rights and the subsequent statements of defendants Davis and Ewing were not fruits of a poisonous tree.
    3. The admission of the separate confessions of each of the three codefendants at their joint trial was not prejudicial to the other defendants since each defendant inculpated himself in his own confession.
    4. There was no affirmative showing of prejudice to the substantial rights of any of the defendants by the refusal of the trial court to grant separate trials. There was no abuse of discretion in the trial court’s refusal to grant separate trials.
    5. Impeachment of a witness by use of prior convictions is not restricted to felony convictions, but may include convictions for misdemeanors punishable by more than 90 days in jail.
    6. Use of a witness’s juvenile record for impeachment purposes is not precluded where the witness is not a defendant.
    7. The remarks by the prosecutor which the defendants allege to have been improper were in response to remarks made by defense counsel and no error resulted.
    8. The discussion of the case between two of the jurors was not ground for reversal, since, if it occurred, it occurred after the close of evidence.
    9. Instructing the jury regarding the effect of the failure of a defendant to testify was not erroneous because defendants Miller and Ewing requested the instruction.
    Affirmed.
    R. M. Maher, J., dissented. He would hold:
    1. The use of misdemeanor convictions for impeachment purposes is prohibited.
    2. A police preliminary complaint report was not admissible as evidence under the business record exception to the hearsay rule. However, the error complained of by counsel for one of the defendants was invited by trial counsel for the same defendant in that he had earlier introduced such a report as a business record. He may not now complain that admission of such reports is improper.
    3. Defendants Miller and Davis were subjected to double punishment by being convicted of both felony murder and the underlying felony of armed robbery of the murder victim.
    4. There should be a remand for a hearing on the issue of juror misconduct with an opportunity given to the mother of defendant Ewing, who allegedly overheard the conversation between the two members of the jury, to testify. If she is unable to testify on the matter, the jurors themselves should be summoned and questioned.
    He would reverse the convictions of each of the defendants Miller and Davis on one of the counts of armed robbery and remand to the trial court for a hearing on the issue of juror misconduct.
    Opinion of the Court
    1. Jury — Criminal Law — Jury Selection — "Struck Jury” Method — Court Rules.
    A "struck jury” method of jury selection did not result in a miscarriage of justice where the method employed was in compliance with all but one of the requirements of the requisite court rule, and as to the requirement which was not met, the purpose behind it was fulfilled; however, the Supreme Court has provided for a different method of impanelling a jury, and the surest way of avoiding error, especially in the sensitive area of a defendant’s right to a jury trial, is to follow the accepted method (GCR 1963, 511).

      2. Constitutional Law — Criminal Law — Statements by Defendant — Miranda Warnings — Arrest — Probable Cause — Statutes.
    A statement made to the police by a defendant was not taken in violation of the defendant’s rights whether or not the defendant had actually been arrested where full Miranda warnings had been given and the police had sufficient probable cause to arrest the defendant at the time the statement was given and, consequently, subsequent statements given by two codefendants, in response to the statement of the defendant, were not the fruit of a poisonous tree (MCL 764.15[d]; MSA 28.874[d]).
    3. Constitutional Law — Confessions — Fourth Amendment — Vicarious Assertion of Right.
    Any alleged impropriety in procuring a defendant’s confession in violation of a Fourth Amendment right cannot be asserted vicariously (US Const, Am IV).
    4. Criminal Law — Joint Trial — Evidence — Confessions.
    It is accepted procedure in joint trials, involving codefendants, to allow a prosecutor to introduce a lawfully acquired confession of one of the defendants, provided any reference to any of the other defendants is deleted.
    5. Criminal Law — Trial — Joinder.
    Joinder of criminal defendants for trial is usually within the discretion of the trial court; the general rule is that a defendant does not have a right to a separate trial.
    6. Criminal Law — Joint Trials — Severance.
    Denial of a defendant’s motion for a separate trial is not an abuse of discretion unless there is an affirmative showing of prejudice to substantial rights of the accused.
    7. Criminal Law — Trial — Joinder — Severance.
    A defendant is entitled to a trial separate from a codefendant who, it appears, may testify to exculpate himself and incriminate the defendant seeking a separate trial.
    8. Criminal Law — Confessions — Codefendants — Antagonistic Positions.
    The admission into evidence of the confessions of each of three codefendants was not in error where each defendant’s statement inculpated his codefendants but also inculpated the defendant making the statement.

      9. Witnesses — Impeachment — Prior Convictions — Felonies — Misdemeanors.
    Impeachment of a witness by use of prior convictions is not restricted to convictions for felonies, but may include convictions of misdemeanors punishable by more than 90 days in jail.
    10. Witnesses — Juveniles — Juvenile Record — Impeachment — Statutes.
    A statute does not preclude the use of a witness’s juvenile record for impeachment purposes where the witness is not a defendant (MCL 712A.23; MSA 27.3178[598.23]).
    11. Criminal Law — Appeal and Error — Prosecutors — Remarks — Responding to Defense Counsel.
    The allowance of remarks of a prosecutor which were induced by and made in response to statements of defense counsel does not constitute reversible error.
    12. Jury — Criminal Law — Comments by Juror — Close of Evidence.
    Comments made among jurors after the close of evidence but before the jury has been instructed do not necessarily raise grounds for a reversal where a conviction has followed.
    13. Criminal Law — Instructions to Jury — Election Not to Testify — Multiple Defendants.
    A trial court should instruct a jury upon the effect of the election of a defendant not to testify where such an instruction is requested by any defendant in a criminal case involving more than one defendant.
    Dissent by R. M. Maher, J.
    14. Witnesses — Impeachment — Prior Convictions — Misdemeanors.

      Impeachment of a witness through the use of a prior misdemeanor conviction is improper.

    15. Evidence — Criminal Law — Police Complaint Report — Hearsay — Business Records.

      A defendant who at one stage of his trial introduced a police preliminary complaint report into evidence as a business record may not complain on appeal that the admission of such a report, at a later stage in the trial, under the business record exception to the hearsay rule was improper.

      16. Homicide — Felony Murder — Underlying Felony — Double Punishment — Necessary Element.

      A defendant’s conviction for armed robbery should be vacated where the defendant was convicted of armed robbery and ñrstdegree felony murder and the armed robbery was a necessary element of the felonymurder.

    17. Jury — Discussion of Case — Evidence — Instructions to Jury — Argument of Counsel.

      Jurors should not discuss a case among themselves until they have heard 1) all of the evidence on both sides, 2) instructions of the court as to how such evidence is to be considered by them and 3) arguments of counsel.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and William Wertheimer, Timothy Scallen, and Anne B. Wetherholt, Assistants Prosecuting Attorney, for the people.

      Lawrence R. Greene, for defendant Dujuan Miller.

      Thomas A. Law, for defendant Michael Davis.

      Gerald S. Surowiec, for defendant Kevin Ewing.
    Before: Allen, P.J., and R. M. Maher and J. E. Townsend, JJ.

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

   Per Curiam.

Defendants Miller, Davis and Ewing were each charged with one count of felony murder, MCL 750.316; MSA 28.548, and three counts of armed robbery, MCL 740.529; MSA 28.797. The three defendants were represented, by-separate counsel, but were tried jointly. A recorder’s court jury found defendants Miller and Davis guilty as charged, and found defendant Ewing* guilty of second-degree murder, MCL 750.317; MSA 28.549, and one count of armed robbery. All defendants received life sentences on each count on which they were convicted. All three defendants appeal and these appeals have been consolidated.

The charges stem from an armed robbery of the Pixie Restaurant in Detroit on August 11, 1976. Testimony and evidence at trial indicated that defendants Miller and Davis entered the restaurant and robbed at gunpoint William Beneson, Robert Tompkins, and Edward Cornwall. As Miller and Davis were leaving, Miller fired a shot which killed Beneson. Defendant Ewing provided Miller with the weapon and waited in a car outside the restaurant. The car was driven by David Lyles, a friend of the defendants, who was paid $3 by Miller to drive defendants to the restaurant and wait for them. After dropping them off, Lyles drove off with Ewing without waiting for Miller and Davis. Lyles was at one point arrested, but he was never charged with the crime.

Tompkins testified that Davis was one of the robbers, but was not sure if Miller was the other. Cornwall identified both Miller and Davis as the robbers. Pierr Harris, who knew both Miller and Davis, testified that she was near the Pixie Restaurant at the time of the crime, heard a shot, and saw Miller and Davis running from the restaurant. Lyles testified that after the robbery Miller had said that he killed Beneson. Confessions made by each defendant were admitted at trial, but none of the defendants testified. Miller called two witnesses in defense who contradicted the testimony of Harris. Other than that, the defense consisted of attacking prosecution witnesses.

On appeal defendants raise a plethora of issues, three of which merit special attention. The remaining may be disposed of summarily. When necessary, additional facts will be developed.

Struck Jury

Each defendant claims due process was violated and reversible error was committed because the trial judge selected the jury by what we shall call the "struck jury” method. Seventy-three members of the jury panel were identified and selected as prospective jurors. All defense counsel were given an opportunity to examine the juror sheets on the morning of the jury selection. None took advantage of the opportunity. Nor did any of the defense counsel submit questions for voir dire. The trial court itself questioned the jurors collectively and, at times, individually. After the court’s voir dire, defense attorneys and the prosecutor were permitted to exercise their challenges on a rotating basis. The panel was reduced to 11 persons at which time 38 additional prospective jurors were seated and questioned. The procedure was repeated until 14 jurors remained. No juror was excused for cause. Miller and Davis each exhausted their 20 peremptory challenges and Ewing used 19 of his.

Defendants contend that this procedure violated GCR 1963, 511.6 and infringed upon the exercise of their peremptory challenges. The only specific claim of prejudice made by any of the defendants is that they could not keep track of the responses of the individual panel members. On the facts of this case we do not find reversible error.

We cannot accept the contention that defense counsel could not keep track of the responses of the prospective jurors. The struck jury method has been used and continues to be used in other jurisdictions and the attorneys there handle the situation. Nor do we find .that the technical violation of GCR 1963, 511.6 mandates reversal. GCR 1963, 511, which provides for the impaneling of jurors, was designed with the usual method of starting with a panel of 12 prospective jurors in mind. Therefore § 6 of the rule becomes important in order to insure that the effect of subsequent challenges will not be diluted by exercising them on a diminishing panel, and then having the members replaced with persons even less desirable. Under the instant method this problem never arises because counsel know from the start and can decide even before their first challenge all of the individuals they wish to challenge. Hence, the purpose behind GCR 1963, 511.6 was achieved here. With the exception of § 6, the struck jury method used here was in compliance with all of the other requirements of GCR 1963, 511.

The evidence against defendants was overwhelming. In this case we do not find a miscarriage of justice and reversal is unwarranted. MCL 769.26; MSA 28.1096. In addition, defense counsel were informed by the trial court a month before trial that the struck jury method would be used and no objection was made until the first day of selecting the jury. Although the use of the struck jury method did not warrant reversal in this case, our opinion should not be read as an endorsement of the method. Our Supreme Court has provided for a method of impaneling a jury, and the surest way of avoiding error, particularly in the sensitive area of a defendant’s right to a jury trial, is to follow the accepted method.

Confessions

Defendant Miller gave a false confession which exculpated him but inculpated both defendant Davis and defendant Ewing. Davis and Ewing were quickly arrested and they each confessed, but they incriminated defendant Miller. In the face of the contradiction between his statement and those of Davis and Ewing, Miller gave another confession which incriminated himself as well as Davis and Ewing. Except for Miller’s first confession, all of the confessions described the same crime and events. There is no question that all defendants received full Miranda rights before any statements were given, and Miller received his rights twice, once before each of his confessions. All four of the confessions were introduced at trial.

On appeal it is contended that Miller’s initial confession was given following an arrest made without probable cause. The police investigation of the crime continued over a month before defendant Miller was arrested. During this time many people were questioned about the crime and the name "Pops” came up several times in relation to the crime. Descriptions (but no names) of the robbers were obtained from Pierr Harris. Eventually the police learned that defendant Miller was known as "Pops” and they went to his home to question him. When the police met Miller they realized he matched very closely the description given by Harris. At that point Miller went with them to the police station where he made his first statement.

Whether or not Miller was actually arrested before he made his first statement, the police would have had sufficient probable cause to arrest him. The information available to the police while at Miller’s home gave them "reasonable cause to believe” that defendant committed the crime. MCL 764.15(d); MSA 28.874(d). People v Green, 70 Mich App 311; 245 NW2d 730 (1976), lv den, 399 Mich 855 (1977). Consequently, Miller’s first statement was not taken in violation of his rights, and the subsequent statements of Davis and Ewing were not fruits of a poisonous tree. Miller’s second statement was also validly taken and admissible. In passing we also note that defendants Davis and Ewing could not have relied on any impropriety in procuring defendant Miller’s confession, because the impropriety involved infringement of a Fourth Amendment right and cannot be asserted vicariously. Brown v United States, 411 US 223; 93 S Ct 1565; 36 L Ed 2d 208 (1973), United States ex rel Wright v Cuyler, 563 F2d 627 (CA 3, 1977).

Each defendant objected to the admission of his two codefendants’ confessions because the confessions were, allegedly, prejudicial and violated their Sixth Amendment right to confront and cross-examine witnesses contrary to the rule of Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968). In the instant case, however, the confessions of each defendant had the names of any other defendant excised and replaced with John Doe #1, #2, or #3 as needed. Additionally, instructions were given that the confessions were to be used only in relation to the particular confessing defendant. In a multiple-defendant trial, confessions may be admitted where "any reference to one of the other codefendants is deleted” without violating Bruton. People v Macklin, 46 Mich App 297, 302; 208 NW2d 62 (1973).

The deletion of codefendants’ names would usually be sufficient to avoid Sixth Amendment problems, but in this case all of the confessions gave a similar story, and defendants claim the net effect of reading all three confessions was to indicate that the deleted names were the names of the codefendants. We do not reach defendants’ contention because each defendant admitted in his own confession the prejudicial information contained in the confessions of his codefendants. Where the various confessions are interlocking or substantially similar, the "powerfully incriminating extrajudicial statements of a codefendant” (391 US at 135) are not present as in Bruton, and hence it is harmless error at most to admit such statements. Mack v Maggio, 538 F2d 1129 (CA 5, 1976), United States ex rel Duff v Zelker, 452 F2d 1009 (CA 2, 1971), cert den, 406 US 932; 92 S Ct 1807; 32 L Ed 2d 134 (1972), Walden v Neil, 318 F Supp 968 (ED Tenn, 1970), aff'd, 451 F2d 1350 (CA 6, 1971).

Another issue relating to the confessions is raised by defendants Davis and Ewing. They each claim error in the admission of defendant Miller’s initial statement which incriminated them and exculpated Miller. Neither defendant cites any authority for his position. False statements may be admissible, People v Dandron, 70 Mich App 439; 245 NW2d 782 (1976), so the question becomes whether the admission of the statement violated Bruton. For the same reasons that the admission of Miller’s second statement did not prejudice Davis and Ewing, his first statement did not prejudice them.

Separate Trials

Where two or more defendants are jointly charged with an offense, they may be tried jointly or separately in the discretion of the court. MCL 768.5; MSA 28.1028. People v Hurst, 396 Mich 1; 238 NW2d 6 (1976). The trial court’s decision will be upheld absent an abuse of discretion, People v Billingslea, 70 Mich App 371; 246 NW2d 4 (1976), which requires an affirmative showing of prejudice to substantial rights of the accused. People v Carroll, 396 Mich 408; 240 NW2d 722 (1976). A defendant is entitled to a separate trial where defenses are antagonistic; that is, where it appears a codefendant may testify to exculpate himself and incriminate the defendant. People v Hurst, supra.

As mentioned earlier, each defendant’s confession or statement inculpated the codefendants. But each statement also inculpated the defendant making the statement. Therefore, the confessions did not incriminate codefendants and exculpate the confessing defendant. The result was that the statements did not represent antagonistic positions. At trial, Ewing’s defense amounted to one of noninvolvement, but his own statement prejudiced him as much as that of either defendant Miller or Davis. Defendants Miller and Davis challenged the accuracy of the observations of the prosecution witnesses and challenged the voluntariness of their confessions. None of these positions were antagonistic to one another. The pitting of defendants against each other, the animus of Hurst, was not present here.

Remaining Issues

Defendants Davis and Ewing raise several other issues, none of which warrant reversal.

Contrary to the argument of defendants, neither MCL 712A.23; MSA 27.3178(598.23), nor People v Renno, 392 Mich 45; 219 NW2d 422 (1974), precluded the prosecutor’s questions relative to prior convictions of a defense witness. Impeachment is not restricted to convictions for felonies, but may include misdemeanors punishable by more than 90 days in jail. People v McMillan, 68 Mich App 113; 242 NW2d 518 (1976), lv den, 399 Mich 825 (1977). MCL 712A.23; MSA 27.3178(598.23), does not preclude use of a juvenile record to impeach a witness who is not the defendant. People v Davies, 34 Mich App 19; 190 NW2d 694 (1971).

Defendants contend that remarks in closing by the prosecutor resulted in prejudicial error. The very brief remarks complained of might have raised the jurors’ sympathies, but the remarks were in response to defense remarks, and no error resulted. People v Newby, 82 Mich App 489; 266 NW2d 492 (1978), People v Pomranky, 62 Mich App 304; 233 NW2d 263 (1975).

Since, even if true, two jurors’ comments overheard by Ewing’s mother were made after the close of evidence, there is no ground for reversal. People v Provost, 77 Mich App 667; 259 NW2d 183 (1977).

No error occurred when defendant Davis objected to the instruction on the effect of a defendant not testifying at trial. The instruction was requested by defendants Miller and Ewing. People v Hampton, 394 Mich 437; 231 NW2d 654 (1975). Although not precisely on point, the Supreme Court’s decision in Lakeside v Oregon, 435 US 333; 98 S Ct 1091; 55 L Ed 2d 319 (1978), further supports our rejection of defendant’s contention.

Defendant Ewing, individually, raises four additional issues. There was ample record evidence that Ewing had the requisite intent. The police complaint report met the tests of and was admissible under the business records exception to the hearsay rule. MCL 600.2146; MSA 27A.2146. The factual issue of whether Ewing furnished the gun was clearly left to the jury. No prejudice resulted from the court’s emphasis on the charge of aiding and abetting. Ewing was the only defendant charged as an aider and abettor and the instructions given followed CJI 8:1:02 through 8:1:05 practically verbatim.

Affirmed.

R. M. Maher, J.

(dissenting). I respectfully dissent. I agree that defendants suffered no prejudice from the method used to select the jury. I likewise agree that no prejudicial error resulted from the denial of separate trials and from the admission of the defendants’ statements at trial.

Although I am of the opinion that impeachment by high misdemeanors should be permitted, I do not believe that the Supreme Court opinion in People v Renno, 392 Mich 45; 219 NW2d 422 (1974), can be read as authorizing such a rule. Until the Supreme Court holds otherwise, I believe that Renno must be construed to prohibit impeachment by all misdemeanors, People v Bernard Smith, 81 Mich App 561; 266 NW2d 40 (1978), People v Harris, 86 Mich App 301; 272 NW2d 635 (1978). In the case at bar, moreover, the specific offense of which the witness had been convicted was never revealed. I fail to see how this Court can hold the impeachment proper because the offense was a high misdemeanor without knowing the nature of the offense. In view of the overwhelming evidence against defendants, however, I find the error harmless.

I also disagree with the majority’s statement that a police preliminary complaint report is admissible as a business record. I share the skepticism expressed by Justice Coleman in Moncrief v Detroit, 398 Mich 181, 189; 247 NW2d 783 (1976):

"The police report is a writing. It could be admitted into evidence as an exhibit if the proponent can show that it meets the requirements of the business records exception. However, because of the "nature” of police business and the circumstances under which such reports are usually made, the possibility of police reports so qualifying is unlikely.

See also Simpson v Burton, 328 Mich 557; 44 NW2d 178 (1950). I do not agree that the preliminary complaint report was properly qualified in this case as a business record under the statute. However, the error was invited by counsel for the same defendant who raises the issue, in that he had earlier in the trial introduced a PCR as a business record. He may not now complain that admission of such reports is improper. See People v Williams, 84 Mich App 226; 269 NW2d 535 (1978).

In addition, I am of the opinion that defendants Miller and Davis were subjected to double punishment by being convicted of both felony murder and the underlying felony of armed robbery of the murder victim. I would sua sponte reverse their convictions for the robbery of the deceased, People v Anderson, 62 Mich App 475; 233 NW2d 620 (1975), People v Longuemire, 77 Mich App 17; 257 NW2d 273 (1977), People v Robert G Thompson, 81 Mich App 348; 265 NW2d 632 (1978), lv gtd 402 Mich 938 (1978), People v Wilder, 82 Mich App 358; 266 NW2d 847 (1978). See also Harris v Oklahoma, 433 US 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977).

Finally, I would remand for a hearing on the issue of juror misconduct. According to statements made by counsel for defendant Ewing and by Ewing’s father, two jurors had been overheard by Ewing’s mother discussing the case. At the time the alleged discussion took place, all the evidence had been presented and closing arguments had been completed. However, the jury had not yet received the court’s instructions on the law. Defendant Ewing’s counsel apparently was not immediately informed of the incident. After the jury had been instructed on the law, but before they began their deliberations, counsel for defendant Ewing informed the court that he had just learned that two jurors had been overheard by his client’s mother discussing the case in the hall during the lunch break. Mrs. Ewing thereupon collapsed and was taken to the hospital, after informing her husband of the overheard conversation. Upon being informed of these allegations, the court ordered Mr. Ewing sworn and an inquiry held into the possible misconduct. Mr. Ewing testified that he did not hear the alleged conversation, and was prevented from testifying regarding his wife’s statements about what she heard by the prosecutor’s hearsay objection. Counsel then asked the court to adjourn until the following morning, in the hope that Mrs. Ewing would be sufficiently recovered to testify to what she overheard. The court refused, and ordered the jury to begin deliberations.

The Supreme Court in People v Hunter, 370 Mich 262; 121 NW2d 442 (1963), held that it was reversible error for the trial court to instruct the jury that they could discuss the testimony during the trial, so long as they did not arrive at a verdict. The Court quoted at length from Winebrenner v United States, 147 F2d 322, 327-328 (CA 8, 1945), in which the United States Court of Appeals discussed the reasons jurors are not to discuss a case before it is submitted to them upon proper instructions:

"[J]urors are unschooled and inexperienced as to their duties in a criminal case, and they are not instructed as to those duties until all the evidence has been received, except as the court may in his admonition give them advice on their functions and how they are to be performed, and particularly as to how they should demean themselves; hence, the importance of this admonition. Without admonition their course is uncharted. Thus, it is not until the final submission of the case that the jurors are told that a defendant is under the law presumed to be innocent and not guilty and that that presumption attends him throughout the trial, so that it is incumbent upon the Government to prove the guilt of the defendant beyond a reasonable doubt. These instructions are deemed of vital importance as fixing the standards to be followed by the jury in determining the guilt or innocence of a defendant. If, however, the jurors may discuss the case among themselves, either in groups of less than the entire jury, or with the entire jury, they are giving premature consideration to the evidence. By due process of law is meant 'a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.’ The jury should not discuss the case among themselves because, first, they have not heard all of the evidence; second, they have not heard the instructions of the court as to how this evidence is to be considered by them, and neither have they heard the arguments of counsel.”

In People v Blondia, 69 Mich App 554; 245 NW2d 130 (1976), this Court reversed for an instruction similar to that in Hunter, supra, on the assumption that jurors who had been invited to discuss the testimony during trial in fact did so. Accord, People v Monroe, 85 Mich App 110; 270 NW2d 655 (1978). In the case at bar the prejudice is even more obvious, for the jurors allegedly did discuss the case during trial, despite repeated instructions by the trial court not to do so.

I am of the opinion that the trial court should have continued the matter until the following day in order to facilitate a full investigation into the allegations of juror misconduct. Had Mrs. Ewing continued unavailable, the jurors themselves could have been questioned about the incident, People v Bergin, 16 Mich App 443; 168 NW2d 459 (1969), People v Markham, 19 Mich App 616; 173 NW2d 307 (1969). I would remand to the trial court for the purpose of taking Mrs. Ewing’s testimony on the matter. If she is unavailable, the jurors should be summoned and questioned. If after a full investigation the trial court finds no misconduct, defendants’ convictions may be considered affirmed by this Court. If the trial court finds prejudicial misconduct, defendants are entitled to a new trial.

       The method described above is not the only jury selection method termed the "struck jury” method. A perhaps more traditional procedure entailed actually striking the names of jurors from a jury list until only 24 remained and then proceeding normally as to the remaining 24. This method was authorized in Michigan by statute until 1963. MCL 618.45; MSA 27.1025. Repealed by MCL 600.9901; MSA 27A.9901. 1961 PA 236.
      A method similar to that used here was approved by the Supreme Court in Pointer v United States, 151 US 396; 14 S Ct 410; 38 L Ed 208 (1894). Similar methods continue to be used in Federal courts. Swain v Alabama, 380 US 202; 85 S Ct 824; 13 L Ed 2d 759 (1965), United States v Mathis, 550 F2d 180 (CA 4, 1976). Some states also use the procedure. 50 CJS, Juries, § 5. Generally, there appears to be statutory authorization where the method is used.

       One of the arguments made by defendants is that defendant Miller’s arrest was the result of information received from unspecified informants, i.e., the people the police talked with during their investigation. These individuals were not "informants”. They were people who admittedly heard rumors and had no unusual or special relationship with any of the defendants. Cf. People v Emmert, 76 Mich App 26; 255 NW2d 757 (1977), and discussion in People v Tooks, 403 Mich 568; 271 NW2d 503 (1978).

       Defendant Miller in his second confession stated that his gun discharged accidentally. Defendant Davis confessed to participating in the crime, but said he was running out the door when Miller’s gun discharged. Defendant Ewing admitted giving the gun to Miller and being in the car that took Miller and Davis to the restaurant.

      "2 See Palmer v Hoffman, 318 US 109; 63 S Ct 477; 87 L Ed 645 (1943); McCormick, Evidence (2d ed), § 308.”


author: Per Curiam.

text:
    CONSOLIDATED ALUMINUM CORPORATION, INC. v RICHMOND TOWNSHIP
    Docket No. 77-1367.
    Submitted June 22, 1978, at Detroit.
    Decided January 17, 1979.
    Consolidated Aluminum Corporation, Inc., owns the main and Germay aluminum plants located in Richmond Township, Osceola County, Michigan. The township assessor appraised the main plant at a true cash value of $1,420,000 with an assessed value of $710,000 for the years 1975 and 1976. The Germay plant was appraised at a true cash value of $180,000 with an assessed value of $90,000 for 1975. In 1976, the Germay plant appraisal was reduced to a true cash value of $100,000 with an assessed value of $50,000. Consolidated Aluminum appealed these assessments to the Michigan Tax Tribunal. The Tribunal held a hearing and after this hearing issued an order affirming the assessments made by the township. Consolidated Aluminum appeals this order contending that the Tribunal committed an error of law in affirming the township assessments. Held:

    The Tax Tribunal may not automatically affirm township assessments without making its own determination of true cash value. It cannot reject all of a taxpayer’s evidence concerning true cash value. Where the taxpayer’s evidence is rejected and the Tribunal fails to make its own determination, the decision of the Tribunal must be reversed and the matter remanded to the Tax Tribunal for a determination of the true cash value of the taxpayer’s properties.
    Reversed and remanded.
    1. Taxation — Tax Tribunal — Decisions — Review — Appeal and Error — Constitutional Law — Statutes.
    The power of an appellate court to review decisions of the State Tax Tribunal is very limited and no appeal may be taken from any decision of the Tax Tribunal in the absence of fraud, error of law, or the adoption of wrong principles; therefore, a reviewing court is bound by the factual determination of the Tax Tribunal and may properly consider only questions of law (Const 1963, art 6, § 28, MCL 205.753[1]; MSA 7.650[53][1]).

      References for Points in Headnotes

       71 Am Jur 2d, State and Local Taxation § 603.

       72 Am Jur 2d, State and Local Taxation §§ 713, 780, 796.

       71 Am Jur 2d, State and Local Taxation § 604.
    72 Am Jur 2d, State and Local Taxation § 787.

       71 Am Jur 2d, State and Local Taxation §§ 125, 127.

       72 Am Jur 2d, State and Local Taxation §§ 753, 754, 799, 800.

      2. Taxation — Tax Tribunal — Property — True Cash Value — Burden of Proof —- Statutes.
    A taxpayer has the burden of proof in establishing the true cash value of his property before the State Tax Tribunal (MCL 205.737[3j; MSA 7.650[37][3]).
    3. Taxation — Tax Tribunal — Original Actions — Statutes.
    A proceeding before the State Tax Tribunal is original and independent and is de novo (MCL 205.735[1]; MSA 7.650[35][1]).
    4. Taxation — Tax Tribunal — Assessments — True Cash Value — Statutes.
    The State Tax Tribunal, in arriving at its determination of a lawful property assessment, shall determine the amount by multiplying its finding of true cash value by a percentage equal to the ratio of the average level of assessment in relation to true cash values in the assessment district (MCL 205.737[1]; MSA 7.650[37][1]).
    5. Taxation — Tax Tribunal — Assessments — True Cash Value — Township Appraisals — Tribunal Findings.
    The State Tax Tribunal is required to make its own finding of true cash value in arriving at its determination of a lawful property assessment and where no evidence was presented from which the Tax Tribunal could have determined the true cash value of a taxpayer’s properties it may not automatically affirm a township assessment of the value of such properties.

      Butzel, Long, Gust, Klein & Van Zile (by Lawrence R. Van Til, John H. Dudley, Jr., and D. Stewart Green), for plaintiff.

      Talhelm & Smith, for defendant.
    Before: D. C. Riley, P.J., and M. F. Cavanagh and B. M. Hensick, JJ.

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

   Per Curiam.

Petitioner appeals an order of the Michigan Tax Tribunal affirming assessments made by respondent upon two parcels of industrial property owned by petitioner.

The properties involved here each contain an aluminum manufacturing plant. The larger plant is referred to as the "main plant” and the smaller plant is referred to as the "Germay plant”. Petitioner acquired both of these plants, as well as 8 other production facilities located in other states, for a lump sum price of $122,300,000.

The tax years involved here are 1975 and 1976. For both years, respondent appraised the main plant at a true cash value of $1,420,000 and assessed value of $710,000. The Germay plant was appraised at a true cash value of $180,000 with an assessed value of $90,000 for 1975. For 1976, the Germay plant appraisal was reduced to a true cash value of $100,000 with an assessed value of $50,000.

At the outset, we note that this Court’s power to review decisions of the Tax Tribunal is very limited. In declaring that the Tax Tribunal is the final agency for the administration of the property tax law as specified in Const 1963, art 6, § 28, MCL 205.753(1); MSA 7.650(53X1), the Legislature removed the Tribunal from court review of its decisions except under the limited circumstances set forth in that constitutional provision:

"In the absence of fraud, error of law or the adoption of wrong principles, no appeal may be taken to any court from any final agency provided for the administration of property tax laws from any decision relating to valuation or allocation.”

Thus, on appeal from a ruling of the Tax Tribunal, the reviewing court is bound by the factual determinations of the Tribunal and may properly consider only questions of law. Ironwood v Gogebic County Bd of Comm’rs, 84 Mich App 464, 469; 269 NW2d 642 (1978). See also Ann Arbor v University Cellar, 65 Mich App 512, 516; 237 NW2d 535 (1975), rev’d on other grounds, 401 Mich 279; 258 NW2d 1 (1977), Mohawk Data Sciences Corp v Detroit, 63 Mich App 102, 105; 234 NW2d 420 (1975).

Petitioner contends that the Tax Tribunal committed an error of .law in affirming the respondent’s assessments on its properties. We agree with the Tax Tribunal that the burden of proof is on the taxpayer in establishing the true cash value of his property. MCL 205.737(3); MSA 7.650(37)(3). However, we disagree with the Tribunal’s proposition that, "In the absence of proof justifying a different value, the assessment as placed upon the rolls by the assessing authority must be presumed valid”.

A proceeding before the Tribunal is original and independent and is de novo. MCL 205.735(1); MSA 7.650(35)(1). MCL 205.737(1); MSA 7.650(37X1), provides:

"In arriving at its determination of a lawful property assessment, the tribunal shall determine the amount by multiplying its ñnding of true cash value by a percentage equal to the ratio of the average level of assessment in relation to true cash values in the assessment district.” (Emphasis added.)

In Consumers Power Co v Big Prairie Twp, 81 Mich App 120, 129; 265 NW2d 182 (1978), this Court recently said:

"It was the duty of the Tax Tribunal, as the Legislature’s designated agent for that purpose, to determine the true cash value of Hardy Dam and appurtenant property, following which it was bound to apply ministerially the requisite equalization factor. Const 1963, art 9, § 3 * * *.”

Thus, it appears from the above citations of authority, that the Tribunal is required to make its own finding of true cash value. In the instant case, the Tribunal rejected all of petitioner’s evidence concerning true cash value. The following testimony was introduced at the hearing regarding respondent’s assessments of the properties in question.

The only witness for respondent was Dorman Elder, Osceola County Equalization Director, who testified in place of the county assessor who was unable to testify due to illness. Elder was not allowed to state any independent valuation conclusions because of respondent’s failure to submit written appraisals before the hearing. His testimony was limited to explaining the basis upon which the original assessments had been made. A review of Elder’s testimony reveals no basis from which the Tax Tribunal could have arrived at a finding of true cash value.

The parties stipulated that the "main tool” used by respondent’s assessor in appraising the properties was the consideration shown on the 1969 deeds of transfer from Miller Industries to Olin Corporation. These deeds listed the consideration for the main and Germay plants as $1,418,000 and $200,000 respectively. Olin’s director of Federal taxes testified that these figures had nothing to do with true cash value, and that they were "a fiction of federal tax law”.

There is no evidence on the record to indicate that respondent complied with MCL 211.27; MSA 7.27, which requires an assessor in determining the value of property to consider:

"* * * the advantages and disadvantages of location, quality of soil, zoning, existing use, present economic income of structures, including farm structures and present economic income of land when the land is being farmed or otherwise put to income producing use, quantity and value of standing timber, water power and privileges, mines, minerals, quarries, or other valuable deposits known to be available therein and their value.”

This is even more apparent in light of respondent’s reduction of the Germay plant assessment from $180,000 to $100,000 upon the recommendation of Elder, who testified that he recommended the reduction. after going through the Germay plant and observing how few workers were employed there.

We conclude that there was no evidence presented at the hearing from which the Tax Tribunal could have determined the true cash value for the properties in question. The Tribunal may not automatically affirm respondent’s assessment without making its own determination of true cash value. Accordingly, we reverse the Tax Tribunal’s affirmance of the current assessments and remand to the Tribunal for a determination of the true cash value of petitioner’s properties.

We decline to address petitioner’s issue regarding the Tribunal’s rejection of its evidence going to true cash value for two reasons: First, because it would require us to consider factual determinations of the Tax Tribunal which we are not allowed to do, supra, and secondly, because of our disposition of this matter.

Reversed and remanded.

       Miller Industries and Olin Corporation, respectively, were the previous owners of the properties in question.


text:
    McCULLOUGH v HUTZEL HOSPITAL
    Docket No. 77-2735.
    Submitted December 11, 1978, at Detroit.
    Decided January 17, 1979.
    Plaintiffs, Ophelia McCullough and her husband Sedrick McCullough, Jr., brought a medical malpractice action against Hutzel Hospital and doctors Charles R. Boyce and George E. LaCroix for damages incurred as a result of defendants’ alleged negligence in failing to properly perform a tubal ligation on Ophelia. The defendant doctors are specialists in obstetrics and gynecology who undertook to supervise the care rendered to Ms. McCullough at Hutzel Hospital. Hutzel being a teaching hospital, the actual surgery was performed by a resident taking advanced training. The sterilization surgery failed. Ophelia became pregnant and was subsequently forced to accede to a therapeutic abortion, ligation of the remaining fallopian tube and finally a hysterectomy. A jury in Wayne Circuit Court, Horace W. Gilmore, J., returned a verdict in favor of plaintiffs for $100,000. Plaintiffs claim against Hutzel Hospital was settled for $40,000 prior to trial. Judgment in the amount of $60,000 was entered against the defendant doctors and they appeal. Defendants claim that because they did not actually perform the surgery, but were merely responsible for supervising the resident who did, that they were not practicing their specialty and are therefore not to be held to the national standard of care applicable to specialists. Secondly, they claim error on the admission of testimony of plaintiffs’ expert witness, Dr. Kalman Gold, on the applicable standard of care contending that because Dr. Gold admitted he was not familiar with procedures at Hutzel Hospital, he was not qualified to testify regarding the applicable standard of care. Held:

      References for Points in Headnotes

       61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 110.

       61 Am Jur 2d, Physicians, Surgeons, and Other Healers §§ 116, 119.

       61 Am Jur 2d, Physicians, Surgeons, and Other Healers §§ 205-207.
    Malpractice testimony: Competency of physician or surgeon from on locality to testify, in malpractice case, as to standard of care required of defendant practicing in another locality. 37 ALR3d 420.
    Medical malpractice: Necessity and sufficiency of showing of medical witness’ familiarity with particular medical or surgical technique involved in suit. 46 ALR3d 275.

      1. Specialists who undertake to supervise the care given to a surgical patient at a teaching hospital have a duty to see that the surgery performed by a resident taking advanced training at the hospital is done properly because, as specialists, they have the necessary qualifications and training to judge the competency of the resident’s performances. Failure to take reasonable care in ascertaining that the surgery was completely performed renders them liable for resulting damages.
    2. Dr. Gold was qualified to testify as an expert witness and the admission of his testimony was not error. The rule that an expert witness must be familiar with a hospital or hospitals in the same geographical area (locality rule) does not apply to a specialist who teaches his specialty to other physicians in a large well-equipped hospital in a metropolitan area, is familiar with procedures in other teaching hospitals and is familiar with the standard of care ordinarily utilized by specialists in supervising other physicians in training.
    Affirmed.
    1. Negligence — Physicians and Surgeons — Specialists — Standard of Care — Damages.
    Specialists in obstetrics and gynecology who undertake to supervise the care rendered to a gynecological surgery patient at a teaching hospital may be liable for malpractice damages incurred as a result of their alleged negligence in the performance of a tubal ligation operation, even though the surgical procedure was actually performed by a resident taking advanced training at the hospital, because it was their duty to see that the surgery was performed in a proper manner, it is their skill and training as specialists which fits them for that task and their advanced learning which enables them to judge the competency of the resident’s performance; therefore, failure to take reasonable care in ascertaining that the surgery was completely performed renders them liable for the resulting damages.
    2. Negligence — Malpractice — Physicians and Surgeons — General Practitioners — Specialists — Standard of Care.
    A general practitioner is required to use that degree of diligence and skill which is ordinarily possessed by the average of the members of the medical profession in similar localities, giving consideration to the state of the art at the time; specialists, on the other hand, are held to the standard of a reasonable specialist practicing medicine in the light of present day scientific knowledge without regard to geographical circumstances.
    3. Witnesses — Experts — Negligence — Malpractice — Physicians and Surgeons — Specialists — Teaching Hospitals — Standard of Care — Supervision of Other Physicians.
    The rule that an expert medical witness must be familiar with the procedures in a particular hospital or other hospitals in the same geographical area does not apply to a witness who is a specialist in obstetrics and gynecology and who testifies as an expert witness in a medical malpractice action against defendants, who are also specialists in obstetrics and gynecology and who allegedly failed to properly supervise a resident at a teaching hospital who performed the surgery while taking advanced training at the hospital, where the expert witness (a) has been engaged in teaching his speciality to other physicians in a large well-equipped hospital in a major metropolitan area, (b) is familiar with procedures in other teaching hospitals and (c) is familiar with the standard of care ordinarily utilized by gynecologists in supervising other physicians in training.

      Barbara, Ruby, Domol, Bowerman, Miller & Aaron, for plaintiffs.

      Kerr, Wattles & Russell, for defendants.
    Before: Danhof, C.J., and R. M. Maher and D. C. Riley, JJ.
   Per Curiam.

Plaintiffs Ophelia McCullough and Sedrick McCullough, Jr., brought this medical malpractice action to recover for damages incurred as a result of defendants’ alleged negligence in failing to perform properly a tubal ligation on plaintiff Ophelia McCullough. A few months after she was, according to hospital records, rendered incapable of conception, Ms. McCullough discovered that she was pregnant. The preexisting health problem which had led to her decision to undergo sterilization forced her to accede to a therapeutic abortion and ligation of the remaining fallopian tube. Subsequently, a hysterectomy was also performed.

Following trial, the jury returned a verdict in favor of plaintiffs in the amount of $100,000. Defendant hospital having settled plaintiffs’ claim against it prior to trial for the sum of $40,000, judgment in the amount of $60,000 was entered against defendant doctors. From this judgment, they appeal as of right.

Defendants’ sole allegation of error concerns the admission of testimony of plaintiffs’ expert witness, Dr. Kalman Gold, on the applicable standard of care. Dr. Gold is a board-certified specialist in obstetrics and gynecology, licensed in Ohio and Michigan. He practices in Toledo, where he is on the staffs of several hospitals and teaches a clinical course at a medical school. Defendants are specialists in obstetrics and gynecology who undertook to supervise the care rendered to Ms. McCullough at Hutzel Hospital. Hutzel being a teaching hospital, the actual surgery was performed by a resident taking advanced training at the hospital.

Defendants claim that because they did not actually perform the surgery, but were merely responsible for supervising the resident who did, they were not practicing their speciality, and are therefore not to be held to the national standard of care applicable to specialists, see Siirila v Barrios, 398 Mich 576; 248 NW2d 171 (1976), Naccarato v Grob, 384 Mich 248; 180 NW2d 788 (1970). Because Dr. Gold admitted that he was not familiar with procedures at Hutzel, defendants argue, he is not qualified to testify regarding the applicable standard of care. Defendants, in effect, argue for a locality rule for specialists teaching clinical medicine in hospitals. We reject defendants’ arguments for two reasons: First, we find that defendants were engaged in the practice of their specialty in caring for Ms. McCullough. Second, the locality rule does not apply to specialists engaged in teaching their specialty.

When plaintiff entered Hutzel Hospital for gynecological surgery, defendants assumed responsibility for her care. Even though the surgical procedure was actually performed by a resident, defendants were under a duty to see that it was performed properly. It is their skill and training as specialists which fits them for that task, and their advanced learning which enables them to judge the competency of the resident’s performance. Their failure to take reasonable care in ascertaining that the surgery was competently performed renders them liable for the resulting damages. We reject defendants’ argument that supervision of a patient’s care does not constitute practice of medicine.

It has long been the rule that a general practitioner is required "to use that degree of diligence and skill which is ordinarily possessed by the average of the members of the profession in similar localities, giving due consideration to the state of the art at the time”, Miller v Toles, 183 Mich 252, 257; 150 NW 118 (1914). See also Lince v Monson, 363 Mich 135; 108 NW2d 845 (1961). Specialists, on the other hand, are held to the standard of "a reasonable specialist practicing medicine in the light of present day scientific knowledge”, without regard to geographical circumstances, Naccarato v Grob, 384 Mich 248, 254; 180 NW2d 788 (1970). Even as to general practitioners, however, the trend of authority is away from the locality, see Sirila v Barrios, supra, opinion by Williams, J.

The locality rule had its origins in the 19th century, a time when the level of practice in remote rural areas was considerably lower than in urban areas, where opportunities for continuing education and broad experience were greater, see Siirila v Barrios, supra, at 612-613. As Justice Williams notes in his concurring opinion in Siirila, the situation today is much different:

"It is evident that today’s physician operates within a milieu in which the "coach and four”, Wiggins v Piver, 276 NC 134, 140; 171 SE2d 393, 396 (1970), has been replaced by sophisticated communication and improved transportation. '[MJedical journals, closed circuit television presentations, special radio networks for doctors, tape recorded digests of medical literature, and current correspondence courses’, 23 Vand L Rev 732, are not uncommon.
"All licensed physicians meet minimum standards required by state licensing boards. The increasing excellence of medical schools and the free interchange of scientific information have a 'consequent tendency to harmonize medical standards throughout the country’. Cook v Lichtblau, 144 So 2d 312, 315 (Fla App, 1962), quoting Montgomery v Stary, 84 So 2d 34, 39 (Fla, 1955).
"Development of the locality rule preceded accreditation of medical schools, which began in 1906 under the AMA Council on Medical Education.” Siirila v Barrios, supra, at 614. (Footnotes omitted.)

The result of improved education, Justice Williams concluded, is improved levels of practice, Siirila v Barrios, supra, at 615-616:

"Uniform and improved levels of medical practices must inevitably result from the encouragement of continuing medical education, the prevalence of regional medical centers, standardization and excellence of modern medical schools and training, the dissemination of reports via journals, and instant communication devices.” (Footnote omitted.)

We think a situation such as that presented in the case at bar is a singularly inappropriate one for application of the locality rule. Defendants are specialists, engaged in teaching their specialty to other physicians in a large, well-equipped hospital in a major metropolitan area. They suffer none of the disadvantages, such as lack of access to modern equipment and ignorance of modern techniques, which led to the development of the locality rule for general practitioners, see Siirila, supra. To adopt a rule that an expert witness must be familiar with procedures in the particular hospital in question—or even in other hospitals in the same geographical area—would be a step backward. It is a step we decline to take.

Dr. Gold testified that he was familiar with procedures in teaching hospitals in Toledo and, from his student days, in Ann Arbor. He professed to be familiar with the standard of care ordinarily utilized by gynecologists in supervising other physicians in training. We are of the opinion that the trial court did not abuse his discretion in finding Dr. Gold qualified to testify as an expert, Siirila v Barrios, supra, LeBlanc v Lentini, 82 Mich App 5; 266 NW2d 643 (1978).

Affirmed. Plaintiffs may tax their costs.

       We must point out that defendants’ liability is not predicated on the negligence of the resident, but upon their own negligence in failing to provide adequate supervision, cf. Abbe v Woman’s Hospital Assn, 35 Mich App 429; 192 NW2d 691 (1971).


text:
    B & W RUSTPROOFING, INC. v MICHIGAN BELL TELEPHONE COMPANY
    Docket No. 77-3163.
    Submitted December 6, 1978, at Lansing.
    Decided January 17, 1979.
    B & W Rustproofing, Inc., brought an action against Michigan Bell Telephone Company for damages for loss of profits because of the defendant’s breach of alleged duties to provide certain services. Michigan Bell moved for summary and accelerated judgment, and the Wayne Circuit Court, George T. Martin, J., granted accelerated judgment, stating that jurisdiction over the subject matter was in the Public Service Commission. Plaintiff appeals. Held:

    Although an action against a utility which attacks a tariff or code ordinarily should be brought before the Public Service Commission, the present complaint alleges tortious conduct and as such it was properly brought in the circuit court.
    Reversed.
    Courts — Jurisdiction — Torts — Utilities — Public Service Commission.
    A plaintiff, in an action against a utility, who is aggrieved by the provisions of a tariff or code ordinarily should seek relief by attack on those provisions before the Public Service Commission; however, where the plaintiffs claim is in tort, setting forth facts which would constitute tortious conduct causing injury and damage to the plaintiff, the claim may be filed in a court of general jurisdiction.
    Reference for Points in Headnotes
    64 Am Jur 2d, Public Utilities §§ 232, 276, 277.

      Lawrence A. Thompson & Associates (by Lawrence K. Kustra), for plaintiff.

      Werner M. Killen, for defendant.
    Before: D. E. Holbrook, Jr., P.J., and D. E. Holbrook and Cynar, JJ.
   Per Curiam.

Plaintiff appeals by right from an August 1, 1977, judgment of the Wayne County Circuit Court granting defendant’s motion for accelerated judgment on the ground of lack of jurisdiction over the subject matter.

On November 18, 1974, a representative of defendant called plaintiffs offices and advised plaintiff that its telephone number would be changed in September of 1975. A follow-up letter confirmed this change and further advised plaintiff that calls to its old number would automatically be transferred to plaintiffs new telephone number. The letter also explained that plaintiffs new number would appear in the September 1975 issue of the telephone directory.

In January of 1976 plaintiff filed a complaint in the present action. The complaint alleged that defendant failed to transfer calls to plaintiff’s new number and failed to include that number in the September 1975 directory. The complaint further alleged that defendant had a duty to provide these services as a result of its prior promise and prayed for $20,000 damages, constituting profits lost as a result of defendant’s breach of . these alleged duties.

Defendant moved for both summary and accelerated judgment: The motion for accelerated judgment was predicated on the theory that jurisdiction over the action rested with the Public Service Commission. The motion for summary judgment was based upon a claim that tariffs, promulgated by the Public Service Commission and included in plaintiffs contract, limited defendant’s liability in these circumstances.

In Valentine v Michigan Bell Telephone Co, 388 Mich 19; 199 NW2d 182 (1972), the Court was presented with virtually an identical situation. Plaintiff there brought an action in circuit court alleging negligence and other tortious conduct on the part of defendant. The Court held that summary judgment was properly granted, as plaintiffs complaint failed to set forth acts or conduct of defendant constituting negligence or other tortious activity.

However, the Court in Valentine, supra, made it clear that plaintiffs action was properly brought in circuit court. The Court noted that much of the confusion in the case arose from the lower court’s belief that the action should have been brought before the Public Service Commission. The Court distinguished between actions attacking the validity or applicability of a tariff and those sounding in tort. With regard to the former the Court noted:

"Ordinarily, a party aggrieved by the provisions of a tariff or code should seek relief by an attack upon those provisions before the Public Service Commission.” Valentine, supra at 26.

However, with regard to the latter the Court stated:

"[A] claim in tort that sets forth facts which would constitute tortious conduct to the injury and damage of the claimant can also be filed in a court of general jurisdiction.” Valentine, supra at 30.

See also Harbaugh v Citizens Telephone Co, 190 Mich 421; 157 NW 32 (1916), and Muskegon Agency, Inc v General Telephone Co of Michigan, 340 Mich 472; 65 NW2d 748 (1954).

An application of these principles to the present case indicates that the trial judge incorrectly concluded that the circuit court lacked jurisdiction over this action. The complaint sets forth allegations contending that defendant acted in a negligent manner. Since the complaint alleges tortious conduct on the part of defendant it was properly brought in circuit court.

The order of the circuit judge dismissing the action is reversed.

       We note that defendant filed a motion for summary judgment at the same time as the motion for accelerated judgment. No decision was ever rendered on the summary judgment motion. This motion involves a consideration of the applicability and validity of the tariffs limiting or eliminating defendant’s liability under certain circumstances. Although such a determination is usually one for the Public Service Commission, Valentine, supra at 26, it may be made by the circuit judge under the circumstances of this case. See MCL 24.264; MSA 3.560(164). Nothing herein, however, should be construed as bearing upon such a determination or upon the merits of the case.


text:
    EGGERMONT v CITY OF CLAWSON
    Docket No. 77-4527.
    Submitted December 12, 1978, at Detroit.
    Decided January 17, 1979.
    Cornelius Eggermont and several other landowners brought an action in Oakland Circuit Court in 1972 against the City of Clawson and the Treasurer of the City of Clawson, challenging a special assessment against their properties for the widening of a road. Trial was had in 1977, and a judgment granted in favor of two of the plaintiffs, John N. O’Brien, J. Defendants appeal. Held:

    During the pendency of this action the Tax Tribunal was created. The tribunal has exclusive jurisdiction over matters concerning special assessments. By the terms of the Tax Tribunal Act all pending matters subject to the tribunal’s exclusive jurisdiction were transferred to the Tax Tribunal on September 1, 1974. Therefore, the circuit court did not have subject-matter jurisdiction to decide this matter.
    Reversed and remanded to the Tax Tribunal.
    Taxation — Tax Tribunal — Jurisdiction — Special Assessments ■— Statutes.
    An action relating to special assessments for street improvements is subject to the jurisdiction of the Tax Tribunal; an action that was pending at the time the tribunal was created and was not heard before August 31, 1974, by the terms of the Tax Tribunal Act was transferred to the Tax Tribunal and the circuit court in which the matter was pending was ousted of its jurisdiction over the subject matter (MCL 205.731, 205.741, 205.771; MSA 7.650[31], 7.650[41], 7.650[71]).
    Reference for Points in Headnote
    70 Am Jur 2d, Special or Local Assessments §§ 146, 156.
    Frazier C. Foren, in propria persona.

    Thomas P. Jones, in propria persona.

      Davis, Hayward, Hertler, Jones & Kingsepp, for defendants.
    Before: Danhof, C.J., and R. M. Maher and D. C. Riley, JJ.
   Per Curiam.

Plaintiff landowners brought this action in Oakland County Circuit Court, challenging a special assessment to finance the widening of the road on which their property fronts. Trial on the merits resulted in judgment for two of the plaintiffs. Defendants appeal, claiming that the trial court erred in finding that no special benefit accrued to plaintiffs as a result of the road improvement. Because of the peculiar procedural posture of this case, we reverse without considering the merits and remand to the Tax Tribunal.

Although the complaint in this action was filed in 1972, trial was not had until 1977. Meanwhile, the Legislature enacted the Tax Tribunal Act, MCL 205.701 et seq.; MSA 7.650(1) et seq., effective July 1, 1974. That act created the Tax Tribunal and vested in it exclusive jurisdiction to review, inter alia, determinations and orders relating to special assessments, MCL 205.731; MSA 7.650(31), MCL 205.741; MSA 7.650(41). Section 71 of the Tax Tribunal Act provided for the transfer of pending matters subject to the tribunal’s jurisdiction, MCL 205.771; MSA 7.650(71):

"The following subdivisions are applicable to a matter subject to the tribunal’s jurisdiction, but which is pending on the effective date of this act before any forum, described in section 41:
"(a) A matter which has not been heard on or before August 31, 1974, is transferred to the tribunal on September 1, 1974.”

Because the instant case was pending on the effective date of the act, but had not been heard on or before August 31, 1974, it is clear that the circuit court was ousted of its jurisdiction of this matter on September 1, 1974, cf. Consumers Power Co v Big Prairie Twp, 81 Mich App 120; 265 NW2d 182 (1978), Eyde v Lansing Twp, 79 Mich App 358; 261 NW2d 321 (1977), remanded 402 Mich 950j (1978). Apparently neither the court nor the parties realized that the court no longer had jurisdiction, and the matter went to trial. However, we must reverse the trial court’s judgment for lack of jurisdiction over the subject matter. The Tax Tribunal being the proper forum for this action, we remand to that body for consideration on the merits, Eyde, supra.

Reversed and remanded to the Tax Tribunal for further proceedings. No costs, neither party having prevailed in full.

       We note that subject-matter jurisdiction may not be conferred by the conduct or consent of the parties, Shane v Hackney, 341 Mich 91; 67 NW2d 256 (1954).


text:
    PEOPLE v RIDNER
    Docket No. 77-4888.
    Submitted November 8, 1978, at Detroit.
    Decided January 17, 1979.
    Dwayne A. Ridner pled guilty to a charge of malicious destruction of property over the value of $100 but requested youthful trainee status under the Holmes Youthful Trainee Act. The trial court agreed to hold the guilty plea "in abeyance” pending successful completion of three years probation as a youthful trainee. The defendant subsequently pled guilty to possession of marijuana, and the court revoked his youthful trainee status and sentenced him to imprisonment on the malicious destruction charge, Monroe Circuit Court, William J. Weipert, Jr., J. Defendant appeals, alleging that his guilty plea was not revived by revocation of his youthful trainee status. Held:

    It is assumed that the trial court did in fact set aside the guilty plea, despite its reference to holding the plea in abeyance, for the court was without jurisdiction to place the defendant on youthful trainee status until the plea was set aside. Upon revocation of the youthful trainee status, the proceedings against the defendant were reinstated at the point where they were interrupted for consideration of youthful trainee status. Therefore, the guilty plea, having been set aside, became a nullity, and the court was without power to sentence the defendant at the time of the revocation.
    Reversed and remanded.
    1. Criminal Law — Youthful Trainees — Plea of Guilty — Withdrawal of Plea — Statutes.
    Youthful trainee status under the Holmes Youthful Trainee Act is not available to a defendant after a plea of guilty has been accepted; however, if a defendant is allowed to withdraw his plea of guilty, he may thereby again become eligible for treatment under the act (MCL 762.11, 762.12; MSA 28.853[11], 28.853[12])._
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 503, 504.

       21 Am Jur 2d, Criminal Law §§ 533, 569.

      2. Criminal Law — Youthful Trainees — Plea of Guilty — Sentencing — Revocation of Trainee Status — Statutes.
    A defendant whose plea of guilty was set aside in order that he could be placed on youthful trainee status and whose youthful trainee status was subsequently revoked was improperly sentenced for the crime to which he had pled guilty; revocation of youthful trainee status reinstates the proceedings at the point where they were interrupted to consider a defendant for treatment as a youthful trainee, and where the guilty plea has been set aside it becomes a nullity (MCL 762.12; MSA 28.853[12]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and William P. Godfroy, Assistant Prosecuting Attorney, for the people.

      James H. Davies, for defendant on appeal.
    Before: Allen, P.J., and R. M. Maher and J. E. Townsend, JJ.

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

   Per Curiam.

Defendant was charged with malicious destruction of property over $100, MCL 750.377a; MSA 28.609(1). At his arraignment, defendant tendered a plea of guilty, but requested that he be afforded youthful trainee status under the Holmes Youthful Trainee Act, MCL 762.11 et seq.; MSA 28.853(11) et seq. Pursuant to a plea agreement, the prosecutor did not oppose defendant’s request.

The trial court accepted defendant’s plea of guilty pending investigation of defendant’s eligibility for youthful trainee status, indicating that if defendant qualified for placement under the Holmes act, his plea would be set aside. At a subsequent hearing, the court indicated that it was holding defendant’s plea "in abeyance” pending successful completion of three years probation as a youthful trainee, and ordered him committed to the Department of Corrections for a period not to exceed one year. Ten days later, defendant once again appeared before the court, at which time he admitted to the court that he had pled guilty to possession of marijuana after being placed on youthful trainee status. Subsequently, defendant’s youthful trainee status was revoked and defendant was sentenced to a term of 1 to 4 years imprisonment for malicious destruction of property.

Defendant claims on appeal that the trial court was without power to sentence him immediately upon revocation of his youthful trainee status. Defendant contends that his guilty plea was of necessity set aside prior to placing him on youthful trainee status and was not revived by revocation of that status.

The Holmes Youthful Trainee Act provides, in part, MCL 762.11; MSA 28.853(11), MCL 762.12; MSA 28.853(12):

"When any youth is alleged to have committed a criminal offense between his seventeenth and twentieth birthdays, the court of record having jurisdiction of such criminal offense may with the consent of either the affected youth or his legal guardian or guardian ad litem elect to consider and assign such youth to the status of youthful trainee.
"Sec. 12. The court of record, having jurisdiction over the criminal offense referred to in section 1, may at any time terminate its consideration of the youth as a youthful trainee or, once having assigned the youth to the status of a youthful trainee, may at its discretion revoke such status at any time prior to the youth’s final release. Such termination of consideration, or such revocation of status as a youthful trainee, shall serve to reinstate the criminal case against such youth at the point interrupted when the consideration as a youthful trainee was commenced. ” (Emphasis added.)

Interpreting the first section quoted, this Court has held that youthful trainee status under the Holmes act is not available after a plea of guilty has been accepted, because the offense is no longer merely "alleged”, People v Bandy, 35 Mich App 53; 192 NW2d 115 (1971). Accord, People v Hardesty, 67 Mich App 376; 241 NW2d 214 (1976). The Bandy Court, however, also held that "after defendant was permitted to withdraw his plea of guilty, he was a youth 'alleged to have committed an offense’ ”, and was once again eligible for treatment under the Holmes act, Bandy, supra, at 58.

As the above-cited opinions make clear, the trial court was without jurisdiction to place defendant on youthful trainee status until his plea of guilty was set aside. We therefore assume that, prior to placing defendant on youthful trainee status, the court did in fact set aside defendant’s plea, despite its reference to holding the plea in abeyance. Defendant then became once more a youth alleged to have committed a crime and eligible for placement under the Holmes act. When his youthful trainee status was subsequently revoked, the proceedings were reinstated at the point at which they were interrupted, and defendant became once again a person accused of a crime. Defendant’s guilty plea, having been once set aside, became a nullity, People v George, 69 Mich App 403; 245 NW2d 65 (1976). He must therefore be given the opportunity to enter a new plea and, if he so desires, a trial.

We are not unaware of People v Roberson, 22 Mich App 664; 177 NW2d 712 (1970), cited by plaintiff in its brief, in which this Court reversed for a hearing on the question whether the defendant’s youthful trainee status should be revoked, without commenting on the question, implicit in the factual situation, whether sentence could be imposed immediately upon revocation. We find no precedential value in the Court’s lack of comment on this question. There is no indication that the issue was even raised. We note further that Roberson was decided prior to People v Bandy, supra, and People v Hardesty, supra.

Reversed and remanded for further proceedings not inconsistent with this opinion.

      We note that the court at the arraignment proceeding indicated that he intended to set the plea aside if defendant qualified for youthful trainee status.

       We find support for our conclusion in other provisions of the Holmes act. MCL 762.12; MSA 28.853(12), quoted in part in the text, supra, concludes as follows:

        "No information divulged by the youth, subsequent to the commencement of consideration of the youthful trainee status, may be

        admissible as evidence in the criminal case. Should the status of a youthful trainee be revoked and sentence imposed under criminal procedure, the court in imposing sentence shall specifically grant credit against the sentence for time served as a youthful trainee in an institutional facility of the department of corrections.” (Emphasis added.)
      MCL 762.14; MSA 28.853(14) provides in part:
      "An assignment of a youth to the status of youthful trainee, as provided in this chapter, shall not be deemed to be a conviction of crime and such person shall suffer no civil disability, right or privilege following his release from such status because of such assignment as a youthful trainee. Unless such person shall be later convicted of the crime alleged to have been committed, referred to in section 1, all proceedings relative to the disposition of the criminal charge and to the assignment as youthful trainee shall be closed to public inspection * * (Emphasis added.)


text:
    SOLOMAN v WESTERN HILLS DEVELOPMENT COMPANY
    Docket No. 77-4932.
    Submitted November 13, 1978, at Lansing.
    Decided January 17, 1979.
    Plaintiffs, Emily J. Soloman and George C. Soloman, entered into a purchase agreement with defendant Western Hills Development Company for the purchase of a parcel of real estate and paid $100 in earnest money. The contract called for delivery of a deed in exchange for the purchase price "when plat is recorded”. Defendants Claude O. Darby, Jr., Claude O. Darby, Sr., and Darby & Son, Inc., acted as agents for Western Hills in the transaction. The property in question was subsequently conveyed to defendants Ivan A. MacArthur, Robert G. Banwell and Sheila T. Banwell. Western Hills attempted to return the earnest money with an explanation that it had abandoned the development, but plaintiffs insisted upon performance of the agreement and, finally, instituted an action for specific performance or for damages for breach of contract. The Genesee Circuit Court, Earle E. Borradaile, J., granted summary judgment for defendants for failure to state a cause of action, ruling that the agreement was unenforceable because it failed to specify a time for performance. Plaintiffs appeal. Held:

    The sales agreement created a promise on the part of the seller to record the plat within a reasonable time and the promise is enforceable by the buyers.
    Reversed and remanded.
    Vendor and Purchaser — Contracts — Real Property — Sales — Interpretation.
    A sales agreement for the sale of realty which provides that the sale is to be consummated by delivery of a deed in exchange for the purchase price "when plat is recorded” creates a promise on the part of the seller, enforceable by the buyer, to record the plat within a reasonable time.
    Reference for Points in Headnote
    77 Am Jur 2d, Vendor and Purchaser §§ 65, 67.

      Sanford Kesten, for plaintiffs.

      Neithercut, Klapp, Shegos & Dillard, for defendants.
    Before: Cynar, P.J., and R. B. Burns and M. B. Breighner, JJ.

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

   Per Curiam.

Plaintiffs appeal as of right from an October 28, 1977, order granting defendants’ motion for summary judgment.

On October 14, 1975, plaintiffs filed suit against defendants seeking specific performance of a real estate purchase agreement with Western Hills Development Company. Alternatively they sought damages for breach of contract. The suit arose as a result of an October 15, 1969, purchase agreement for sale of a lot in the Western Hills Subdivision #5. Defendants Claude O. Darby, Jr., Claude O. Darby, Sr., and Darby & Son, Inc., acted as agents for Western Hills Development Company in this transaction. The agreement stated that the purchase was to be consummated by a delivery of the deed in exchange for the purchase price "when plat is recorded”. One hundred dollars in earnest money was paid by plaintiffs as part of this transaction.

Subsequently, Western Hills conveyed the property in question to defendants MacArthur and Banwell who recorded a plat for the subdivision. Efforts were then made to return the $100 to plaintiffs, with the explanation that Western Hills had abandoned the development. However, plaintiffs insisted upon performance of the agreement.

After lengthy discovery, defendants moved for summary judgment on the ground that plaintiffs had failed to state a claim upon which relief can be granted. The trial judge granted defendants’ motion. He ruled that the October 15, 1969, purchase agreement was not an enforceable contract because it did not specify a time for performance.

We note initially that summary judgment was granted under GCR 1963, 117.2(1) for failure to state a claim upon which relief can be granted. In considering such a motion, the trial judge must limit his examination to the pleadings and must accept as true the facts pled in plaintiffs complaint. Karakas v Dost, 67 Mich App 161, 166; 240 NW2d 743 (1976). In the present case, it was proper for the trial judge to examine the purchase agreement in conjunction with the motion for summary judgment. The agreement was attached to plaintiffs’ complaint and became part of that complaint "for all purposes”. GCR 1963, 113.4.

The crux of this case centers about the validity of the contract between the parties. On appeal plaintiffs contend that there was a binding contract between the parties and that a "reasonable time” requirement should be read into the contract to constitute the time of performance. Defendants agree with the analysis of the trial judge and further contend, as they did below, that their recording of the plat constituted a condition precedent, the nonperformance of which excused their duty of performance.

We disagree with defendants’ characterization of the clause "when plat is recorded”. The clause does not read "if plat is recorded”. If it had been so drafted we would agree that the recording of the plat constituted a condition precedent to their duty of performance under the contract. However, as drafted the clause is susceptible to the interpretation that the plat will be recorded at some unknown time in the future.

It is a general rule of construction that where a contract is ambiguous it will be construed against the party preparing it. Equipment Leasing Corp v Arntz, 33 Mich App 602, 608; 190 NW2d 305 (1971), Seaboard Surety Co v Bachinger, 313 Mich 174, 179; 20 NW2d 854 (1945). In the present case, the purchase agreement consisted of a standard form, filled in by Western Hills’ agents. Accordingly, we construe the contract clause as a promise to record the plat at some future time, rather than a condition precedent to defendants’ duty of performance under the contract that may be satisfied at their option.

However, the problem still remains as to the date of performance. No particular date is specified in the purchase agreement. For this reason, the trial judge ruled that the contract was unenforceable.

Michigan case law does not favor the destruction of contracts due to indefiniteness. See Nichols v Seaks, 296 Mich 154, 159; 295 NW 596 (1941), and Band v Hazel Park Development Co, 337 Mich 626, 628; 60 NW2d 333 (1953). Where the time of performance is indefinite, performance may be required to be rendered within a reasonable time. J W Knapp Co v Sinas, 19 Mich App 427, 431; 172 NW2d 867 (1969). What constitutes a "reasonable time” depends upon the facts and circumstances of the case, Knapp, supra, p 431.

We conclude that such a "reasonable time” requirement should be read into the present contract. Therefore, we hold that the parties entered into a valid contract for the sale of property. As part of this contract defendant promised to deliver the deed to the property in exchange for the purchase price at the time the plat was recorded. Implicit in this promise was a promise that the plat would be recorded in a "reasonable time”. Since the contract between the parties was valid the trial judge erred in granting defendants’ motion for summary judgment.

Reversed and remanded. Costs to plaintiffs.

       Defendants rely upon Carlson v Johnson, 275 Mich 35; 265 NW 517 (1936), for the proposition that a promise made conditional upon the will of the promisor is unenforceable. Carlson involved an intrafamily dispute and a contract that expressly indicated that the debt there need not be paid "until such time as he feels that he is able and willing to repay the same”. In the present case the controversy arose in a commercial setting. Furthermore, the contract here is devoid of any language expressly reserving for defendants the right to choose the time of performance. Therefore, we decline to follow the holding of Carlson.

       Nothing said herein should be construed as bearing upon the merits of plaintiffs’ claims.