author: ■ Holbrook, P. J.

text:
    MOOI ROOFING COMPANY v. De YOUNG.
    1. Judgment — Summary Judgment — Pleading.
    All well-pleaded material allegations in a complaint are to be taken as true in deciding a motion for summary judgment (GCR 1963, 117).
    2. Libel and Slander — Pleading—Labor Dispute.
    Employer’s complaint held, to have stated a cause of action in libel, where it alleged that defendant union members had carried placards at a job site stating plaintiff was paying substandard wages, causing plaintiff and its employees to leave the job site, plaintiff informed defendants that plaintiff was a union employer and paying a proper wage under a labor contract but that the following day there was a repetitive use of the placard.
    3. Same — Malice—Labor Relations — Jurisdiction of State Court.
    A State court has jurisdiction to apply State remedies where either party to a labor dispute circulates false and defamatory statements during a union organizing campaign,' if the complainant pleads and proves that the statements were made with malice and injured him.
    References for Points in Headnotes
    [1] 41 Am Jur, Pleading §§ 340-343.
    [2] 38 Am Jur, Libel and Slander § 67.
    [3] 33 Am Jur, Libel and Slander §§ 67, 111.
    [4] 33 Am Jur, Libel and Slander § 67 j 41 Am Jur, Pleading §§ 340-

      4. Labor Belations — Libel and Slander — Federal Pre-emption— Summary Judgment.
    'Action for defamation arising out of a labor dispute held, not pre-empted by the Federal act governing the national labor relations board, hence, granting motion for summary judgment for defendant union and its officers was improper (29 USCA, § 151 et seq.; GOB 1963, 117).
    Appeal from Ottawa; Ray (Chester A.), J.
    Submitted June 7, 1967, at Grand Rapids.
    (Docket No. 3,376.)
    Decided December 8, 1967.
    Complaint by Mooi Roofing Company, a Michigan corporation, against Edward V. De Young and Local Union No. 211 of United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association of Grand Rapids affiliated with AFL-CIO. Summary judgment for defendants. Plaintiff appeals.
    Reversed and remanded.

      Vander Veen, Freihofer & Goolc (Donald F. Oosterhouse, of counsel), for plaintiff.

      Donald J. Prebenda, for defendants.
   ■ Holbrook, P. J.

Plaintiff, Mooi Roofing Company, brought a libel action against defendants on November 1, 1966, in the Ottawa county circuit court. Summary judgment was entered against plaintiff, whereupon appeal has been made to this Court.

The fapts pertinent to plaintiff’s appeal follow: On October 18,1966, defendant Edward V. De Young, a business agent of defendant Local #211 of United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association of Grand Rapids, picketed a job site on which plaintiff and its employees were working. A placard was carried by defendant Edward V. De Young which stated, “Mooi Roofing Company is paying substandard wages”. As a result, plaintiff and its employees left tbe job site.

At a meeting held the nest day, plaintiff requested defendants to discontinue carrying the placard at the job site, informing defendants that plaintiff was a union employer and paying a proper wage under provisions of a labor contract with a certified bargaining agent (union). The following day, October 20, plaintiff and its employees returned to the job site; the picketing was resumed and the placard again displayed; plaintiff and its employees again left the job site.

On November 1, 1966, plaintiff filed its complaint in this suit alleging libel and about the same time, filed a complaint with the regional office of the National Labor Relations Board, charging that defendants were guilty of an unfair labor practice 'under the Federal labor law then in force. On November 18, 1966, in the NLRB proceeding, a settlement agreement was entered into by plaintiff and defendants whereby defendants agreed to withdraw their pickets and also to recognize the plaintiff to be a union employer. Notices pertaining to the settling of the dispute were posted at the job site.

On November 28, 1966, defendants filed a motion for summary judgment, in the instant case, which was later amended, and plaintiff filed an answer to the motion and the amended motion for summaiy judgment. A hearing was held January 27, 1967.’ Defendants asserted that summary judgment should be granted because (1) the complaint failed to. state a cause of action, i.e., the action could not be sustained because of plaintiff’s failure to plead malice with sufficient particularity, and (2) the Ottawa county circuit court lacked jurisdiction because a defamation action arising out of a labor dispute, is pre-empted by Federal labor law — the NLRB lias exclusive jurisdiction.

The trial court refused to grant summary judgment on the first of defendants’ claims, but granted summary judgment against plaintiff on the second. Since both these grounds have been set forth as questions for review — the second by plaintiff and the first by deféndants — consideration will be given to each separately.

1. Does plaintiff’s complaint state a cause of action?

The trial court determined that plaintiff’s complaint should not be dismissed or summary judgment be granted because a cause of action was stated. The written opinion of the trial court states in part as follows:

“As to the first ground stated by the defendants, motions for summary judgment under GCR1963,117 have to be read with all of the pleadings in the cause fully in mind, Durant v. Stahlin (Appeal in re Van Dusen, Elliott, Romney) (1965), 375 Mich 628, at pp 645, 646. Applying the rules for a summary judgment for libel and defamation as laid down in that case, the court finds that the affidavit in support of the [amended] motion for summary judgment, while it may controvert the first occurrence of the alleged defamation on October 18, does not controvert the alleged defamation occurring on October 20, 1966, after the defendant was informed that plaintiff was a union employer, and as a result, the complaint alleges sufficient facts concerning the last occurrence, from which an inference could be drawn that the act of placard carrying on October 20, 1966, was in fact malicious; and that the complaint should not be dismissed or the summary judgment granted on the basis that it does not state a cause of action.”

After careful examination of defendant’s amended motion for summary judgment, keeping fully in mind all of the pleadings entered (Durant v. Stahlin [Appeal in re Van Dusen, Elliott, Romney], supra) we conclude that the trial court’s determination was a proper one. Plaintiff’s complaint states a cause of action in libel.

2. Does the Ottawa county circtiit court lack jurisdiction by reason of Federal pre-emptionf

Plaintiff candidly admits that his appeal to this Court rests entirely on the recent United States Supreme Court case of Linn v. United Plant Guard Workers (1966), 383 US 53 (86 S Ct 657,15 L ed 2d 582). Therein, plaintiff Linn, an officer of an employer soug'ht to be organized by the defendant union, commenced an action for libel based on defamatory statements which were made during the course of a labor dispute relating to management conduct. The district court dismissed plaintiff Linn’s complaint on the ground that the NLRB had exclusive jurisdiction over the subject matter. The Court of Appeals affirmed. (Linn v. United Plant Guard Workers [CA 6, 1964], 337 F2d 68). The Supreme Court reversed in a 5-to-4 decision the 6th Circuit Court of Appeals’ affirmance. The majority opinion, written by Mr. Justice Clark, stated in part as follows (p 55):

“We conclude that where either party to a labor dispute circulates false and defamatory statements during a union organizing campaign, the court does have jurisdiction to apply State remedies if the complainant pleads and proves that the statements were made with malice and injured him.”

Defendants contend that Linn v. United Plant Guard Workers, supra, applies only to natural persons who complain of being libelled.

To restrict the Linn decision in such a manner would result in an incongruity—a State court could entertain, a defamation suit arising out of a labor dispute where a natural person is maliciously injured, but not where an employer or union is defamed. The majority opinion in Linn, supra, indicates the contrary as stated on p 66 as follows:

“Finally, it has been argued that permitting State action here would impinge upon national labor policy, because the availability of a judicial remedy for malicious libel would cause employers and unions to spurn appropriate administrative sanctions for contemporaneous violations of the act. We disagree. When the board and State law frown, upon the publications of malicious libel, albeit for different reasons, it may be expected that the injured party will request both administrative and judicial relief.” (Emphasis supplied.)

The Linn decision is considered in an excellent and comprehensive case note entitled “Labor Relations— Federal Pre-emption of Defamation Cases,” appearing in 45 NC L Rev (1966), p 274. D The case note presents the background leading to the Linn decision and its extent and import, as follows (pp 275-280):

“In order to determine the competency of States to regulate libel and slander in a labor dispute context, the Court looked for authority in a score of pre-emption cases it had handed down in the past 15 years. The leading ease of Garner v. Teamsters Union held that where the activity obviously fell within the NLRB’s jurisdiction to prevent unfair labor practices, the State through its courts could not adjudge the same controversy and extend its own form of remedy. More important than the holding itself was the approach the Court took. The Court no longer concerned itself with the merits of the case, but directed itself solely to the problem of Federal-State relations under the act. The breadth of the new approach became more apparent in 1955 with Weber v. Anheuser-Busch, Inc., where the Court extended Federal pre-emption to cover all activity that could reasonably be deemed to come within the prohibitions or protections afforded by the act. For several years following Weber, the Court adhered to its test of reasonable applicability of the act, but still found several situations where ■the State authority had not been exclusively absorbed by the Federal enactment. The 1959 San Diego Building Trades Council v. Garmon decision extended the pre-emption doctrine to its present proportions and put to rest most of the elaborate distinctions which had developed around prior holdings. The Court directed attention to the single issue of whether the activity involved is ‘arguably subject to’ the protections of section 7 or the prohibitions of section 8 of the act. Under this test, both Federal and State courts must defer to the exclusive competence of the NLRB in all cases where an argument could be made that the activity involved was subject to the provisions of the labor management relations act. Once the primary jurisdictional question of whether the conduct called into question may reasonably be asserted to be subject to NLRB cognizance is decided in the affirmative, State causes of action are totally precluded regardless of the remedy sought. The pre-emption principle applies to damage awards as well as to injunctions, to State court proceedings as well as to regulation by a State agency, and to actions based upon common law or statutes of general application as well as to proceedings under a State labor relations statute.
“Although Garmon significantly enlarged the primary jurisdiction of the NLRB, it clearly established two exceptions to the basic rule of pre-emption. If the activity regulated was a merely peripheral concern of the labor management relations act, State law and remedies could be applied. Cited as representative was International Ass’n of Machinists v. Gonzales, 9but the Court did not suggest what types of activity other than arbitrary expulsion from union membership would constitute a ‘merely peripheral concern’, and in two 1963 decisions, Local 100, United Ass’n of Journeymen v. Borden and Local 207, Int’l Ass’n of Bridge Workers v. Perko, the Court restricted the internal activities exception almost to the point of extinction. Also excepted from the preemption doctrine were ‘interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that congress had deprived the States of the power to act.’ Prior to Linn, the only State interest found compelling enough to allow State regulation, in spite of the fact that the activity might also constitute an unfair labor practice, was the regulation of intimidation, violence, and other threats to the peace. The Garner-Weber-Garmon line of cases clearly recognized that the State may exercise ‘its historic power over such traditionally local matters as public safety and order and the use of the streets and highways’ by any method consistent with its police powers. But except for situations earmarked by violence, the Court continued to pursue a policy of rigorous pre-emption of State intervention into the labor field whether the regulation was applied through injunction, damages, or criminal contempt sanctions.
“In Linn the Court added new vitality to the two exceptions and expressly brought State defamation actions within the exceptions recognized in Garmon. The Court reasoned that State courts handling libel suits deal with an interest entirely different from that with which the NLRB deals. The board is not interested in protecting reputation or deterring violence; it looks only to the coercive or misleading nature of the statements surrounded by other circumstances in order to determine an unfair labor practice charge, or whether the employees had been so misled that a fair election had become impossible. Since the board is unconcerned with the defamatory character of the statement, a judicial determination that the statements were libelous in character would have no effect upon the board’s jurisdiction over the merits of the labor dispute itself. Thus the injury caused to an individual by a defamatory statement is merely incidental to the board’s inquiry and the application of State remedies would be a ‘merely peripheral concern of the labor management relations act.’
' “The Court further concluded that the States’ concern with redressing malicious libel is ‘so deeply rooted in local feeling and responsibility “that an overriding State interest” * * * should be recognized.’ The traditional justification for libel actions, namely the tendency of libel or slander to cause a breach of the peace, is closely related to the breach of the peace line of cases recognized in Garmon. The Supreme Court itself has recognized maintenance of the peace as one of the purposes of civil actions for libel. Moreover, the State is traditionally concerned with providing a peaceful forum to which individuals whose reputations have been damaged by false and injurious statements can bring their claims. Balanced against such meaningful State interests, the use of the known lie as a tool has so little social utility that it should be afforded the minimum protection consistent with national labor policy.”

Defendants do not contend that an employer may not be defamed. See Prosser on Torts (3d ed), p' 762. We conclude that a suit for defamation arising out of a labor dispute is not pre-empted by the Federal act governing the NLRB, and therefore -the granting of the motion for summary judgment in favor of defendant was not proper.

Reversed and remanded for further proceedings not inconsistent with this opinion. Costs to plaintiff-appellant.

Burns and Wise, JJ., concurred.

       29 TJSCA § 141 et seq.—Reporter.

      Also, see 18 Maine L Rev (1966), p 273, “Labor Law— Pre-emptive Jurisdiction of NLRB—Common Law Libel Action Arising Out of Labor Dispute.”

       Paragraph 8 of plaintiff’s complaint states as follows:
      “That at the meeting of October 19, 1966, defendant Edward V. De Young stated to plaintiff’s officers and agents that the placard would continue to be carried until plaintiff signed a contract with Local #211, even though said defendant knew full well that plaintiff had a contract with another labor organization and was not legally free to sign any contract with Local #211.” See Chapman v. Romney (1967), 6 Mich App 36 wherein it is stated at p 38: “In a motion for summary judgment, it is axiomatic that all well-pleaded materia] allegations contained in a complaint are to be taken as true.”

       Also, soe San Diego Building Trades Council v. Garmon (1957), 359 US 236 (79 S Ct 773, 3 L ed 2d 775).

       (1953), 346 US 485 (74 S Ct 161, 98 L ed 228).

       (1955), 348 US 468 (75 S Ct 480, 99 L ed 546).

       (1959), 359 US 236 (79 S Ct 773, 3 L cd 2d 775).

       (1958), 356 US 617 (78 S Ot 923, 2 L ed 2d 1018).

       (1963), 373 US 701 (83 S Ot 1429,10 L ed 2d 646).

       (1963), 373 US 701 (83 S Ct 1429, 10 L ed 2d 646).

       “We similarly eonelude that a State’s concern with redressing malicious libel is ‘so deeply rooted in local feeling and responsibility’ that it fits within the exception specifically carved out by Garmon." Linn v. United Plant Guard Workers, supra, at p 62.

       “Nor should the fact that defamation arises during a labor dispute give the board exclusive jurisdiction to remedy its consequences. The malicious publication of libelous statements does not in and of itself constitute an unfair labor practice. While the board might find that an employer or union violated § 8 by deliberately making false statements, or that the issuance of malicious statements during an organizing campaign had such a profound effeet on the election. as to require that it be set aside, it looks only to the coercive or misleading nature of the statements rather than their defamatory quality.” Linn v. United Plant Guard Workers, supra, at p 63.

       “In the light of these considerations it appears that the exercise of State jurisdiction here would be a ‘merely peripheral concern of the labor management relations aet’, provided it is limited to redressing libel issued with knowledge of its falsity, or with reckless disregard of whether it was true or false.” Linn v. United Plant Guard Workers, supra, at p 61.

       “Moreover, we believe that ‘an. overriding State interest’ in protecting its residents from malicious . libels should be recognized in these circumstances.” Linn v. United Plant Guard Workers, supra, at p 61.

       “The most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth. But it must be emphasized that malicious libel enjoys no constitutional protection in any context. After all, the labor movement has grown up and must assume ordinary responsibilities. The malicious utterance of defamatory statements in any form cannot be condoned, and unions should adopt procedures calculated to prevent such abuses. * * *
      “As was said in Garrison v. Louisiana, 379 US 64, 75 (85 S Ct 209, 216, 13 L ed 2d 125, 133) : ‘The use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.’ We believe that under the rules laid down here it can be appropriately redressed without curtailment of State libel remedies beyond the actual needs of national labor policy.” Linn v. United Plant Guard Workers, supra, at pp 63, 67.

       29 USCA § 141 et seq.—Reporter.


source: Caselaw Access Project

author: Baum, J.

license: Public Domain

text:
    DAUGHERTY v. WICKES CORPORATION.
    1. Insurance — Annuity—Propit-Sharing Plan.
    Profit-sharing plan which includes a provision that makes benefits payable upon termination of employment, unrelated to death or retirement, does not resemble a contract of life insurance, endowment, or annuity upon the life of the employee participating.
    2. Same — Profit-Sharing Plan.
    Profit-sharing plan of decedent’s employer which made benefits payable upon termination of employment, unrelated to death or retirement, is not within insurance statutes.
    References for Points in Headnotes
    [1,2] 29 Am Jur, Insurance §§17, 18; 30 Am Jur, Master and Servant §§ 62, 64, 71, 116.
    [3] 26 Am Jur, Husband and Wife § 4; 29A Am Jur, Insurance § 1642; 50 Am Jur, Statutes § § 345, 346.
    [4] 29 Am Jur, Insurance §§ 17, 18; 29A Am Jur, Insurance § 1642; 35 Am Jur, Master and Servant § 116.
    [5,11] 29A Am Jur, Insurance § 1642.
    [6] 24 Am Jur 2d, Divorce and Separation § 504; 25 Am Jur 2d, Dower and Curtesy §§ 134, 141.
    [7] 24 Am Jur 2d, Divorce and Separation §§ 879, 904; 35 Am Jur, Master and Servant § 116.
    [8] 24 Am Jur 2d, Divoree and Separation § 904'; 29A Am 'Jur, Insurance § 1642; 35 Am Jur, Master and Servant § 116.
    [9,10] 26 Am Jur, Husband and Wife § 4; 29A Am Jur, Insurance § 1642.
    [12] 35 Am Jur, Master and Servant §§ 116, 119.

      3. Statutes — Insurance Policy — Divorce—Derogation of Common Law — Strict Construction.
    Statute providing that upon divorce of husband and wife, unless otherwise ordered in divorce decree, any policy or contract of life insurance, endowment or annuity upon the life of the husband shall become payable to the estate of the husband or to such named beneficiary as he shall affirmatively designate is in derogation of the common law and is to be strictly construed (OL 1948, § 552.101).
    4. Insurance — Profit-Sharing Plan — Divorce—Rights of Parties.
    Deferred profit-sharing plan of decedent’s employer is not “life insurance, endowment, or annuity upon the life of the husband” within the meaning of statute which provides that upon divorce, the proceeds of any policy or contract of life insurance, endowment, or annuity upon the life of the husband shall beeome payable to the estate of the husband or to such named beneficiary as he shall affirmatively designate, unless the decree of divorce provides otherwise (CL 1948, § 552.101).
    5. Judgment — Estoppel—Divorce—Profit-Sharing Plan.
    Neither the provision of divorce decree barring dower of the wife nor provision relating to insurance or retirement estopped wife from claiming proceeds of deferred profit-sharing plan after husband’s death, where decree authorized him to change the beneficiary in such plan but his designation in it of her was never changed.
    6. Same — Res Judicata — Divorce—Profit-Sharing Plan.
    Divorce decree provision barring dower of wife held, not res judicata of her claim as beneficiary in deferred profit-sharing plan offered by former husband’s employer in which he had made no change in beneficiary after the divorce before he died.
    7. Divorce — Profit-Sharing Plan.
    Husband, now deceased, was vested with complete ownership of his participation in profit-sharing plan of his employer and his former wife was divested of any claim upon it by a provision of a divorce decree concerning proceeds of retirement contract. ■
    8. Same — Profit-Sharing Plan — Designation of Beneficiary.
    Deceased husband, who left his former wife as named benefieiary of his profit-sharing plan with his employer after deeree of divoree divested her of any claim upon the plan by its provision concerning proceeds of retirement contract, held, to have given the proceeds of the profit-sharing plan to his former wife by doing nothing to change her designation as benefieiary.

      9. Statutes — Insurance Policy — Divorce.
    Statute providing that upon divorce of husband and wife, unless otherwise ordered in divorce decree, any policy or contract of life insurance, endowment, or annuity upon the life of the husband shall become payable to the estate of the husband or to such named beneficiary as he shall affirmatively designate was enacted to change the result of judicial decisions which held that a divorced wife urns entitled to life insurance proceeds w'here she remained the named beneficiary of insurance policies on her former husband’s life (CL 1948, § 552.101).
    10. Insurance — Beneficiary—Divorced Spouse.
    A divorced spouse who is the named beneficiary of a life insurance contract takes the insurance proceeds notwithstanding the divorce, absent a change in beneficiary executed substantially in accordance with the provision of the insurance contract, in those life insurance cases to which the 1939 statute, providing that sueh a poliey shall be payable to the estate of the husband or to sueh named benefieiary as he shall affirmatively designate, does not apply (CL 1948, § 552.101).
    11. Same — Designation of Beneficiary — Wife—Description.
    Use of the word “wife” in the designation of a beneficiary of a life insurance policy is descriptive only, unless the context clearly indicates otherwise, so that termination of the beneficiary’s status as wife does not destroy her right to receive the insurance proceeds, absent a statute on the subject.
    12. Contracts — Profit-Sharing Plan — Change of Beneficiary.
    Change of beneficiary can be accomplished only by procedures which are in substantial compliance with the provisions of a written profit-sharing plan which provides for a change of beneficiaries, where the participant in the plan is free to change the beneficiary.
    Appeal from Saginaw; Borchard (Fred J.), J.
    Submitted Division 3 June 7, 1967, at Lansing.
    (Docket No. 3,028.)
    Decided December 8, 1967.
    Leave to appeal denied March 6,1968.
    See 380 Micb 761.
    Complaint by Henrietta Daugherty, special administratrix of the estate of Emil Julius Hildebrandt, deceased, against The Wickes Corporation, a Micbigan corporation; Union Mutual Life Insurance Company, a-foreign corporation; and Mary Ann Hildebrandt, presently known as Mary Ann Skimson, for ¡court order which would require the paying of the proceeds of the life insurance policy on the life of deceased and the paying of the proceeds of the deceased’s deferred profit-sharing plan into the estate of the deceased. Judgment for plaintiff. Defendant Mary Ann Skimson appeals.
    Reversed in part and remanded.

      Egloff, Mainolfi, Taylor, McGraw & Collison, for plaintiff.

      Doosan, Scorsone & Trogan, for defendant.
   Baum, J.

Emil Hildebrandt died in 1965, some 2-1/2 years after being divorced. Henrietta Daugherty, his sister, was appointed administratrix of his estate. This lawsuit is a dispute between the administratrix and Mary Ann Skimson, the divorced wife of Emil Hildebrandt. The dispute originally concerned the proceeds of a group life insurance policy as well as the proceeds of a deferred profit-sharing plan, both of which the deceased had acquired through an arrangement offered by his employer, The "Wickes Corporation. Union Mutual Life Insurance Company, the remaining defendant, is the insurer under the group life insurance policy. As mere stakeholders in the controversy, Wickes and Union Mutual are willing to pay the insurance and profit-sharing proceeds to the person designated by the court.

The court below, in a case tried without a jury, awarded both the group life insurance proceeds in the approximate amount of $8,000 and the profit-sharing benefits in the approximate amount of $13,-000 to the administratrix.

Appellant, Mary Ann Sldmson, now concedes that the trial judge was correct in awarding the insurance proceeds to the administratrix. Appellant agrees that this result was required by PA 1939, No 220, § l. (CL 1948, § 552.101 [Stat Ann 1957 Rev § 25-.131]). The appellant contends, however, that the trial judge erred in awarding the profit-sharing benefits to the administratrix.

Emil Hildebrandt named Mary Ann Skimson (then Mary Ann Hildebrandt) the beneficiary of his insurance and profit-sharing benefits in 1961. She was then his wife. They were divorced about a year later.

The bill of complaint for divorce filed by the then Mary Ann Hildebrandt contained the following allegation :

“that the defendant in his own name owns * * # stocks in the Wickes Boiler Company.”

The profit-sharing plan consisted largely of such stock. Her complaint prayed, inter alia, “that the court may decree a property settlement and award to the plaintiff such property as the court deems just and equitable.”

The divorce suit was uncontested, and the final decree of divorce provided as follows:

“Property Settlement.
“It is further Ordered, Adjudged and Decreed that the title to any property of the parties * * * which is not herein specifically mentioned shall vest absolutely in either of the parties to this cause now having possession of the same and control thereof.
“It is further Ordered, Adjudged and Decreed that the Defendant, Emil J. Hildebrandt, shall pay to the plaintiff, Mary Ann Hildebrandt, the sum of $1 and that this provision shall be in lieu of her dower in the lands of her husband, and that he shall hereafter hold his remaining lands free, clear and discharged from any such dower right or claim and said provision shall be in full satisfaction of all claims that she has or may have in any property which he owns or may hereafter own, or which he has or may hereafter have any interest.
“Statutory Insurance Clause.
“It is further Ordered, Adjudged and Decreed, that neither the plaintiff, Mary Ann Hildebrandt, nor the defendant, Emil J. Hildebrandt, shall hereafter have any right, title or interest to the proceeds of any policy or contract of life insurance, retirement or annuity upon the life of the other, in which either was heretofore named or designated as beneficiary, or in which either became entitled by assignment or change of beneficiary during the marriage or in anticipation thereof, and that either of them shall be at liberty to change the beneficiary on any policy or contract of life insurance, retirement or annuity upon their respective lives or otherwise deal with or dispose of the same without the consent or permission of the other.”

Despite the dissolution of the marriage in 1962, Emil Hildebrandt did not change the provisions making Mary Ann the beneficiary of his group life insurance and profit-sharing plan. Thus Mary Ann was the last designated beneficiary of the profit-sharing plan at the time of Emil Hildebrandt’s death.

The appellant contends that the trial judge erred in applying the 1939 statute to the profit-sharing-plan and that under the case law of Michigan the proceeds of the plan should he awarded to Mary Ann Skims on as the last designated beneficiary.

The appellee offers two arguments for affirmance. First, appellee contends that an award of profit-sharing plan benefits to Hildebrandt’s estate is required by the 1939 statute. Second, appellee argues that Mary Ann is estopped from claiming the proceeds of the profit-sharing plan by the dower provisions of the divorce decree and by those provisions of the decree concerning proceeds of retirement.

We are constrained by our understanding of the precedents to agree with appellant.

To begin with, the 1939 statute does not apply. This is a statute which pertains to “life insurance, endowments or annuity upon the life of the husband.” The profit-sharing plan in question is none of these. The deferred profit-sharing plan was offered by The Wickes Corporation to its employees separate and distinct from a group life insurance plan. Included in the profit-sharing plan is a provision which makes benefits payable upon termination of employment, unrelated to death or retirement. Thus upon quitting or being fired an employee is entitled to the benefits of the profit-sharing plan. This feature deprives the plan of any resemblance to “life insurance” or “endowment or annuity upon the life of the husband.”

Our conclusion is reinforced by an examination of the insurance code of 1956, CLS 1961, §§ 500.100 through 500.8302 (Stat Ann 1957 Rev §§ 24.1100 through 24.18302). The profit-sharing plan is not within this statute.

The 1939 statute was in derogation of the common law and is to be strictly construed, Miller v. City of Detroit (1909), 156 Mich 630. The deferred profit-sharing plan is not “life insurance, endowment or annuity upon the life of the husband” within the meaning of the statute.

We turn to the appellee’s next argument, that the divorce decree was res judicata of Mary Ann Skim-son’s claim. Does the language in the divorce decree, which relates to dower or to retirement, estop Mary Ann Skimson from claiming the proceeds of Emil Hildebrandt’s profit-sharing plant We think not.

The divorce decree contains an express reference to “proceeds of any * * * contract of * * * retirement.” The appellee claims that this clause reaches the profit-sharing plan. Conceding the correctness of appellee’s claim, the dower clause cannot, also, be fairly held to apply to the profit-sharing plan. Taking into account all of the provisions of the decree which relate to property, there is no basis for construing the provision in lieu of dower as applicable to the benefits of the profit-sharing plan. Moreover, as pointed out later, even if the dower clause applies to the profit-sharing plan, the result would not be different.

We agree with appellee that the profit-sharing plan can be considered “proceeds of any * * * contract of * * * retirement” within the meaning of the divorce decree. Even so, the appellant is entitled to the proceeds of the profit-sharing plan. The provision of the divorce decree concerning proceeds of retirement simply vested Emil Hildebrandt with complete ownership of the profit-sharing plan and divested his then wife of any claim upon it. The divorce decree expressly stated that each party was “at liberty to change the beneficiary on any * * # contract of * * * retirement * * * or otherwise deal with or dispose of the same without the consent or permission of the other.”

Another provision of the decree, covering property not specifically mentioned, had a like effect. It simply vested such, property absolutely in the spouse having possession and control of it. Similarly, even if the dower provision were applicable to the profit-sharing plan, its effect would simply be to vest in Emil Hildebrandt all rights to the profit-sharing plan free and clear of the claims of Mary Ann.

Thus the profit-sharing plan became Emil Hildebrandt’s property to do with as he pleased. He could have changed beneficiaries free and clear of any claim by his former spouse. However, the decree left him free to give his profit-sharing benefits to Mary Ann if he so desired. The point is that he took no step to give his profit-sharing benefits to anyone else. We agree that pursuant to the divorce decree, the profit-sharing plan became Hildebrandt’s sole property. The issue is what did he do with this property after the divorce.

Notice for a moment the effect of the appellee’s estoppel or res judicata argument upon a man who wants his divorced wife to have the benefits of his profit-sharing plan. Should a divorce decree like the one before us have the effect of frustrating such an intention? Of course not. How, then, would he accomplish such an objective after divorce? Should our judge-made law require that the divorced man execute a new beneficiary provision keeping his former wife as the named beneficiary? One can hardly think of anything more offensive to common sense than a requirement that he must execute another beneficiary provision in order to retain the same beneficiary.

We conclude that the language of the divorce decree neither prevented Hildebrandt from leaving the benefits of the profit-sharing plan to Mary Ann nor required him to execute a new beneficiary clause in order to do so.

The profit-sharing plan contained provisions for changing beneficiaries. Hildebrandt had plenty of' time after the divorce in which to do so. He well knew how, having changed beneficiaries many times before in his life. We see nothing in the statutes, in the divorce decree, or in his conduct to overcome the clear, written direction he gave his employer in 1961 that upon his death, Mary Ann should have his profit-sharing benefits. By doing nothing after the divorce, Hildebrandt gave the proceeds of his profit-sharing plan to Mary Ann. This conclusion is in line with Michigan Supreme Court decisions, which we turn to next.

The provision in the divorce statutes concerning life insurance, endowment, or annuity was added to our laws by an amendment enacted in 1939. It was enacted to change the result of a long line of judicial decisions which held that a divorced wife was entitled to life insurance proceeds where she remained the named beneficiary.

Since the statute does not apply, we are left to decide this case under the authorities established by judicial decision. No cases precisely in point have been called to our attention by counsel; nor has our own research turned up any cases dealing with a profit-sharing plan having the features of this one. However, the tripartite, contractual nature of the instant profit-sharing plan is so much like a life insurance contract that insurance cases decided under the common law are applicable by analogy.

In those life insurance cases to which the 1939 statute does not apply, the Michigan Supreme Court has held, without deviation, that absent a change in beneficiary, executed substantially in accordance with the provisions of the insurance contract, a divorced spouse who is the named beneficiary takes the insurance proceeds notwithstanding the divorce. Further, the Court has held that use of the word “wife” in the beneficiary designation is descriptive only, unless the context clearly indicates otherwise. so that termination of the beneficiary’s status as wife does not destroy her right to insurance proceeds.. Ladies’ Auxiliary of Ancient Order of Hibernians v. Flanigan (1916), 190 Mich 675; Ancient Order of Hibernians v. Mahon (1922), 221 Mich 213; Guarantee Fund Life Association v. Willet (1927), 241 Mich 132; Hudson v. Hudson (1961), 363 Mich 23.

Appellee argues that in these cases there is evidence that the insured actually intended that his spouse should remain the beneficiary after the divorce. "While we don’t read these cases as resting upon any such intention,- there is no shortage of evidence that Emil Hildebrandt actually intended'that Mary Ann should remain the beneficiary of his profit-sharing plan after the divorce.

One such indication is his failure to change beneficiaries. Many times in the past he had changed-beneficiaries. He had even, once before, removed a divorced wife as beneficiary. The undisputed evidence shows that Hildebrandt changed the beneficiary of his profit-sharing plan from his mother to his. first wife, Linda, in 1957. In 1958, after divorcing his first wife, Linda, he changed the beneficiary of his life insurance from Linda to his sister, Henrietta Daugherty. In the same year he substituted his.-, sister for his divorced first wife as a beneficiary of’ his profit-sharing plan. In 1960 he changed his-profit-sharing plan beneficiary from his sister to his ’ mother. Finally in 1961 he changed the beneficiary-provisions of his insurance and profit-sharing plan so as to name his second wife, Mary Ann. When such a sophisticated and inveterate changer of beneficiaries makes no change, his conduct is more apt to be consistent with his actual intent than with procrastination or any other explanation.

Moreover, Emil Hildebrandt did not contest Mary Ann’s allegations that he was entirely at fault in the demise of the short-lived marriage by reason of hi? excessive drinking and abusive conduct. During the marriage he had lived in her home, rent free. Mary Ann had worked throughout the marriage. She received no alimony. The only property of his which she got was $1 in lieu of dower. Under all the circumstances, his failure to change beneficiaries after the divorce is completely consistent with a desire on his part to make amends to his former wife.

While such considerations, concerning what may have been in Hildebrant’s mind, suggest that our decision does no violence to his inner intention, our decision does not rest on any speculation concerning such inner or unexpressed intention. Our decision rests by analogy on the authorities above, which, as we read them, render irrelevant any such inner intention of the insured if it is not reflected in a change of beneficiary executed substantially in accordance ivith the requirements of the insurance contract.

The cases cited by the appellee are inapposite. Our case is not like Morris v. Protected Home Circle of Sharon, Pa. (1928), 243 Mich 542, \vherein, to be eligible as beneficiary, a person must, by statute and by the insurance contract, be the wife of the insured. Nor is our case one in which the insured lost the right to change the beneficiary as did the settlor in MacDonald v. Conservative Life Insurance Company of Wheeling, West Virginia (1940), 292 Mich 182. The case of Ester v. Prudential Insurance Company of America (1941), 298 Mich 330, did not involve divorce, and in any event the life insurance proceeds Avere aAvarded to the last-designated beneficiary despite the fact that the insured’s relationship with her had terminated long before his death. In Chrysler Corporation v. Hardwick (1941), 299 Mich 696, quite unlike the instant case, it was not entirely clear which of two Daisy Hannahs the insured had in mind as his last-designated beneficiary. In Lansing v. Haynes (1893), 95 Mich 16, it was held that a dD vorce, in which, a property settlement had been made while the divorce suit was pending, had the effect of revoking a pre-existing will. This holding was in accord with the majority view then prevailing. Leach, Cases on Wills (2d ed, 1947), p 111; 2 Page on Wills (Bowe-Parker Rev, 1960), § 21.101, p 521 et seq. Onr case is not a will case. It involves a tripartite profit-sharing plan which is much more like, a life insurance contract than a will. . - .

■ We conclude, first, that the 1939 statute is not- applicable to Emil Hildebrandt’s profit-sharing plan. Second, we conclude that where a written profit-sharing plan provides for a change of beneficiaries and the participant therein is free to do so, a change of beneficiary can be accomplished only by procedures which are in substantial compliance with the provisions of the plan itself. This is the rule, at least, for those situations where there are no obstacles or impediments which make substantial compliance impossible. Dogariu v. Dogariu (1943), 306 Mich 392; Aetna Life Ins. Co. v. Mallory (1939), 291 Mich 701. The result which must follow is an award of profit-sharing benefits to the appellant.

For these reasons we reverse and remand this cause for entry of a judgment in accordance with this opinion.

Costs to the appellant.

Lesinski, C. J., and Quinn, J., concurred.

       The 1939 statute provides:
      “Hereafter every decree of divorce shall determine all rights of the wife in and to the proceeds of any policy or contract of life insurance, endowment or annuity, upon the life of the husband in which she was named or designated as beneficiary, or to which she became entitled by assignment or change of beneficiary during the marriage or in anticipation thereof, whether such contract or policy was heretofore or shall hereafter be written or become effective, and unless otherwise ordered in said decree such policy or contract shall thereupon become and be payable to the estate of the husband or to such named beneficiary as he shall affirmatively designate,”

         See the definitions of life insurance, endowment and annuity in Oouch on Insurance (Anderson ed, 1959), § 1:18, p 44, § 1:43, p 61, § 1:68, p 79.


text:
    PEOPLE v. LoPRESTO.
    1. Criminal Law — New Trial — Newly Discovered Evidence.
    Newly discovered evidence may be the basis for granting a new trial in a prosecution for crime if it is shown that the evidence, and not merely its materiality, be newly discovered; that the evidence be not merely cumulative; that the moving party could not with reasonable diligence have produced the evidence at trial; and that it be such as to render probable a different result on retrial.
    2. Same — New Trial — Newly Discovered Evidence.
    Newly discovered evidence that a prosecution witness testified that he had one conviction for drunk driving when actually he had two other convictions of assault, that he made a post-trial affidavit which was diametrically opposed to his trial testimony of who were the original aggressors in an affray during a labor dispute, that another witness testified falsely regarding his age, education, employment record, and weapons-carrying practices, conveying the impression he had attended high school, had a stable employment record, and never carried weapons, when in fact all this was false, that an eyewitness was not indorsed as a res gestae witness, and that 3 persons gave a posttrial affidavit tending to show that the first physical assault with force sufficient to kill or inflict great bodily harm was not made by defendant, held, sufficient to warrant the granting of a new trial.
    3. Judges — Private Investigation' — Discretion op Court — New Trial.
    Trial judge exceeded his discretionary power in conducting a private investigation which influenced Ms determination to deny a new trial in prosecution arising from an affray in a labor dispute.
    Beferences for Points in Headnotes
    [1] 39 Am Jur, New Trial §§ 156-159, 164.
    [2] 39 Am Jur, New Trial §§ 156, 164, 166-176.
    [31 39 Am Jur, New Trial §§ 201, 202.

      Appeal from Hillsdale; McIntyre (Robert W.), J.
    Submitted Division 2 June 7, 1967, at Lansing.
    (Docket No. 1,410.)
    Decided December 8, 1967.
    Angelo LoPresto was convicted of felonious assault. Defendant appeals.
    Reversed and remanded.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harvey W. Moes, Special Prosecuting Attorney, for the people.

      Zwerdling, Miller, Klimist & Maurer, for defendant.
   Baum, J.

Defendant was charged with assault with intent to murder and was convicted by a jury of felonious assault. He moved for a new trial on the ground of newly discovered evidence. He claims that the trial judge erred in denying this motion and submits seven other assignments of error. Since we conclude that newly discovered evidence warrants a new trial, it will not be necessary to consider the other assignments of error.

There is a lively controversy over the facts in this case. We shall try to separate those which are in dispute from those which are not.

It is clear that Lewis Scott suffered a gunshot wound of the leg in a three-cornered affray. One group of participants in the affray consisted of Scott, Duane Butler, and Edward Earl Brantley. These three men were employed by a private police company which was furnishing services to the strikebound Hillsdale plant of Essex Wire Company. At the time of the altercation, the three plant guards were in an auto attempting to escort another vehicle which was carrying two temporary workers.

The second group participating in the affray consisted of Bertas Stemen and Robert Hawley. Stemen was the driver and Hawley a passenger in a small jeep-like track which was in a procession of a dozen or so ears. The entire anto caravan was harassing the plant guards in the latter’s effort to escort and protect the two temporary workers. The defendant offers the following explanation for the harassment. The temporary workers were believed by strike sympathizers to be imported “scabs” who had committed an unprovoked knife attack upon a local citizen. Joseph LoPresto, the defendant’s brother, had tried to have the temporary workers arrested, but local authorities refused to do so without a warrant. The strike sympathizers were upset over this and the harassment ensued.

The third group of participants in the affray consisted of the defendant, Angelo LoPresto; his brother, Joseph; and Joseph’s 15-year-old son, Tony.

Which of these three groups was the original aggressor was disputed in the evidence and was one of the critical questions before the jury.

The defendant denied firing the shot which injured Scott. The gist of the testimony given-by the defendant, Angelo LoPresto, and his brother, Joseph, was that Joseph LoPresto fired the shot in legitimate defense of Angelo and young Tony to protect them from grave danger. On the other hand, testimony from certain of the people’s witnesses supported the theory that the defendant fired the shot in question.

The melee started with an exchange of violence between the plant guards on one side and Stemen and Hawley on the other. It was hotly disputed at the trial, however, which of the two groups was the aggressor. There was also a dispute in the testimony concerning which of the five mén in this initial altercation was the first to use potentially deadly force.

There appears to be no dispute that the LoPrestos went to the aid of Stemen and Hawley. There is a dispute in the evidence, however, whether this amounted to the LoPrestos’ joining in the aggression of their friends, or was in fact the legitimate use of defensive force to protect their companions.

Concerning events which followed the LoPrestos’ entry into the affray, there was a controversy as to whether persons in the LoPresto group or in the plant guard group were the first to employ force which appeared to be capable of killing or inflicting great bodily harm.

There was evidence to support the view that the purpose of the shooting was to protect the life of young Tony. On the other hand, there was evidence to support the view that the shooting was with malice aforethought — a product of hatred and racial bigotry. Whether the shooting represented defensive or aggressive force was the principal question for the jury.

The court instructed the jury on self-defense, defense of relatives and defense of companions. Under these instructions, the jury must have found that the LoPresto group were aggressors or were seriously at fault in the melee.

We turn now to the defendant’s claim that newly discovered evidence warrants a new trial. The defendant relies on five separate items of evidence. First, the defendant discovered that Duane Butler, one of the plant guards, lied in answering the question, whether he had ever been arrested or convicted of any crime. Butler answered, “I was convicted of a drunk driving charge once, sir.” (Emphasis added.) The full context of Butler’s testimony on cross-examination makes it clear that he conveyed to the jury the impression that this was his oniy conviction. The newly found evidence shows that in addition to the drunk driving conviction, Butler had, to his knowledge, twice been arrested and convicted of assault. There is also newly discovered evidence of a third assaultive offense by Butler, but apparently he had not yet been arrested for it at the time of trial.

The second item of the defendant’s allegedly newly discovered evidence consists of an affidavit from Butler. On the question of who committed the first serious violence, Butler’s affidavit is diametrically opposed to his trial testimony. He testified at trial that Stemen and Hawley were the initial aggressors, aided and abetted by the three LoPrestos. The tenor of Butler’s posttrial affidavit is to make Brantley the aggressor in the sense of being the first to resort to physical force sufficient to engender a reasonable and honest belief that it was capable of inflicting serious bodily harm.

The third portion of the allegedly newly discovered evidence consists of information concerning the background of Edward Earl Brantley. The new evidence indicates that Brantley had testified falsely respecting his age, his educational background, his employment record and his weapons-carrying practices. Brantley was one of three plant guards who participated in the physical encounter. There is no question that he exchanged physical force with Ste-men and Hawley. The evidence is conflicting as to whether he knifed Stemen. Brantley’s trial testimony flatly, clearly, and unreservedly made Stemen and Hawley the aggressors and the LoPrestos, aiders and abettors in such aggression. By his testimony, Brantley and his fellow plant guards were without fault in the melee.

At trial Brantley testified that he attended a Detroit high school and was active in extracurricular activities. The newly discovered evidence shows that he never attended high school; that when ho was in the seventh grade he was assigned to an ungraded class in the Moore school for boys; that his formal education ended less than two years later when he left the Moore school; that his testimony regarding extracurricular activities was a complete fabrication.

His testimony at trial established a stable and good work record in desirable employment. The newly discovered evidence, on the other hand, shows an unsatisfactory work record. It was revealed after trial, contrary to his testimony, that Brantley had never worked for the Detroit department of parks and recreation; that he hardly had a week’s work, all told, for Star Florists, contrary to his testimony of long enduring employment; that he worked for Singleton Private Police for less than two months rather than the nine months to which he testified; and that he was fired by two different employers, Ford Motor Company and Singleton Private Police, for work-related misconduct which was in direct conflict with his testimony at trial.

At trial, he testified that he never carried weapons. The newly discovered evidence demonstrates otherwise.

The fourth item of allegedly newly found evidence is the statement of one Joe Cisneros. Cisneros was not indorsed as a res gestae witness, although he was at the scene of the shooting. His statement reveals that he did not observe the aggressive conduct on the part of Stemen, Hawley and the Lo-Prestos which was described by prosecution witnesses. His statement also indicates that he did not observe one Merle Gratz at the scene. Gratz was a key prosecution witness at the trial. At that time, the defendant was unaware of the existence of Cisneros and had no idea of Cisneros’ knowledge of res gestae facts.

The last item of newly discovered evidence consists of an affidavit subscribed by William Benson, Dannie Byard, and John Miller. They were not indorsed on the information. Their affidavit tends to show that Brantley was armed with a knife; that he probably cut Stemen; that he had earlier threatened “to get” the LoPrestos in profane language and in a provocative manner; that in doing so, Brantley brandished a switchblade or hunting knife from his car window; that Lewis Scott, shortly before the shooting, drove the plant guard’s car at a high rate of speed at the LoPresto station wagon almost striking the LoPresto car. These affiants did not see the shooting itself, but saw events so close in time that they lend credence to the defendant’s claim that the plant guards were the aggressors.

The Benson-Byard-Miller affidavit has the tendency of showing that the first physical assault with force sufficient to kill or inflict great bodily harm was an assault by motor vehicle, driven by plant guard Scott upon the auto occupied by the Lo-Prestos.

We turn now to the question of whether the trial judge erred in denying the defendant’s motion for a new trial. Tests for measuring the sufficiency of newly' discovered evidence were recently stated in the cases of People v. Clark (1961), 363 Mich 643, and People v. Ake (1961), 362 Mich 134. These cases hold that for a new trial four requirements must be met. First, the substance of the evidence, and not merely its materiality, must have been discovered after the trial. Second, it must be shown that the new evidence is not merely cumulative. Third, it must be shown that the moving party could not with reasonable diligence have produced the evidence in question at trial. Fourth, the newly discovered evidence must be such as to render probable a different result on retrial.

All of the evidence upon which the defendant relies meets the first test of newness in discovery. At the time of the trial, defendant and his lawyer were not aware of any of the five items of evidence.

With respect to the issue of the cumulative nature of the evidence, the following observations appear to be in order. The newly found evidence which tends to discredit the testimony of Butler and the testimony of Brantley is not merely cumulative. Indeed, this newly discovered evidence of Butler’s criminal record and Brantley’s school and work record and weapons-earrying habits does not resemble any of the evidence presented in the trial of the case.

Butler’s posttrial affidavit is unusual and noteworthy in that it consists of evidence from an eyewitness who was, at the time of the shooting and at the time of the trial, highly antagonistic to the defendant. The affidavit is unlike any other evidence in the case in that it presents corroboration of defendant’s witnesses by a witness in the “enemy camp.” Such unique evidence regarding the first use of dangerous force cannot be characterized as merely cumulative.

The factual information, newly discovered from Cisneros, is not merely cumulative. Cisneros is the only disinterested res gestae witness whose testimony tends to support the defendant’s version of the facts. There is no other evidence like it in the case.

While there is a closer question respecting the cumulative nature of the affidavit executed by Benson, Byard, and Miller, on balance their affidavit would not appear to be merely cumulative. It deals with an incident which occurred shortly before the shooting and one which is not testified to in any considerable detail by other witnesses in the case.

Turning then to the third requirement, is the new evidence such that the moving party could not with reasonable diligence have discovered it before trial?

Prior to trial, the defendant’s lawyer was unable to get information concerning Butler’s criminal record because he did not have correct information concerning Butler’s residence, places of employment, and birth date. The prosecutor had, in the best of faith, given defense counsel an incorrect address as Butler’s residence. This, rather than any want of diligence, interfered with and quite probably defeated pretrial efforts by the defendant to obtain Butler’s arrest record.

With respect to Brantley’s background, the exercise of reasonable diligence does not require an exhaustive pretrial investigation into the school, work and birth records of all prosecution witnesses or an investigation into their weapons-carrying propensities. This could be a very costly and time-consuming chore. It would be unfair to impose it upon defendants. The people have some obligation to instruct witnesses to give honest testimony. Defendants need not anticipate that witnesses will lie about such background information as school, work, and birth records.

Cisneros was not indorsed on the information as a res gestae witness, although he should have been since he was present at the time and place of the shooting. At the time of trial, the defendant and his attorney had no idea that Cisneros had been at the scene. His existence was not revealed by thorough investigative efforts. The fact that Cisneros was at the scene was revealed quite by happenstance when Benson, Byard, and Miller came forward with this information after the trial. The defendant’s failure to find Cisneros and plumb his knowledge cannot be attributed to any lack of diligence.

Much the same can be said respecting Benson, Byard, and Miller. As in the case of Cisneros, the people did not indorse Benson, Byard or Miller on the information. It is not claimed that they should have been so indorsed since they did not observe the shooting itself. Nonindorsement is relevant only to show that the criminal information neither indicated the existence of Benson, Byard, and Miller nor suggested that they had any material knowledge.

It would appear that the existence of Benson, Byard, and Miller and their knowledge of events was not revealed by a reasonable investigation prior to trial. Benson, Byard and Miller came forward voluntarily, only after the trial was over.

Nor can a failure to obtain, prior to trial, the information contained in Butler’s affidavit be attributed to lack of diligence. It is to be noted that the defendant took the extraordinary steps of retaining a reputable private investigative agency and of seeking pretrial discovery in a criminal case. The defendant’s motions for discovery were frustrated by a ruling of the trial court which is not here in question, and the prosecutor contributed to the defendant’s difficulties by innocently giving defense counsel an incorrect address for Butler.

We conclude that despite unusual diligence on the part of the defendant the newly discovered evidence was not turned up prior to trial.

We turn to the remaining test: the probability that the newly discovered evidence would bring about a different result upon retrial.

Butler was an important witness at trial. His testimony occupies some 23 pages of the trial transcript. He purported to have observed, and he described from the witness stand, many critical occurrences. Butler’s trial testimony tended to show that the LoPrestos, allied with Stemen and Hawley, were the aggressors in the affray.

In a hotly disputed case in which it was important to know which of the three groups was the first to resort to physical violence, the credibility of witness Butler was of great importance. By his deliberately false testimony concerning his criminal record he deprived the jury of information which they could legitimately use in judging his credibility. A different appraisal of his worthiness of belief might well lead to a different result in a new trial. United States v. Gordon (DC, 1965), 246 F Supp 522; United States v. Senft (ED NY 1921), 274 F 629. Without a new trial, the verdict would be forever beclouded by the possibility that the jury unwittingly acted upon false testimony of an undisclosed perjurer and convict.

Brantley was on the witness stand longer than any other witness for the prosecution. His testimony occupies 46 pages of the trial transcript. His testimony was extremely important. He purported to have seen, and he described from the witness stand many of the important events of the affray. The newly discovered evidence, concerning his school and work record, and weapons-carrying practices, strongly discredits his testimony. We note that the sources of the newly discovered evidence would appear to be reliable. They are the records of the Detroit school system; the records of the Detroit department of parks and recreation; Ford Motor Company personnel records and the records of other of Brantley’s former employers. Fresh evidence of this sort, particularly when combined with the new evidence contained in Butler’s affidavit, might well create doubt in the jury’s mind whether the defendant was in fact an aggressor.

Butler’s affidavit presents evidence that the first serious violence, capable of killing or maiming came from Brantley. Butler’s posttrial affidavit attributes to Brantley a dangerous escalation of force. It tends to blame Brantley for responding to a mere annoyance with potentially deadly violence. It tends to support the claim that the force used by the Lo-Prestos was justified. "While there is some question as to the reliability of Butler’s affidavit,, we are not prepared to reject it as wholly unreliable. It is, after all, reinforced by the Benson-Byard-Miller affidavit and by Cisneros’ memory of the event. Such new evidence might well affect the result on a retrial.

Cisneros worked as a newspaper reporter at the time of the affray. He is apparently a disinterested witness and an experienced observer. His knowledge of the events is quite inconsistent with the account rendered at the trial by the only other apparently neutral witness, Merle Grratz.

Indeed, it creates some doubt as to whether Grratz was present and in a position to observe the events which he related, so unhestitatingly, from the witness stand. Cisneros’ knowledge of the event is in such sharp contrast with the testimony of Grratz that it- tends to cast doubt upon and neutralize Q-ratz’s strongly incriminatory testimony. Cisneros’ testimony has a tendency to create reasonable doubt as to whether the first violent physical aggression came from Stemen and Hawley or any of the Lo-Prestos. In a case where a reasonable doubt as to a material element of a crime brings acquittal, the testimony of Cisneros could be pivotal.

The Benson-Byard-Miller affidavit, standing alone, is not as strong as the other freshly found evidence. Coming as it does from strike sympathizers who apparently participated in the caravan which harassed the plant guards, the reliability of the Benson-Byard-Miller affidavit is certainly open to doubt. The affidavit, however, is corroborated by an affidavit of William and Jane E. Jack, which was offered in connection with the defendant’s motion for a new trial. The Jack affidavit, like the BensonByard-Miller affidavit, tends to show that the first serious assault Was made by the guards’ auto upon the auto in which the defendant, his brother, and his nephew were passengers.

When a person is shot in a riotous affray such as this one, criminal liability depends heavily upon whether the person doing the shooting was the aggressor. Assuming that the jury followed the court’s instructions, the jury must have found that the Lo-Prestos were aggressors or were seriously at fault in the affray. The five items of newly discovered evidence tend to show otherwise. While we cannot say with certainty that on retrial the new evidence would bring an acquittal, we believe that such an acquittal is a distinct probability.

We come now to another reason why the decision denying a new trial must be reversed. Incidentally, this reason affords a possible explanation for the difference between our conclusions concerning the quality of the new evidence and those of the learned trial judge. This case took two weeks to try. The recorded remarks of both lawyers show that the trial was conducted with scrupulous fairness by an able judge. Unfortunately, his conclusions on the motion for a new trial seem to rest, at least in part, on the judge’s private investigation. In ruling on this motion he said, inter alia,

“I have given very careful consideration to the arguments and briefs presented in support of your motion for a new trial; and I have even gone afield and did some investigating on my own, considering some of the witnesses whose names have been mentioned and the court is not convinced that the testimony of these witnesses would necessarily have changed the verdict of the jury.”

Undoubtedly the judge sought information off the record in the best of faith and out of a conscientious desire to find the truth. However, this would not keep his investigation from being an abuse of discretion. Such a private investigation by a court in a criminal case (except in connection with imposing or relieving a sentence) has been held to thwart the defendant’s right to due process of law. In People v. Cooper (1947), 398 Ill 468, 4, 886), a criminal case, it was held that:

“any private investigation by a court pending a motion for a new trial constitutes a denial to the defendant of * * * due process of law.”

In People v. Wallenberg (1962), 24 Ill 2d 350, 354 (181 NE2d 143, 145), the Illinois supreme court held that

“A determination made by the * * * judge based upon a private investigation * * * or * * * private knowledge * * * constitutes a denial of due process.”

If the judge can be swayed against a defendant in a criminal case by information obtained outside the courtroom, the defendant and his lawyer have no opportunity to know what this information is, and no chance to test, meet, explain, or overcome it.

Where a judge’s private investigation results in a decision convicting or upholding the conviction of a defendant, “Courts have invariably held it to be reversible error [if] it may have partially influenced decision or judgment.” Gordon v. United States (CA. 6, 1949), 178 F2d 896, 901.

We need not go so far in this case as to hold that the judge’s private investigation deprived the appellant of his constitutional rights. We merely hold that such conduct on the part of the trial judge exceeded his discretionary powers.

For all of the above reasons we conclude that the trial court erred in denying the motion for a new trial.

We need not add that the existence of a strike is not a license to use force. Laws against violence are not suspended during labor disputes. No matter how bitter the strife, violence cannot be tolerated by the community and it makes no difference which side initiates it. The issue in this case is not whether the law will yield a little in view of the ongoing industrial warfare. It will not. The issue in this case is whether the newly discovered evidence warrants a new trial under the standards established by the Michigan Supreme Court for all convicted defendants. We believe it does.

The decision of the trial court denying the defendant’s motion for a new trial is reversed and the cause remanded for a new trial.

Lesinski, C. J., and Quinn, J., concurred.

       CEL 1948, § 750.83 (Stat Ann 1962 Rev § 28.278).

       CL 1948, § 750.82 (Stat Ann 1962 Rev § 28.277).

       For a similar situation and result see United States v. Gordon (DC, 1965), 246 F Supp 522.

       Accord: People v. McGeoghegan (1927), 325 Ill 337 (156 NE 378).

        People v. Ake and People v. Clark, supra.


author: Gilmore, J.

text:
    PEOPLE v. TAYLOR.
    1. Criminal Law — Withdrawal op Plea op Guilty — Discretion op Court.
    Eefusal by trial court to .allow defendant to withdraw a plea of guilty, in a ease whore defendant was arrested without a warrant, questioned for 2 days before being arraigned and charged with breaking and entering with intent to commit larceny, stood mute before circuit court, 3 days later withdrew plea of not guilty entered for him, pled guilty, was sentenced, and 8 months later petitioned to withdraw plea of guilty, held, abuse of discretion, where trial court failed to advise defendant what punishment might follow his conviction by plea of guilty, and failed to determine that the plea was voluntary (GCE 1963, 785.3[2]).
    2. Same — Acceptance op Plea op Guilty — Advice as to Eights.
    A plea of guilty cannot be accepted in any ease where defendant is charged with a felony until he is advised of his right to counsel, given an opportunity to request counsel, and counsel is appointed if lie requests counsel and is indigent (GCE 1963, 785.3 [2]).
    3. Same — Consultation with Counsel — Acceptance op Plea.
    Trial court cannot accept a plea of guilty by a defendant charged ■with felony until counsel has been consulted, unless the record clearly show's defendant intelligently waived counsel (GCE 1963, 785.3 [2]).
    Beferences for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 504, 505.
    [2] 21 Am Jur 2d, Criminal Law §§ 486, 487, 492.
    [3] 21 Am Jur 2d, Criminal Law §§ 488, 491, 492.
    [4] 21 Am Jur 2d, Criminal Law § § 484-492.

      4. Same — Felony—Minimum Requirements for Acceptance of Plea of Guilty.
    Minimum requirements whieh must henceforth be met before a trial eourt can aecept a plea of guilty in a felony ease, regardless of whether defendant is represented by counsel, are (1) a verbatim record must be made of entire proceeding, (2) defendant must be informed of the nature of the accusation, in language he may be reasonably expected to comprehend, and the information must be read to him at this time unless he has waived the reading, (3) defendant must be advised of the consequence of his plea of guilty, that by so pleading he waives the right to trial by jury or trial judge, (4) the eourt must determine if a confession preceded the plea of guilty, if it was the reason for the guilty plea, and advise defendant ho is entitled to a hearing to determine if the confession was freely made, and (5) the eourt must determine that the plea was made voluntarily without any promises or threats, advise defendant he has no obligation to plead guilty, that by pleading guilty he subjects himself to the maximum and minimum sentences, and (6) by interrogation of defendant or narration by him, the court must determine that defendant committed the crime to whieh he has pleaded guilty (GCR 1963, 785.3 [2]).
    Appeal from Jackson; Dalton (John C.), J.
    Submitted Division 2 May 4, 1967, at Lansing.
    (Docket No. 2,757.)
    Decided February 1, 1968.
    Leave to appeal granted by Supreme Court February 9, 1968.
    John Robert Taylor was convicted of breaking and entering with intent to commit a larceny. Defendant appeals.
    Reversed and remanded.

      Frank J. Kelley, Attorney General, Robert A. Derengoslci, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and Vincent F. Stapley, Assistant Prosecuting Attorney, for the people.

      L. Russell Heuman, for defendant on appeal.
   Gilmore, J.

On April 17, 1965, defendant was arrested without a warrant and was held by the police without a charge being placed ag’ainst him; he was questioned at intervals until April 19, 1965, when he was charged with breaking and entering of a business establishment with intent to commit a larceny therein and arraigned the same day before a magistrate on such charge. He waived preliminary examination and was bound over to circuit court. On arraignment there April 20, 1965, he stood mute and a plea of not guilty was entered. On April 23, 1965, this plea was withdrawn and a guilty plea was accepted. On May 14, 1965, he was sentenced to prison for a minimum of 29 months and a maximum of 10 years. On January 11, 1966, acting in propria persona, defendant filed a petition to withdraw plea of guilty, set aside conviction and grant a new trial. That same day counsel was appointed for defendant, and this was the first time he had legal representation, although he waived appointment of counsel at arraignment in circuit court. Defendant’s petition was denied May 24, 1966, and he appeals.

Although defendant raises and argues several issues on appeal, some of which raise questions as to the voluntariness of the plea, we believe one issue is dispositive thereof, and it questions the compliance in the trial court with the requirements of GrCB. 1963, 785.3(2). At no time did the trial judge advise defendant what .punishment might follow his conviction by plea of guilty. Our recent decision in People v. Charles A. White (1967), 8 Mich App 220, holds that such advice bears no relation to the phrase “consequence of his plea,” but such advice is involved in the determination required by 785.3-(2), supra, that the plea was “freely, understandingly and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency.” ' The record before us does not satisfactorily disclose that defendant’s plea was so made, and we hold that it was an abuse of discretion to deny his petition to withdraw plea, set aside conviction and for a new trial.

Although we have statutory standards for accepting pleas of guilty, (CL 1948, § 768.35 [Stat Ann 1954 Rev § 28.1058]), and have had such standards since 1875, and although we have had more specific standards by rule since 1947, (Court Rule No 35A [1945]), and although much has been written by the Supreme Court and this Court with respect to what a trial court must do to satisfy these standards in accepting pleas of guilty, we have found no case which fully interprets all of such standards. In view of the many appeals reaching this Court because of alleged noncompliance by the trial courts with these requirements, we believe a specification by this Court of what it considers minimal compliance therewith and a suggested procedure for attaining such compliance will be a service to the trial bench and the bar.

It must be emphasized that before a plea of guilty can be accepted in any case where a defendant is charged with a felony, the defendant must be advised of his right to counsel, afforded an opportunity to request one, and must be provided with a lawyer, if he is indigent and desires to have counsel. While it is true that a defendant can knowingly and intelligently waive counsel and plead without counsel, unless the record is absolutely clear that the defendant waives counsel, it is incumbent upon the trial court to adjourn the matter and not accept a plea of guilty until counsel has had an opportunity to consult with his client.

Henceforth in all cases pending trial at the time of the handing down of this opinion, the following are minimum requirements for accepting a plea of guilty in felony cases whether or not defendant has counsel:

First, a verbatim record of the entire proceedings shall be made.

Second, the court must inform the defendant of the nature of the accusation. In doing so the court should avoid police jargon or catch titles and inform the defendant of the nature of the accusation in terms that a layman should comprehend under the circumstances. Additionally, the court shall determine whether the information has been read to the defendant and read or cause the same to be read to him unless he expressly waives the reading thereof.

Third, the court must advise the defendant of the consequence of a plea of guilty. This means the court must inform him that he waives the right to trial by jury or the judge without jury and all the incidents thereof.

Fourth, the court shall inquire as to whether the defendant has made any confession to the police prior to the time of his plea of guilty and ascertain if the confession is a reason for making the plea. If it appears that the confession is a basis for the plea, before accepting the plea the court shall advise the defendant that he is entitled to a Walker type evidentiary hearing to ascertain if the confession was freely, voluntarily and constitutionally made. In applicable cases this hearing shall be had unless expressly waived.

Fifth, the court must ascertain before accepting the plea that the plea has been freely, understandingly and voluntarily made, without any undue influence, compulsion, duress or promise of leniency. This means that the court must determine whether or not any promises of any kind have been made by anyone as to the court’s disposition of the case, and if such were made, refuse the plea. It must advise the defendant that no promises can be made as to the disposition. Further, the court must satisfy itself on the record that the defendant understands that he has no obligation to plead guilty and that he subjects himself to anything up to the maximum punishment by doing so. The court must advise defendant of the maximum sentence that can be- imposed and the minimum sentence if there is a mandatory minimum. The court shall ascertain if the defendant is on probation or parole, and inform him of the possible consequence of probation or parole violation.

If at this point the court is satisfied that the defendant thoroughly understands the consequence of his plea, that he made the plea freely, understandingly and voluntarily and without any promise of leniency, or any undue influence, compulsion or duress, the court shall determine from a narration by the defendant or an interrogation of him that the defendant actually committed the crime to which he has pleaded guilty. In other words, the defendant should be asked to state on the record what he did and the court must satisfy itself from the defendant’s narrative- or responses that the defendant actually is guilty of all the elements of the crime with which he is charged. Then and only then can the court accept the plea of guilty.

The following is a suggested form of interrogation. It is emphasized that the narration is not mandatory but is merely a guide to the trial bench.

If the defendant is not represented by counsel the court must advise the defendant before he is required to plead that he is entitled to a trial by jury and that he is entitled to counsel. The court must advise the defendant that if he is financially unable to provide counsel that the court will provide counsel if he requests. If the defendant waives his right to trial by jury and states he does not want counsel, the court must make a clear determination that the defendant voluntarily and understandingly waives his right to counsel and trial by jury. At the time of the plea, whether counsel is present or not, the following is a suggested form:

1. Do you understand that you would have the right to have your attorney with you throughout the trial, and if you could not afford an attorney, the county will provide you with one at public expense?

2. Do you understand you have a right to trial by jury or by the court without a jury of this case, and at that trial you would be presumed innocent, until proved guilty beyond a reasonable doubt?

3. What is your name and age? How far did you go in school?

4. You are charged with (here state offense). Has the information been read to you? Do you wish to have it read or do you waive the reading thereof? How do you plead to this offense?

5. Do you understand you are pleading guilty to a felony, the maximum penalty for which is X years in the State prison? (If there is a mandatory minimum, inform defendant of that as well.)

6. Do you understand that no one can make any promises for me as to how I will dispose of this case; that is, no one can promise I will be easy on you or put you on probation?

7. Has anyone promised you I would be easy on you?

8. Have any promises or threats been made to induce you to plead guilty?

■ 9. Do you realize that as of now I do not know how I will dispose of this case, and that I will not know until I have a full and complete presentence report?

10. Do you understand that at that trial the people would have to produce all the witnesses against you in open court, and you would have the right through your attorney to cross-examine all of them?

11. Do you understand you would not have to take the witness stand in your own defense unless you desired to do so, and if you did not take the witness stand, the prosecutor could not comment on your failure to do so?

12. Do you want a jury trial or trial by tbe court without jury in this matter?

13. Have you made any confessions or admissions to the police involving this matter?

14. If so, do they have anything to do with your present plea of guilty? If for any reason you feel that the confessions or admissions you made were not freely and voluntarily made, you are entitled to have an evidentiary hearing prior to trial to have the court determine if the confessions or admissions were freely and voluntarily made. Do you wish the court to conduct such a hearing? (Get a response from the defendant on the record.)

15. Are you on probation or parole?

16. If so, do you realize that in pleading guilty you are admitting violation of probation or parole, and you may be punished for that?

17. Reviewing all the things I have told you, do you still desire to plead guilty?

18. When did you decide to plead guilty?

19. Why did you decide to plead guilty?

20. Did you discuss pleading guilty with anyone? With whom? What was the discussion? (Have defendant, or his attorney, and the prosecuting attorney state on the record their discussion with each other concerning a reduction of charge where a reduced charge is involved.)

21. Tell me in your own language what you did in this case.

. It is obvious that the form and manner of the examination of the defendant by the trial judge rests in the sound discretion of the trial judge, providing the court fully complies with the mandate of this opinion, the mandate of GCR 1963, 785.3, and the statute governing the taking of pleas of guilty, CL 1948, § 768.35. It is emphasized that the requirements set forth in this, opinion are prospective only, in the acceptance of future pleas, and they will be applied to pleas taken subsequent to February 1, 1968.

For the reasons given, this case is reversed and remanded to the trial court for proceedings in conformity with this opinion.

Lesinski, C.J., and Quinn, J., concurred.

       OL 1948, § 750.110, as amended by PA 1964, No 133 (Stat Ann 1965 Cum Supp § 28.305).

       “If the aecused pleads guilty, after such plea and before sentence the court shall inform the accused of the nature of the accusation and the consequence of his plea; and regardless of whether he is represented by counsel, the court shall examine the aecused, not necessarily under oath, and as a condition of accepting the plea of guilty and imposing sentence shall ascertain that the plea was freely, understandingly, and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency. Unless the court determines that the plea of guilty was so made, it shall not be accepted.”

       See PA 1875, No 99.

       See 318 Mich xxxix.

        Pardee v. Smith, (1873), 27 Mich 33; People v. Banning (1950), 329 Mich 1; People v. Mahler (1950), 329 Mich 155; People v. Losinger (1951), 331 Mich 490; In re Joslin (1952), 334 Mich 627; People v. Coates (1953), 337 Mich 56; People v. Hollingsworth (1953), 338 Mich 161; People v. Case (1954), 340 Mich 526; Attorney General v. Recorder’s Court Judge (1954), 341 Mich 461; People v. Henderson (1955), 343 Mich 465; People v. Crane (1949), 323 Mich 646; People v. Bumpus (1959), 355 Mich 374; People v. Barrows (1959), 358 Mich 267; People v. Whitsitt (1960), 359 Mich 656; In re Valle (1961). 364 Mich 471; People v. Whitsitt (1962), 366 Mich 609; People v. Barmore (1962), 368 Mich 28; In re Palmer (1963), 371 Mich 656; People v. Davis (1964), 372 Mich 402; People v. Zaleski (1965), 375 Mich 71; People v. Morris (1966), 378 Mich 515; People v. Parshay (1967), 379 Mich 7; People v. Reed (1965), 1 Mich App 60; People v. Wurtz (1965), 1 Mich App 190; People v. Kearns (1965), 2 Mich App 60; People v. Johnson (1966), 2 Mich App 182; People v. Atkins (1966), 2 Mich App 199; People v. Curlis Lee Williams (1966), 2 Mich App 232; People v. Daniels (1966), 2 Mich App 395; People v. Leach (1966), 2 Mich App 713; People v. Wilkins (1966), 3 Mich App 56; People v. Walls (1966), 3 Mich App 279; People v. Hoerle (1966), 3 Mich App 693; People v. Shaffer (1966), 4 Mich App 192; People v. Steele (1966), 4 Mich App 352; People v. Winegar (1966), 4 Mich App 547; People v. Cairns (1960), 4 Mich App 633; People v. Fleming (1966), 4 Mich App 644; People v. Smith (1966), 5 Mich App 139; People v. Hilko (1966), 5 Mich App 166; People v. Hobdy (1966), 5 Mich App 275; People v. Catterson (1967), 5 Mich App 488; People v. Goldfarb
        (1967), 6 Mich App 7; People v. McKinley (1966), 5 Mich App 230; People v. Dye (1967), 6 Mich App 217; People v. Wiggins (1967) 6 Mich App 340; People v. Wolschon (1966), 2 Mich App 186; People v. Hoy (1966), 3 Mich App 666; People v. Shillings (1967), 6 Mich App 420.

        People v. Walker (On Rehearing, 1965), 374 Mich 331.


author: Burns, J.

text:
      In re HOFFMAN.
    1. Criminal Law — Constitutional Rights.
    One accused of crime lias the right to the assistance of counsel for his defense and to have an appeal as a matter of right (Const 1963, art 1, § 20).
    2. Attorney and Client — Appointed Counsel for Indigent Defendant — No-Merit Determination.
    An appointed appellate attorney’s no-merit determination with respect to an indigent criminal defendant’s appeal is not conclusive upon a court of law, but if properly executed, it may exonerate him from future responsibility in some cases.
    3. Same — Appointed Counsel — Frivolous Appeal.
    A court assignment oE counsel on appeal for an indigent defendant in a criminal prosecution requires the attorney actively to advocate in behalf of the client, but if the attorney finds the case to be wholly frivolous, he should so advise the court, and his request for permission to withdraw should be accompanied by a brief referring to anything in the record that might arguably support the appeal.
    References for Points in Headnotes
    [1] 4 Am Jur 2d, Appeal and Error § 267; 21 Am Jur 2d, Criminal Law §§ 312, 313, 318.
    [2, 3] 21 Am Jur 2d, Criminal Law §§ 321, 322.
    [4] 17 Am Jur 2d, Contempt § 25; 21 Am Jur 2d, Criminal Law §•§ 321, 322.

      4. Contempt — Attorney—Refusal to Represent Indigent.
    Attorney, who refused to file a motion for a new trial or an appeal for an indigent defendant, after being ordered to do so by the trial court was properly held, in contempt of court, since there was a direct refusal to comply with a court order.
    Appeal from Allegan; Smith (Raymond L.), J.
    Submitted Division 3 October 4, 1967, at Grand Rapids.
    (Docket No. 1,831.)
    Decided February 1, 1968.
    Leave to appeal granted April 16, 1968.
    See 380 Mich 766.
    Leo W. Hoffman was adjudged in civil contempt of court. Defendant appeals.
    Affirmed.

      Ervin L. Andrews, Prosecuting* Attorney, for the people.

      Leo W. Hoffman, in propria persona.

      Amicus Curiae: State Bar of Michigan (J. Cameron Hall, of counsel).
   Burns, J.

Defendant attorney appeals from a circuit court order holding him in contempt of court for failing and refusing to prepare and file an appeal in an indigent’s criminal case.

Ernest B. Sandefur, with the advice of attorney John Nahan, entered a plea of guilty to the open charge of murder. The circuit court for the county of Allegan determined that Sandefur was guilty’ of second-degree murder and sentenced him accordingly. Upon Sandefur’s request for the appointment of appellate counsel, on May 27, 1965, the court ordered Leo W. Ploffman to represent Sandefur on appeal.

The defendant carefully reviewed the’ record, conferred with Sandefur, concluded there were no meritorious grounds for appeal, and filed a report. In his report the defendant said:

“Even if there were some legal technicality, which might conceivably result in this man securing a new trial, I would not feel obligated or bound to pursue it under the circumstances.”

The defendant did not ask leave to withdraw but stated, “I am, therefore, stating as a matter of record, that I cannot and will not file a motion for a new trial or an appeal for Ernest Sandefur.” Thereafter, on September 29, 1965, Sandefur, acting on behalf of himself, petitioned for the appointment of substitute counsel and for a new trial. The court denied Sandefur’s motion for a new trial but did, however, appoint another attorney to represent Sandefur. Substitute counsel’s application for delayed appeal with the Court of Appeals and application for leave to appeal filed in the Supreme Court were denied.

The circuit judge, upon his own motion, issued an order to show cause why Hoffman should not be adjudged in contempt of court for refusing, in effect, to protect Sandefur’s right of appeal and right to assistance of counsel. Const 1963, art 1, § 20. After a hearing on said order, defendant was found to be in contempt of court.

; Defendant contends that his constitutional duty to provide “such reasonable assistance as may be necessary to perfect and prosecute an appeal” for an indigent does not compel him to compromise his oath of office and canons of professional ethics by filing an automatic appeal regardless of whether or not there is merit in the appeal.

"While appointed counsel need not impugn his professional integrity in the defense of an indigent, we hasten to admonish that such ethical considerations should not countenance a disparity in the quality of advocacy resulting from the contrasting economics of governmental remuneration and private retainer. An appointed appellate attorney’s no-merit determination is not conclusive upon a court of law, but if properly executed, it may exonerate him from future responsibility in some cases.

In Anders v. California (1967), 386 US 738 (87 S Ct 1396, 18 L ed 2d 493), the United States Supreme Court held the California system for handling in-, digent appeals unconstitutional and established the. following “single inflexible answer to the difficult problem of how to accord equal protection to indigent appellants in each of the 50 States” :

“The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support' the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel— then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as Federal requirements are concerned, or proceed to a decision on the merits, if State law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” 386 US 744 (87 S Ct 1400, 18 L ed 2d 498).

Unfortunately, the above procedure postdated defendant’s course of action, and there was no Michigan law to guide him. Irrespective of the defendant’s personal feelings or motives, he did not ask the court to withdraw from representing Sandefur but told the court he would not file a motion for a new trial or an appeal for Sandefur. This constituted a direct refusal to comply with a court order. The defendant was in contempt of court.

Judgment affirmed.

Fitzgerald, P. J., and Holbrook, J., concurred.

       See Justice Stewart’s dissent in Anders v. California. 386 US 745, 747 (87 S Ct 1400, 1401, 18 L ed 2d 499, 500).


author: T. G. Kavanagh, J.

text:
    PEOPLE v. KENNEDY.
    1. Perjury — False Swearing.
    False swearing is essential to the crime of perjury (CL 1948, § 750.423).
    2. Same — False Swearing — Preliminary Examination.
    Basing a eharge of perjury on an examination at which no evidence of false swearing was adduced and binding over the defendant for trial on such charge, held, an abuse of discretion, even though at subsequent trial the testimony sustained the people’s charge (CL 1948, § 750.423).
    References for Points in Headnotes
    [1] 41 .Am Jur, Perjury §§ 8-10.
    [2] 41 Am Jur, Perjury §§ 33, 43, 48, 57, 59,

      Appeal from Oakland; Ziem (Frederick C.), J.
    Submitted Division 2 June 9, 1967, at Detroit.
    (Docket No. 3,052.)
    Decided February 9, 1968.
    Edward Kennedy was convicted of perjury. Defendant appeals.
    Reversed and information quashed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, 8. Jerome Bronson, Prosecuting Attorney, Robert W. Leutheuser, Chief Appellate Counsel, Thomas G. Plunkett, Chief Assistant Prosecuting Attorney, and Bruce T. Leitman, Assistant Prosecuting Attorney, for the people.

      J. Leonard Hyman, for defendant.
   T. G. Kavanagh, J.

Edward L. Kennedy, formerly the Royal Oak township (Oakland county) supervisor, was convicted on a charge of perjury before a grand jury.

Complaint to the effect that he had committed perjury was made and a preliminary examination was conducted at which the people produced only 1 witness who testified that Kennedy had accepted a bribe.

Following the preliminary examination, a general information charged him with perjury on 3 counts, the first and second concerning testimony before the grand juror on January 13, 1966, and the third concerning testimony before the grand juror on June- 22, 1965.

A motion to quash the information was made and counts 1 and 3 were quashed. The defendant went to trial on, and was convicted of perjury on the second count.

This appeal makes 12 assertions of error, consideration of only 1 of -which is necessary to decision in this case:

Did the examining magistrate err in binding the defendant over for trial on the charge of perjury?

It is admitted in the agreed statement of facts that at the preliminary examination the prosecution failed to prove that the defendant had made a statement under oath to the grand juror. Although this fact was subsequently established at the trial, this failure at the preliminary examination is fatal to the people’s case.

Absent evidence tending to show false swearing, there is no evidence upon which to base a charge of perjury. The crime of perjury is defined in CL 1948, § 750.423 (Stat Ann 1954 Eev § 28.665):

“Any person authorized by any statute of this State to take an oath, or any person of whom an oath shall be required by law, who shall wilfully swear falsely, in regard to any matter or thing, respecting which such oath is authorized or required, shall be guilty of perjury, a felony, punishable by imprisonment in the State prison not more than 15 years.”

Thus false swearing is essential to the crime of perjury.

To base a charge of perjury on an examination at which no evidence of false swearing is adduced and to bind over a defendant for trial on such charge is manifestly an abuse of discretion. As the court said in People v. White (1936), 276 Mich 29, 31, 32:

“The failure of the people to sustain their charge may be unfortunate, in view of the subsequent testimony at the trial, but it would be more unfortunate to upset established and well understood rules of Jaw.”

See, also, People v. Asta (1953), 337 Mich 590.

For this reason the conviction must be set aside and the information quashed.

Fitzgerald, P. J., and Levin, J. concurred.