author: D. F. Walsh, P.J.

text:
    GREEN v INGERSOLL
    Docket No. 78-1777.
    Submitted February 8, 1979, at Grand Rapids.
    Decided March 20, 1979.
    Richard M. Green and Sandra L. Green entered into an agreement with Robert E. Ingersoll and Pauline Ingersoll for the purchase of a home. The Greens assumed an existing mortgage, made a down payment and agreed to execute a second mortgage in the amount of $6,400. This amount was reduced to $5,758.51 due to agreed-upon work done by Mr. Green on the house. Shortly thereafter the Greens began to experience problems with the house. Ingersoll, after attempting to remedy the problems, filed an affidavit of lien stating that the Greens had failed to execute the note and mortgage in accordance with their agreement. The Greens then sold the house to Roy and Sharon Bennett but because of the recorded affidavit of lien the title insurance company required delivery of $8,900 into an escrow account until the issue of liability on the mortgage mentioned in the affidavit was settled. The Greens filed a complaint against the Ingersolls in Kent Circuit Court, claiming that the defendants could not enforce their claim against plaintiffs because Robert Ingersoll did not have a residential builder’s license when the house was constructed, and for other equitable relief. Defendants counterclaimed for the balance due on the agreed upon but unexecuted second mortgage claiming that Ingersoll had built the house for his own use and occupancy until a sale could be accomplished, that the house was used as a storage place for equipment, he and his son spent two nights in the house to protect it against Halloween vandalism, the house was always open to the public, and therefore, they were exempt from the requirement of obtaining a license under the residential builders licensing act and could maintain the counterclaim. Judgment for defendants, George V. Boucher, J. Plaintiffs appeal. Held:

      References for Points in Headnotes

       13 Am Jur 2d, Building and Construction Contracts §§ 130, 131.
    13 Am Jur 2d, Buildings § 8.

       51 Am Jur 2d, Licenses and Permits §§ 34, 35.

       51 Am Jur 2d, Licenses and Permits § 35.

       27 Am Jur 2d, Equity §§ 131-135.

      1. An unlicensed residential builder who builds a house for sale and not for his own use and occupancy is not exempt from obtaining a license under the residential builders licensing act. To avoid the license requirement an unlicensed builder is required to present evidence of his own practical and substantial use of a building for the purpose for which it was designed. The storage of equipment, use as a model home or spending two nights in the house to prevent Halloween vandalism cannot reasonably be interpreted as substantial use; therefore, the residential builders licensing act divested the Ingersolls of the power to seek, by way of complaint or counterclaim, a money judgment against the Greens.
    2. This decision, however, does not end the court’s inquiry. A person who seeks equity must be prepared to do equity. A violation of a provision in the residential builders licensing act which prevents an unlicensed builder from bringing suit is not a bar to relief in an equitable action. Plaintiffs have invoked the powers of equity. There may be outstanding equitable claims against them. Therefore, the court is bound to determine the relative equitable rights of the parties in fashioning the appropriate relief. The case is remanded to the circuit court for a determination of the equitable rights of the parties. If the court determines that the Greens are entitled to the equitable relief which they seek, then the court must also determine what the Greens must pay the Ingersolls in order to do equity.
    Reversed and remanded.
    1. Licenses — Residential Builders — Residential Builder’s Act — Occupancy — Substantial Use — Attorney General’s Opinions.
    Generally, a building is not occupied within the meaning of the residential builders licensing act until it is put to a practical and substantial use for which it was designed (OAG 1975-1976, No. 4782).
    2. Licenses — Residential Builder’s Act — Purpose — Protection of Homeowners — Use and Occupancy — Exemptions — Statutes.
    The purpose of the residential builders licensing act is the protection of homeowners and persons undertaking to become homeowners; according to the statute, residential builders do not include those persons who erect residential structures for their own use and occupancy on their own property but it is clear that only those builders who actually build residential structures on their own property for the purpose of personally using and occupying the structures are exempt from the requirement of obtaining a builder’s license (MCL 338.1501 et seq., MCL 338.1503[b]; MSA 18.86[101] et seq., 18.86[103][b]).
    3. Licenses — Residential Builder’s Act — Exemptions — Use and Occupancy — Statutes.
    An unlicensed builder claiming exemption under the residential builders licensing act is required to present evidence of his own practical and substantial use of a building for the purpose for which it was designed (MCL 338.1503[b]; MSA 18.86[103][b]).
    4. Licenses — Residential Builder’s Act — Exemptions — Use and Occupancy — Builder’s Power to Sue.
    An unlicensed builder who builds a house for the purpose of sale and not for his own use and occupancy is not exempt from the requirement for a builder’s license under the residential builders licensing act and for this reason is divested of the power to sue by way of complaint or countercomplaint for a money judgment against the purchaser of the house.
    5. Equity — Licenses — Residential Builder’s Act — Equitable Claims — Equitable Rights — Appropriate Relief.
    It is a cardinal principle that equity will not aid a party in doing that which is not equitable because he who seeks equity must be prepared to do equity and a violation of a provision in the residential builders licensing act which prevents an unlicensed builder from bringing suit for a money judgment is not a bar to relief in an equitable action; therefore, where the powers of equity are invoked by a plaintiff who may have claims against him, the court is bound to determine the relative equitable rights of all parties in fashioning the appropriate relief.

      Mohney, Goodrich & Titta (by Robert D. Vanderlaan), for plaintiffs.

      Bergstrom, Slykhouse & Shaw, P.C. (by Craig S. Neckers), for defendants.
    Before: D. F. Walsh, P.J., and J. H. Gillis and T. M. Burns, JJ.
   D. F. Walsh, P.J.

Plaintiffs, Richard and Sandra Green, appeal the entry of judgment for defendants, Robert and Pauline Ingersoll, in the amount of $5,758.51, plus 6% interest from July 20, 1977. The judgment was awarded on defendants’ counterclaim against plaintiffs; plaintiffs’ complaint was dismissed with prejudice.

Defendant, Robert Ingersoll, a residential builder since 1951, purchased 14 parcels of property in Kent County. On November 4, 1970, the township issued a building permit to him for construction of a house on the lot at 7660 Hessler Drive, Rockford, Michigan. Construction was completed in May 1971, at which time a certificate of occupancy was issued. Mr. Ingersoll built a total of 13 houses on the 14 lots. The house at 7660 Hessler Drive was used by the Ingersolls as a model home. The garage of the house was used as a storage place for equipment and other items owned by defendants. Mr. Ingersoll and his son spent two nights in the house to protect it against Halloween vandalism. The house was at all times open for sale to the general public. During construction and after completion there were offers to purchase which did not result in sale of the house.

In June 1972, plaintiffs and defendants entered into a buy-sell agreement for the house at 7660 Hessler Drive. The purchase price was $41,400. Plaintiffs assumed an existing mortgage and made a down payment of approximately $5,000. They also agreed to execute a second mortgage in favor of defendants in the amount of $6,400. This amount was reduced to $5,758.51 due to agreed-upon work done by Mr. Green on the house. It is undisputed that Mr. Ingersoll did not have a residential builders license during construction of the house or at the time of sale.

Within a few months plaintiffs began to experience problems with the house. Mr. Ingersoll visited the house in an attempt to remedy the problems.

On July 16, 1974, defendants filed an affidavit of lien with the Kent County Register of Deeds. In the affidavit they stated that plaintiffs had failed to execute the note and mortgage in accordance with their 1972 agreement. The affidavit’s purpose was to notify subsequent purchasers that defendants claimed a lien on the property in the amount still owing to them for the home.

On July 11, 1977, plaintiffs sold the house to third-party defendants, Roy and Sharon Bennett. Because of the recorded affidavit of lien the title insurance company involved in the sale required delivery of $8,900 into an escrow account until the issue of liability on the mortgage mentioned in the affidavit was settled.

Plaintiffs filed a complaint against defendants on July 20, 1977. They claimed, inter alia, that defendants could not enforce their claim against plaintiffs because Mr. Ingersoll did not have a residential builders license when the house was constructed and sold. MCL 338.1516; MSA 18.86(116). Plaintiffs asked the circuit judge to declare defendants’ lien illegal and void and to set aside the cloud on the title; to release the escrow funds to plaintiffs; to order defendants to pay the attorney fees and costs incurred by plaintiffs in removing the cloud from the title; to order defendants to release to plaintiffs all right, title and interest claimed by defendants in the property and to declare that defendants had no rights, title or interest therein; to bar defendants from maintaining any action against plaintiffs for money due on the home; and to grant such further relief as would accord with equity and good conscience. Defendants counterclaimed for the balance due on the agreed-upon but unexecuted second mortgage.

After hearing the testimony of Mrs. Green and Mr. Ingersoll, the trial court found that Mr. Ingersoll had built the house "for sale but also for his own use and occupancy until that sale could be accomplished”. The judge found that the house had been "used and occupied by him [Mr. Ingersoll] as an office, storage facility and showcase for open houses; also overnight on two occasions”.

The trial judge concluded that the transaction between plaintiffs and defendants was exempt from the requirements of the residential builders licensing act, MCL 338.1501 et seq.; MSA 18.86(101) et seq., for the reason that defendants came within the statutory exemption from the licensing requirement for "owners of property, with reference to structures thereon for their own use and occupancy”. MCL 338.1503(b); MSA 18.86(103)(b). Accordingly, the court ruled that § 16 of the act did not bar defendants’ counterclaim for a money judgment against plaintiffs. MCL 338.1516; MSA 18.86(116).

On appeal defendants, in support of the result reached by the trial court, argue that, since they did not enter into a construction contract with plaintiffs, the residential builders licensing act does not apply to them. The act’s definition of residential builder, however, expressly includes a "person who erects a residential structure except for his own use and occupancy on his own property”. MCL 338.1502(b); MSA 18.86(102)(b). To come within the act’s purview, a builder need not enter into a contract for construction with a particular buyer. Unless one of the statutory exemptions applies, defendants are precluded from seeking a money judgment against plaintiffs in connection with the sale of the house.

As noted above, the trial court relied on the statutory provision which exempts from the licensing requirement owners of property who build structures thereon for their own use and occupancy. MCL 338.1503(b). It is undisputed that defendants "used” the house. What is at issue is whether it was also "occupied” by them so as to remove them from the § 16 prohibition against suit by unlicensed builders. The trial judge adopted the following broad definition of occupancy: "to take or enter upon possession of; to hold possession of; to hold or keep for use; to possess; to tenant; to do business in”. Black’s Law Dictionary (4th ed 1968), p 1231.

In construing the term "occupancy” as used in another section of the residential builders licensing act, the Attorney General, noting the significance of the act’s purpose to protect consumers, expressed approval of the following definition from American & Foreign Ins Co v Allied Plumbing & Heating Co, 36 Mich App 561, 565; 194 NW2d 158 (1971), lv den 387 Mich 753 (1972): "ordinarily a building is not * * * 'occupied’ until it is put to a practical and substantial use for which it was designed * * *.” OAG 1975-1976, No. 4782, p 70 (April 30, 1975).

The Legislature hás described the purpose of the residential builders licensing act as the protection of homeowners and persons undertaking to become homeowners. MCL 338.1501; MSA 18.86(101). The provisions of the act must be construed with this legislative purpose in mind. Tracer v Bushre, 381 Mich 282, 290; 160 NW2d 898 (1968), Artman v College Heights Mobile Park, Inc, 20 Mich App 193, 199; 173 NW2d 833 (1969). According to the act, residential builders do not include those persons who erect residential structures "for [their] own use and occupancy on [their] own property”. MCL 338.1502(b). Construing the exemption section together with this definitional provision, it is clear that the Legislature intended to exempt only those builders who actually build residential structures on their own property for the purpose of personally using and occupying the structures.

In view of the legislative directive that the act is to protect homeowners, we adopt the Attorney General’s approach and require the unlicensed builder claiming exemption under MCL 338.1503(b) to present evidence of his own practical and substantial use of the building for the purpose for which it was designed.

The sole reasonable interpretation of the evidence presented by the instant parties is that Mr. Ingersoll built the house at 7660 Hessler Drive for the purpose of sale as a dwelling and not for his own use and occupancy. The two nights he and his son spent in the house cannot reasonably be interpreted as substantial use of the building for the residential purpose for which it was designed. Nor do the storage of equipment and other items and the use of the house as a model home constitute the "occupancy” clearly contemplated by the Legislature.

Because Mr. Ingersoll was not licensed during the construction or sale of the house, the act divested him of the power to seek (by way of complaint or counterclaim) a money judgment against plaintiffs. Charles Featherly Construction Co v Property Development Group, Inc, 400 Mich 198, 203; 253 NW2d 643 (1977).

Proper disposition of this case, however, does not end with reversal of the entry of judgment in defendants’ favor. The Supreme Court recently discussed the significance of the equitable nature of the plaintiff home-buyer’s suit as it relates to the defendant seller’s concurrent right to be treated equitably. In Kirkendall v Heckinger, 403 Mich 371; 269 NW2d 184 (1978), the plaintiffs filed suit requesting equitable relief in the form of either conveyance of a parcel of property, on which defendant Carl Heckinger had built a home at plaintiffs’ direction, provided plaintiffs pay a certain sum of money to defendants, or alternatively a money award from defendants to prevent unjust enrichment. The defendant builder, who was unlicensed, counterclaimed for a sum representing, inter alia, the cost of his labor and materials. Citing § 16 of the residential builders licensing act, the trial court dismissed the counterclaim. The Supreme Court concluded that the trial court correctly dismissed the counterclaim but nonetheless remanded to the circuit court for a determination of the amount of reasonable expenses the plaintiffs (Kirkendalls) were to pay defendants (Heckingers) on conveyance of the property:

"Heckinger, whether a plaintiff or as here a counter-claimant, could not seek a money judgment against the Kirkendalls because of the statute. The trial court was consequently correct in dismissing the counterclaim.
"That does not end our inquiry, however.
" 'It is a cardinal principle that equity will not aid a party in doing that which is not equitable. He who seeks equity must be prepared to do equity.’ Goodenow v Curtis, 33 Mich 505, 509 (1876).
"See, also, Bonninghausen v Hansen, 305 Mich 595; 9 NW2d 856 (1943).
"The plaintiffs sought an equitable remedy. Before ordering the conveyance to Dennis Kirkendall, the trial court was obliged to determine the amount the plaintiffs were required to pay the defendants in order to do equity. As the equitable mortgagee, Heckinger was entitled as a condition to reconveyance to reasonable expenditures for improvements on the property made with the Kirkendalls’ consent (and in fact with Dennis Kirkendall’s active participation) while Heckinger had title to the property. Osborne, Mortgages, §§ 169-170; 4 Pomeroy’s Equity Jurisprudence (5th ed), § 1217.” Id., at 374.

So too in this case, as noted by the trial judge, it was plaintiffs who first invoked the equity powers of the court. Although we disavow the trial judge’s definition of "use and occupancy” and hold that the court was precluded, under the statute, from granting defendants any relief on their counterclaim, he was bound to determine the relative equitable rights of all parties in fashioning the appropriate relief.

We therefore reverse the judgment entered for defendants and remand this case to the circuit court for a determination of the equitable rights of the parties. If the court determines that plaintiffs are entitled to the equitable relief which they seek, it shall also determine what plaintiffs must pay defendants in order to do equity.

Reversed and remanded for proceedings consistent with this opinion. No costs, each party having partially prevailed.


source: Caselaw Access Project

author: V. J. Brennan, J.

license: Public Domain

text:
    PEOPLE v TAYLOR
    Docket No. 78-2027.
    Submitted December 11, 1978, at Lansing.
    Decided March 20, 1979.
    Doil Taylor was convicted, on his plea of guilty, in district court in Lapeer County, of attempted possession of gambling policy slips. The defendant appealed to the Lapeer Circuit Court claiming that the statute under which he was convicted was vague and overbroad, and thus unconstitutional, and that reversible error occurred when the district judge accepted the defendant’s plea without explaining the various rights waived thereby. The circuit court, Martin E. Clements, J., ruled in favor of the constitutionality of the statute but set aside the defendant’s conviction due to the district court’s failure to explain the rights waived by the plea. The circuit court remanded the cause on the original charge, not the lesser charge to which the defendant entered the plea. Thé defendant now appeals by leave granted, alleging 1) the unconstitutionality of the statute, and 2) that remand on the greater original charge was improper. Held:

    1. The plea was constitutionally defective because the district judge failed to advise the defendant of the rights that he was giving up by entering a plea of guilty.
    2. A reading of the entire statute leads to the reasonable conclusion that possession of various written memoranda used in gambling operations is prohibited. The statute is not impermissibly vague.
    3. One to whom a statute may properly be applied may not challenge that statute on grounds of overbreadth unless First Amendment rights and chilling effects thereon are involved. Therefore, the defendant lacks standing to raise the over-breadth issue since he has nowhere asserted that the slips in his possession were not illegal nor has he demonstrated any First Amendment rights affected by the statute.
    4. The circuit court properly vacated the defendant’s plea; however, the circuit court erred in remanding on the original charge. On remand the defendant should only be charged with the offense to which he entered the plea, not the original charge.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 487, 495.

       73 Am Jur 2d, Statutes § 346.

       21 Am Jur 2d, Criminal Law §§ 496, 505.

      Affirmed as modified.
    1. Constitutional Law — Criminal Law — Plea of Guilty — Advising Defendant — Waiver of Rights.
    A guilty plea is constitutionally defective where the judge at the plea proceeding fails to advise a defendant of the rights waived incident to the plea.
    2. Constitutional Law — Statutes — Vagueness — Proscribed Conduct.
    A statute will not be struck down for vagueness where the language, although not mathematically precise, does delineate with reasonable certainty the proscribed conduct; further, the requisite certainty may be supplied by materials outside the statutory definition of the offense or by a reading of the entire text of the statute.
    3. Constitutional Law — Statutes — Overbreadth — First Amendment — Chilling Effect.
    One to whom a statute may properly be applied may not challenge that statute on grounds of overbreadth unless First Amendment rights and a chilling effect thereon are involved.
    4. Criminal Law — Plea of Guilty — Appeal and Error — Remand — Plea Bargain — Retrial on Original Charge.
    The state, as a matter of policy, upon the acceptance of a plea of guilty, may not thereafter charge a higher offense arising out of the same transaction; however, an exception to the above rule exists where the prosecution calls the court’s attention to a plea-taking error before the plea is accepted and the trial court vacates the plea on defendant’s motion or with defendant’s consent or the trial court is reversed on appeal on the basis of the same error; this exception is inapplicable where, although not asked to comment on the plea, the prosecutor had every opportunity to point out errors in the proceeding but failed to do so.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Edward B. Meth, Prosecuting Attorney, (Prosecuting Attorneys Appellate Service, Thomas C. Nelson, Assistant Attorney General, of counsel), for the people.

      N. C. Deday LaRene, for defendant on appeal.
    Before: R. B. Burns, P.J., and J. H. Gillis, and V. J. Brennan, JJ.
   V. J. Brennan, J.

Defendant, Doil Taylor, was convicted, on his guilty plea in 71-A District Court for the County of Lapeer, of attempted possession of gambling policy slips. MCL 750.306; MSA 28.538; MCL 750.92; MSA 28.287. Defendant was sentenced to 180 days in the county jail (to be served on weekends) and was ordered to pay $500 in fines and costs. Defendant then appealed to the circuit court claiming first that the subject statute was vague and overbroad and thus unconstitutional and second that reversible error occurred when the district judge accepted defendant’s guilty plea without explaining the various rights waived thereby. The circuit court ruled in favor of the constitutionality of the statute but set aside the defendant’s conviction due to the district court’s failure to explain the rights waived by the plea. The circuit court then remanded the cause on the original charge (and not the lesser charge to which the defendant pled) holding that People v McMiller, 389 Mich 425; 208 NW2d 451 (1973), did not apply "as the prosecuting attorney was not asked whether he would comment upon the plea taking procedure”.

Defendant brings this appeal by leave granted arguing both the unconstitutionality of the statute and the applicability of McMiller.

Initially we point out that the circuit court properly vacated the plea due to the district court’s failure to substantially comply with DCR 1963, 785.4(d)(1) which states that before the plea is accepted the court shall advise the defendant that "he will not have a trial of any kind, so he gives up the rights he would have at a trial”. Upon review of the plea transcript nowhere do we find that the defendant was advised of the rights waived incident to the plea. The resultant plea was thus "constitutionally defective”. Guilty Plea Cases, 395 Mich 96, 121; 235 NW2d 132 (1975).

We now address defendant’s contention that the statute in question is unconstitutional for vagueness and overbreadth. MCL 750.306 provides:

"All policy or pool tickets, slips or checks, memoranda of any combination or other bet, manifold or other policy or pool books or sheets, are hereby declared a common nuisance and the possession thereof a misdemeanor, punishable by imprisonment in the county jail not more than 1 year or by a fine of not more than 500 dollars.
"The possession of any such articles, or of any other implements, apparatus or materials of any other form of gaming, shall be prima facie evidence of their use, by the person having them in possession, in the form of gaming in which like articles are commonly used. And such article found upon the person of one lawfully arrested for violation of any law relative to lotteries, policy lotteries or policy, the buying or selling of pools or registering of bets or other form of gaming shall be competent evidence upon the trial of an indictment to which it may be relevant.”

The thrust of defendant’s vagueness argument centers on the use of the terms "policy”, "pool” and "manifold”. Defendant asserts that people of common intelligence are not given fair notice of the conduct proscribed or that judges and jurors are free to decide what is or is not prohibited in each particular case contrary to Giaccio v Pennsyl vania, 382 US 399; 86 S Ct 518; 15 L Ed 2d 447 (1966).

A statute will not be struck down for vagueness where the language, although not mathematically precise, does delineate with reasonable certainty the proscribed conduct. Grayned v City of Rockford, 408 US 104; 92 S Ct 2294; 33 L Ed 2d 222 (1972), People v Chapman, 80 Mich App 583, 586; 264 NW2d 69 (1978). Further, the requisite certainty may be supplied by materials outside the statutory definition of the offense or by a reading of the entire text of the statute. Kalita v Detroit, 57 Mich App 696, 701; 226 NW2d 699 (1975). A reading of the entire statute, MCL 750.301, et seq.; MSA 28.533, et seq., reasonably indicates that its primary aim is to prohibit various forms of gambling and the possession of "articles, materials, devices, et cetera, which have integral connections with a gambling game or which are actually used in gambling operations”. People v Locricchio, 373 Mich 490, 495; 129 NW2d 856 (1964). When MCL 750.306 is read in this light a reasonable interpretation concludes that possession of various written memoranda used in gambling operations is prohibited. Accordingly, the statute is not impermissibly vague.

Defendant next argues the statute’s overbreadth in that participation in the legal state lottery is also prohibited. We point out that one to whom a statute may properly be applied may not challenge that statute on grounds of overbreadth unless First Amendment rights and a chilling effect thereon are involved. Broadrick v Oklahoma, 413 US 601; 93 S Ct 2908; 37 L Ed 2d 830 (1973), People v Chapman, supra. The defendant has nowhere asserted that the gambling slips in his possession were legal lottery tickets, nor has the defendant demonstrated any First Amendment rights affected by the statute. Therefore, defendant lacks standing to raise the overbreadth issue.

Defendant next argues that the circuit court erred in ruling People v McMiller, supra, inapplicable due to the fact that the prosecutor was not asked to comment on the plea procedure. We agree. The proper McMiller exception most certainly relied upon by the circuit court is found in Guilty Plea Cases, supra, 136-137, as follows:

"If the prosecutor calls the court’s attention to plea-taking error before the plea is accepted, McMiller will not apply in the event the trial court vacates the plea on defendant’s motion or with defendant’s consent or the trial court is reversed on appeal on the basis of the same error.”

The record in the present case indicates that the prosecutor, although not asked to comment on the plea, had every opportunity to point out errors in the proceeding. Since this was not done, the above-mentioned exception to McMiller is rendered inapplicable.

We affirm the circuit court in vacating defendant’s plea, however, on remand, in accordance with People v McMiller, supra, the defendant may not be charged with an offense higher than that to which he pled.

Affirmed as modified.

       Pursuant to the enactment of MCL 432.1, et seq.; MSA 18.969(1), et seq., participation in the state lottery and in licensed bingo or millionaire parties is permitted. We invite the Legislature to revisit MCL 750.301, et seq.; MSA 28.533, et seq., in order to update and redefine its prohibitions in accordance with the state’s and citizenry’s progressive attitude.

       This omission on the part of the district judge cannot be held error since under DCR 1963, 785.4(d) there is no requirement that the prosecutor be asked to comment on the plea procedure.


author: Per Curiam.

text:
    PEOPLE v WRIGHT
    Docket No. 31512.
    Submitted June 22, 1978, at Detroit.
    Decided March 20, 1979.
    Arnold Wright was convicted of aiding and abetting the delivery of heroin, Recorder’s Court of Detroit, John P. O’Brien, J. At the time of the defendant’s trial on the above charge, he was serving a prison sentence for a conviction on a different charge stemming from the police investigation of the defendant’s suspected trafficking in heroin. The defendant’s trial on the aiding and abetting charge was delayed by the prosecution. The defendant appeals alleging, among other things, that because the prosecution failed to bring him to trial on the aiding and abetting charge within the 180-day period prescribed by statute for bringing a state prison inmate to trial on an outstanding charge, the circuit court lost jurisdiction to try the case and the charge must be dismissed. Held:

    The prosecution did delay more than 180 days in proceeding to trial with the case against the defendant on the aiding and abetting charge. Thus, since the defendant was incarcerated during this time and the Department of Corrections knew or had reason to know of the charges against the defendant and since the record does not show that the prosecution made a good faith effort to proceed with the trial or that the defendant caused the delay in proceeding to trial the charges against the defendant should be dismissed.
    Reversed and remanded to the trial court for entry of an order of dismissal with prejudice.
    1. Criminal Law — Speedy Trial — Inmates — Commencement of Proceedings — 180-Day Rule — Sanctions — Statutes.
    Law enforcement officials have a duty to see that state prison inmates are brought to trial on outstanding warrants in good faith within 180 days; the sanction for violation of this duty is the court’s loss of jurisdiction and dismissal (MCL 780.133; MSA 28.969[3]).

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 246, 249, 254.

       21 Am Jur 2d, Criminal Law § 157.

       21 Am Jur 2d, Criminal Law § 253.

       21 Am Jur 2d, Criminal Law § 245.

      2. Criminal Law — Speedy Trial — Notice — Department of Corrections — Inmates — Outstanding Warrants.
    Actual notice from the Department of Corrections to a prosecutor’s office is not necessary to trigger the running of the 180-day period in which state prison inmates are to be brought to trial on outstanding warrants.
    3. Criminal Law — Speedy Trial — Inmates — Commencement of Proceedings — 180-Day Rule — Statutes.
    The 180-day statutory period which controls the time for commencing a criminal prosecution against a prison inmate on outstanding warrants begins with the coincidence of either of the following conditions 1 or 2 and condition 3: (1) the issuance of a warrant, indictment or complaint against a person incarcerated in a state prison or under detention in any local facility awaiting incarceration in any state prison, or (2) the incarceration of a defendant in a state prison or the detention of such defendant in a local facility to await such incarceration when there is an untried warrant, indictment, information or complaint pending against such defendant, and (3) the prosecutor knows or should know that the defendant is so incarcerated when the warrant, indictment, information or complaint is issued or the Department of Corrections knows or should know that a warrant, indictment, or complaint is pending against one in their custody (MCL 780.131 et seq.; MSA 28.969[1] et seq.).

    4. Criminal Law — Speedy Trial — Inmates — Commencement of Proceedings — 180-Day Rule — Statutes.
    There is no requirement that a trial on an outstanding warrant against a defendant who is a state prison inmate be concluded within 180 days but rather that the prosecution take good faith action within that time to ready the case for trial (MCL 780.131 et seq.; MSA 28.969[1] et seq.).

    5. Criminal Law — Speedy Trial — Inmates — Commencement of Proceedings — 180-Day Rule — Statutes.
    The prosecution has the burden of establishing good faith action to comply with the statute which provides a 180-day period in which a state prison inmate must be brought to trial on an outstanding warrant (MCL 780.131; MSA 28.969[1]).
    6. Criminal Law — Speedy Trial — Inmates — Commencement of Proceedings — 180-Day Rule — Statutes.
    Delay in commencement of criminal proceedings against a state prison inmate which results from other proceedings against the same defendant will not necessarily constitute a violation of the 180-day statute (MCL 780.131; MSA 28.969[1]).
    7. Criminal Law — Speedy Trial — Commencement of Proceedings — 180-Day Rule.
    A prosecutor, when filing simultaneously several charges against a defendant, must be aware that a conviction of any one will trigger the 180-day rule for bringing the defendant to trial in the other cases; the prosecutor must, therefore, absent delays by the defendant or extraordinary circumstances, take sufficient good faith action on all pending cases with reasonable dispatch to avoid a violation of the 180-day rule.

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

      Harold M. Ryan, for defendant on appeal.
    Before: D. C. Riley, P.J., and M. F. Cavanagh and B. M. Hensick, JJ.

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

   Per Curiam.

Defendant was charged with and convicted by a jury of aiding and abetting the delivery of heroin, MCL 335.341(1)(a); MSA 18.1070(41)(1)(a), MCL 767.39; MSA 28.979, and appeals by right.

From mid-September to November, 1974, defendant was under police surveillance for suspected trafficking in heroin. During this time, a police informant and an undercover policewoman made numerous purchases of heroin that had been supplied by defendant but delivered to them by an intermediary. This period of surveillance ended with defendant’s arrest on November 7, 1974. The prosecutor brought a number of separate but related cases against the defendant as a result of this investigation, one of which ended in defendant’s conviction and incarceration on September 18, 1975.

Defendant raises essentially four claims of error; due to our view of this case, however, we find it unnecessary to discuss three of these errors and direct our attention to defendant’s claim that the prosecutor violated MCL 780.131; MSA 28.969(1), by failing to bring the defendant to trial on a pending information within the 180 days specified in the statute. As a result, the defendant asserts that the trial court lost jurisdiction to try the instant case and that it must be dismissed.

MCL 780.131; MSA 28.969(1) provides a 180-day period in which a state prison inmate must be brought to trial on an outstanding charge. The sanction for violation is thé court’s loss of jurisdiction and dismissal. MCL 780.133; MSA 28.969(3). Although the literal language of the statute speaks in terms of notice between prosecutor and the Department of Corrections to trigger the 180-day period, judicial interpretation has made it clear that actual notice is not necessary. People v Hill, 402 Mich 272, 280-281; 262 NW2d 641 (1978), People v Parker, 21 Mich App 399, 407; 175 NW2d 879 (1970).

In circumstances where there is a warrant, information, indictment or complaint outstanding against a defendant, the 180-day period is commenced by the coincidence of:

"[His] incarceration * * * in a state prison or [his] detention * * * in a local facility to await such incarceration * * * [and] the Department of Corrections knows or should know that a warrant, indictment, or complaint is pending against one sentenced to their custody.” People v Hill, supra, at 281.

Defendant was convicted and sentenced on September 18, 1975, on another charge while another indictment was pending against him. The record does not reveal the actual date of his delivery to the Department of Corrections. In their brief, the people assert that the defendant was not "under lock and key” from September 18, 1975, to June 25, 1976, apparently to raise the issue of defendant’s actual incarceration. However, the people do not argue that the defendant was not in custody during this period or present an alternative method by which to measure the 180-day statutory period. That the defendant had appeared in other court proceedings during this period does not alter the ultimate fact of his detention on or about September 18, 1975, and that the Department of Corrections knew or should have known of the outstanding untried information against defendant as of that date. The coincidence of these two events marked the beginning of the statutory 180-day period.

The dispositive issue on appeal is whether the people complied with the statutory requirement that "such inmate shall be brought to trial within 180 days”. MCL 780.131; MSA 28.969(1). It is clear that the prosecutor need not conclude the trial within the 180 days. The people must, however, take good faith action to ready the case for trial within that time. People v Hill, supra, at 281, People v Castelli, 370 Mich 147; 121 NW2d 438 (1963), People v Hendershot, 357 Mich 300; 98 NW2d 568 (1959). Courts have found lack of good-faith action where the prosecution did not keep a case alive with continued good-faith action, or where there has been a period of unexplained inaction in excess of 180 days or where the initial good faith action is followed by an "inexcusable delay” which evidences an intent not to bring the case to trial promptly.

An examination in some detail of the proceedings in the instant case is needed before a determination of compliance or noncompliance with the 180-day rule can be made.

Defendant was originally arraigned on the information on November 15, 1974. He was convicted of other violations of the Controlled Substances Act on September 18, 1975, that also grew out of the same period of police surveillance. As of that date, the instant case had not been tried or otherwise disposed of. After this conviction, the following proceedings in the case at bar appear on the record as occurring within the 180-day period:

September 26, 1975: The case is transferred to the Prosecutor’s Repeat Offender Bureau of the Wayne County Prosecutor’s Office for handling.

November 18, 1975: The prosecutor dismissed as to a co-defendant, taking no action as to defendant.

December 11, 1975: Trial is adjourned without date by the court.

February 9, 1976: Trial date of April 8, 1976, is set.

After the expiration of the 180-day limit trial was adjourned twice more, with the latest adjournment setting trial for July 21, 1976. Three writs of habeas corpus were procured to obtain the presence of defendant at trial, once on May 10, 1976, once on June 4, 1976, for pre-trial, and finally on June 16, 1976, for trial on June 21. The case was assigned to another trial judge; trial finally commenced on June 25, 1976.

Case law indicates that the people have the burden of establishing good faith action to comply with MCL 780.131; MSA 28.969(1). People v Hill, supra, at 282; see also, People v Forrest, 72 Mich App 266, 273; 249 NW2d 384 (1976). The people urge that they have met this burden by arguing that the defendant was brought to trial as soon as possible under the prevailing circumstances, pointing out that trial in the instant case was delayed by three intervening cases.

In People v Hill, supra, at 282, the Supreme Court determined that delay of a defendant’s trial resulting from other proceedings does not necessarily constitute a violation of MCL 780.131; MSA 28.969(1). However, the Court did not view such delay as justification for an automatic finding of good faith, but placed a duty on the prosecutor to demonstrate the reasonableness of his action.

In examining the record, we note that the intervening proceedings asserted as justification for the delay comprised pre-trials in two cases, held on the same day before the same judge. The trials were later adjourned and the cases eventually dismissed after sentencing in the instant case. Trial in yet a third case involving defendant commenced on April 4, 1976, and continued through April 6, 1976, at which time it was adjourned one week to await motions. The case evidently also did not proceed to verdict and sentencing and was dismissed after sentence was passed in the present case. It thus appears that a two-month hiatus existed between defendant’s April trial and the trial here.

We therefore do not find the delay to have been so reasonable as to justify a violation of the 180-day rule. The preliminaries in the instant case were complete many months in advance of trial. The intervening cases developed from the extensive surveillance of defendant involved the same principals and related violations of the Controlled Substances Act. Due to their similarities, these cases appear not to have created any particular problems of trial preparation that might reasonably create delay, nor does the prosecutor direct our attention to any difficulties in this regard.

We note, in concluding that the delay was not reasonable, that a prosecutor has a certain control in the management of his docket. He must be aware, in filing simultaneously several charges against one defendant, that a conviction of any one will trigger the 180-day rule. He must, therefore, absent delays by the defendant or extraordinary circumstances, take sufficient good faith action on all pending cases with reasonable dispatch to avoid a violation of the 180-day rule.

It remains to be seen whether any other action taken by the people to ready the case for trial may constitute good faith action within the 180-day period. The record reveals that within the 180-day period, after the case was assigned to the Prosecutor’s Repeat Offender Bureau, it was adjourned without date on December 12, 1975. A trial date of April 8, 1976, was later set on February 9, 1976. In those cases where good faith compliance with the 180-day rule was found, the prosecution had advanced the case with sufficient dispatch to conclude important initial procedural phases within 180 days and proceeded promptly thereafter. People v Castelli, supra (prosecution obtained writ of habeas corpus), People v Hendershot, supra (procurement of writ of habeas corpus, arraignment and preliminary examination), People v Wilder, 51 Mich App 280; 214 NW2d 749 (1974), lv den, 394 Mich 774 (1975) (holding of preliminary examination within 180 days), People v Asher, 32 Mich App 380; 189 NW2d 148 (1971), lv den 385 Mich 767 (1971) (preliminary examination held, court found consistent and eventual movement towards trial thereafter).

In the instant case, initial procedural steps had been completed well before defendant’s incarceration. Within the subsequent 180 days, proceedings were marked by periods of inaction, interrupted only by the setting and postponement of the trial date without reason given (a delay chargeable to the people, People v Forrest, supra, and a prior adjournment of trial without date. We are therefore not persuaded that the steps taken by the people satisfied their burden of good faith action sufficient to prevent the trial court’s loss of jurisdiction pursuant to MCL 780.133; MSA 28.969(3).

Accordingly, we reverse and remand to the trial court for entry of an order of dismissal with prejudice.

       MCL 780.131; MSA 28.969(1) provides:
      "Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.”

       This section states:
      "In the event that, within the time limitation set forth in section 1 of this act, action is not commenced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”

        People v Parker, supra.

         People v Forrest, 72 Mich App 266; 249 NW2d 384 (1976).

        People v Hendershot, supra.

       Copies of records apparently kept of the proceedings by the prosecutor’s office show that a pre-trial was held on December 31, 1975, before Judge Crockett, Jr. The actual Recorder’s Court file does not show that such a pre-trial was held on that date.

       Trial was adjourned on March 23, 1976, to May 13, 1976, and again on May 17, 1976, to July 21, 1976. One week after this last adjournment, trial was re-set for June 21, 1976.

       Records of proceedings against the defendant in three intervening cases between his conviction and trial in the case at bar, PlaintiffAppellee’s Brief, Appendix A.


text:
    HACK v FOSTER
    Docket No. 77-1344.
    Submitted January 9, 1979, at Detroit.
    Decided March 20, 1979.
    Helen Hack was knocked to the ground and allegedly injured when her dog, which she was walking, was attacked by a dog owned by Thomas Foster, Jr. Mrs. Hack and her husband Morton Hack brought an action for damages against Foster and his father Thomas Foster, Sr. The Hacks’ case was based in large part on the fact that the Fosters’ dog was unleashed, in violation of both the Detroit City Code and a state statute. Trial resulted in a judgment of no cause of action, Wayne Circuit Court, Thomas Roumell, J. Plaintiffs appeal, alleging that the trial court erred when it failed to read the state statute involved to the jury pursuant to plaintiffs’ request and when it instructed the jury that the prima facie presumption of negligence which results from violation of the city ordinance has no weight as evidence. Held:

    1. The court’s failure to read the statute upon timely request was error. This error was harmless, however, because in this case a city ordinance, which was read to the jury, provides by its terms that a violation is prima facie evidence of negligence. The legal effect of the ordinance violation, therefore, is the same as the violation of the statute.
    2. The instruction regarding the evidentiary effect of the presumption was erroneous. The presumption remains in evidence and the plaintiff will satisfy the burden of persuasion when the defendant fails to offer sufficient rebuttal evidence to overcome the presumption.
    Reversed and remanded.
    1. Negligence — Evidence — Violation of Statute — Violation of Ordinance — Presumptions.
    Violation of a penal statute in a negligence action is prima facie evidence of negligence, creating a rebuttable presumption of negligence, but violation of an ordinance is merely evidence of negligence.

      References for Points in Headnotes

       57 Am Jur 2d, Negligence §§ 245, 246.

       57 Am Jur 2d, Negligence § 8.
    5 Am Jur 2d, Appeal and Error §§ 797, 806.

       57 Am Jur 2d, Negligence § 249.

      2. Trial — Negligence — Instructions to Jury — Statutes — Ordinances — Harmless Error.
    A trial court’s failure to read a statute as part of its charge to the jury, upon proper request of the plaintiff, was error where the plaintiff grounded his case upon violation by the defendants of the statute and of a city ordinance; the error was harmless, however, where the court did read the ordinance to the jury and the ordinance, by its terms, provided that a violation is prima facie evidence of negligence, thus giving it the same effect as the statute (MCL 287.262; MSA 12.512, Detroit City Code § 7-2-3).
    3. Negligence — Violation of Statute — Presumptions — Rebutting Presumptions.
    A presumption of negligence, which arises from a defendant’s violation of a penal statute, may be rebutted by a showing by the defendant of an adequate excuse under the facts and circumstances of the case.
    4. Negligence — Evidence — Presumptions — Burden of Proof — Burden of Persuasion.
    The burden of proof does not shift to the defendant in a negligence action in which the plaintiff has the advantage of a presumption of negligence on the part of the defendant by virtue of the defendant’s violation of a penal statute, but the plaintiff may satisfy the burden of persuasion by use of the ■ presumption, which remains as substantive evidence, and the plaintiff will always satisfy the burden of persuasion when the defendant fails to offer sufficient rebuttal evidence.

      Rader, Eisenberg & Feldman, P.C., for plaintiffs.

      Arthur W. Mitchell, for defendants.
    Before: Bronson, P.J., and R. M. Maher and J. T. Letts, JJ.

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

   Per Curiam.

Helen Hack and her husband brought this tort action to recover for damages incurred as a result of an assault upon Mrs. Hack by defendants’ dog. Plaintiffs alleged that while Mrs. Hack was walking her miniature schnauzer along Livernois in the city of Detroit, the schnauzer was attacked and killed by defendants’ Doberman pinscher. During the affray Mrs. Hack was knocked to the ground, as a result of which she allegedly suffered an injury to her back. Defendants did not deny the attack on plaintiffs’ dog by their dog, but denied liability for any damages on grounds that they were not negligent. Defendants claimed that their dog broke his leash while being exercised by Thomas Foster, Jr., and that the attack took place before Foster could regain control of his dog. From a jury verdict of no cause of action, plaintiffs appeal as of right.

Plaintiffs rested their case in large part on the fact that defendants’ dog was unleashed, in violation of Detroit City Code, § 7-2-1, and MCL 287.262; MSA 12.512, and requested that the relevant portions of each be read to the jury as part of the court’s charge to the jury. The court read the ordinance, but failed to read the statute. Plaintiffs claim that the trial court’s failure to read the statute was prejudicial error because of the different legal effects of a violation of a statute and a violation of an ordinance: violation of a statute is prima facie evidence of negligence, creating a rebuttable presumption of negligence, while violation of an ordinance is merely evidence of negligence, Zeni v Anderson, 397 Mich 117; 243 NW2d 270 (1976).

We agree that it was error for the trial court to fail to read the statute upon timely request. In this case, however, the error was harmless, because § 7-2-3 of the ordinance, which was read to the jury, provides that a violation is prima facie evidence of negligence, thus giving it the same effect as the statute.

Plaintiffs also assign as error the instruction regarding the effect of rebutting evidence on the presumption of negligence raised by violation of the ordinance. After reading the ordinance, the court gave the following instruction:

"Now, the plaintiffs assert that violation of the city ordinance is prima facie evidence of negligence. However, this prima facie presumption of negligence has no weight as evidence. It may establish a prima facie case, but if it is challenged by rebutting evidence, the presumption cannot be weighed against the evidence.” (Emphasis added.)

Plaintiffs’ counsel timely objected to this instruction, protesting that it is not the law in Michigan. We are constrained to agree.

In Zeni v Anderson, supra, the Supreme Court discarded the prior rule that violation of a statute was negligence per se in favor of the rebuttable presumption rule, noting that it was the latter rule which was in fact most often applied in Michigan. The Court in Zeni articulated the rule thus:

"[T]he rule concerning the proper role of a penal statute in a civil action for damages is that violation of the statute which has been found to apply to a particular set of facts establishes only a prima facie case of negligence, a presumption which may be rebutted by a showing on the part of the party violating the statute of an adequate excuse under the facts and circumstances of the case.” Zeni v Anderson, supra, 129-130. (Footnotes omitted. Emphasis added.)

This is the same rule which is incorporated into the Detroit ordinance by § 7-2-3.

The present state of the law in Michigan on rebuttable presumptions was reviewed and clarified in the recent case of Kar v Hogan, 399 Mich 529, 541-542; 251 NW2d 77 (1976):

"The thrust of the Wood [In re Wood Estate, 374 Mich 278; 132 NW2d 35; 5 ALR3d 1 (1965)] case was to change the law in this state concerning the effect that a presumption has after rebuttal evidence has been introduced. Prior to Wood, Michigan held to the "Thayer” or "bubble bursting” approach; that is, the presumption governed only the burden of going forward with evidence and the presumption was totally dissipated if rebuttal evidence was offered. See In re Haskell’s Estate, 283 Mich 513; 278 NW 668 (1938). Wood rejected the "Thayer” approach and adopted the view that once rebuttal evidence was introduced, the presumption, originally a 'mandatory inference’, was reduced to a 'permissible inference’. Unless the defendants’ controverting evidence met the standard for a directed verdict, the presumption, as a 'permissible inference’, was sufficient to get the case before the jury. Wood, supra, 290-291.
"If the trier of fact finds the evidence by the defendant as rebuttal to be equally opposed by the presumption, then the defendant has failed to discharge his duty of producing sufficient rebuttal evidence and the 'mandatory inference’ remains unscathed. This does not mean that the ultimate burden of proof has shifted from plaintiff to defendant, but rather that plaintiff may satisfy the burden of persuasion with the use of the presumption, which remains as substantive evidence, and that the plaintiff will always satisfy the burden of persuasion when the defendant fails to offer sufficient rebuttal evidence.”

The trial court’s instruction in the case at bar utilized the now-discarded "bubble bursting” approach, thus preventing the jury from weighing the presumption against the rebutting evidence. The effect of the presumption arising from the violation of the ordinance and the statute was the crucial issue in the case, and the error in instructing on the law applicable thereto requires reversal.

We have considered plaintiffs’ other claims of error and find them to be without merit.

Reversed and remanded for a new trial. Costs to abide the event.

       The parties did not address the question whether a local legislative body may elevate an ordinance to the evidentiary level of a statute merely by including a provision to that effect in the ordinance. Because of the peculiar circumstances presented, the question need not be decided in the case before us. We therefore express no opinion on the issue.


text:
    PEOPLE v WILLIAM RAMSEY PEOPLE v FAULKNER
    Docket Nos. 77-3459, 77-3460.
    Submitted February 20, 1979, at Detroit.
    Decided March 20, 1979.
    Leave to appeal applied for.
    William G. Ramsey and Roy F. Faulkner were each convicted of felony-murder during the commission of a rape and of premeditated murder, the Recorder’s Court for the City of Detroit, Michael J. Connor, J. Both defendants received two life sentences and both appeal. Held:

    1. The trial court did not err in denying defendant Ramsey’s request to be appointed his own co-counsel. In general, a defendant must choose between his right to court-appointed counsel and his right to conduct his own defense.
    2. It was not error to send the felony-murder and the premeditated murder counts to the jury. The prosecutor did not have to select which count was to go to the jury and double jeopardy was not violated since defendants could ultimately be convicted only on one count.
    3. There was sufficient evidence on which to find a rape.
    4. The jury found defendants guilty on both counts and the court sentenced each defendant on both counts. Two convictions for a single killing violated double jeopardy.
    5. There was a sufficient foundation laid for admitting a gun as evidence and for the court to be satisfied in reasonable probability that the weapon was the same one originally seized and initialed by a police officer. Any breaks in the custodial chain of the gun would go to the weight of the evidence rather than to its admissibility.
    6. The trial court did not abuse jts discretion in prohibiting certain cross-examination into the credibility of the prosecution’s chief witness.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 310.

       21 Am Jur 2d, Criminal Law § 189.

       40 Am Jur 2d, Homicide § 72.

       30 Am Jur 2d, Evidence §§ 774,1080.

       81 Am Jur 2d, Witnesses § 475.

       17 Am Jur 2d, Continuance § 27.

      7. There was no abuse of discretion in the trial court’s denial of defendants’ request for a continuance to enable them to obtain the presence of an out-of-state witness.
    Defendants’ convictions and sentences for felony-murder are reversed and vacated. The convictions and sentences for premeditated murder are affirmed.
    1. Criminal Law — Assistance of Counsel — Standby Counsel — Court Appointed Counsel.
    It is appropriate at times to appoint a standby counsel to assist a criminal defendant who represents himself; however, a defendant must generally choose between his right to court-appointed counsel and his right to conduct his own defense.
    2. Homicide — Constitutional Law — Double Jeopardy — Multiple Counts of Murder.
    A trial court did not place a criminal defendant in double jeopardy by submitting to a jury two separate counts of murder based on one killing where the defendant could ultimately be convicted only on one count; the prosecutor does not have to select which of the two counts to submit to the jury.
    3. Rape — Evidence — Felony-Murder — Appeal and Error.
    Sufficient evidence on which to find a rape was presented in a trial for felony-murder during the commission of a rape where the evidence shows the victim was found with her coat on, her skirt pulled up around her waist, her top open, her underwear pulled off of one leg and half off the other, and there is evidence of sexual intercourse.
    4. Homicide — Double Jeopardy — Single Killing.
    It is double jeopardy to convict and sentence a defendant both on a count of felony-murder during the commission of a rape and on premeditated murder where there has been a single killing.
    5. Criminal Law — Evidence — Admissibility — Chain of Custody — Weight of Evidence.
    A sufficient foundation was presented to satisfy a trial court in reasonable probability that a gun seized by a police officer was the same gun submitted as evidence and thereby overcome the defendant’s objections to its admission on the basis of gaps in the chain of custody where the police officer testified at trial, and the gun contains initials scratched on it by the officer and the same serial number; any breaks in the custodial chain go to the weight of the evidence rather than to its admissibility.
    6. Witnesses — Criminal Law — Cross-Examination — Court’s Discretion — Collateral Issues — Credibility.
    It is within a trial court’s discretion to put a halt to questioning on a collateral issue during cross-examination into the credibility of a prosecutor’s chief witness.
    7. Continuances — Criminal Law — Trial — Witnesses — Court’s Discretion.
    The granting of a continuance to enable a defendant to obtain the presence of an out-of-state witness is within the discretion of the trial court.

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

      Lander C. McLoyd, Assistant State Appellate Defender, for defendants on appeal.
    Before: Allen, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   Per Curiam.

Defendants were charged in a two-count information with felony-murder during the commission of a rape, MCL 750.316; MSA 28.548, and premeditated murder, MCL 750.316; MSA 28.548. A jury returned a guilty verdict on June 13, 1977, but whether the verdict covered both counts or only felony-murder is one of several issues in this appeal. Both defendants received two life sentences and now appeal of right.

Donna DeFoe was killed by a bullet shot from close range through the back of her head on the night of October 28, 1975, or the early morning October 29, 1975. Defendants were arrested on an unrelated charge on November 23, 1975. A .38 Colt Cobra was seized from the car in which defendants were riding at the time of their arrest. In March, 1976, Sterling Brown, the prosecution’s principal witness, informed police that the defendants had previously told him about killing a woman. The gun seized when defendants were arrested in November, 1975, was test fired and found to be the weapon that killed DeFoe. For several reasons, including defendants’ trial on another criminal charge, their trial in the instant case did not begin until May 31, 1977.

Neither defendant testified at trial. Defendant Faulkner presented an extensive alibi defense in which testimony indicated he was playing cards with friends at the time the killing occurred. The defense presented by both defendants tended to show that Sterling Brown actually committed the murder.

A few days before the trial commenced defendant Ramsey requested to be appointed as his own co-counsel. Ramsey told the court he was very pleased that he had his particular counsel, but wanted to be co-counsel in order to talk to witnesses and perhaps make opening and closing statements. The court denied Ramsey’s request. The Supreme Court has recognized that at times a "standby counsel” may be appropriate to assist a defendant who represents himself. Faretta v California, 422 US 806, 834-835, fn 46; 95 S Ct 2525; 45 L Ed 2d 562 (1975). Cf. Chief Justice Burger’s concurrence in Mayberry v Pennsylvania, 400 US 455, 467-468; 91 S Ct 499; 27 L Ed 2d 532 (1971). However, these cases do not stand for the proposition that a defendant has a right to share trial defense responsibilities with an attorney. In general, a defendant must choose between his right to court-appointed counsel and his right to conduct his own defense. People v Joines, 46 Mich App 427, 430; 208 NW2d 193 (1973), rev’d on other ground on remand 55 Mich App 334; 222 NW2d 230 (1974). There was no error in the court’s denial of defendant Ramsey’s request.

As mentioned, defendants were charged with two counts of premeditated murder and felony-murder. The court instructed the jury on both counts. Defendants contend that they were twice placed in jeopardy by the submission to the jury of two separate counts of murder based on one killing. There was no error in sending both counts to the jury. The prosecutor did not have to select which count was to go to the jury, People v Crown, 75 Mich App 206, 211-212; 254 NW2d 843 (1977), and double jeopardy was not violated since defendants could ultimately be convicted only on one count. People v Fullwood, 51 Mich App 476, 481; 215 NW2d 594 (1974).

Relying on People v Crown, 75 Mich App 206, 214-215; 254 NW2d 843 (1977), defendants argue that a verdict of guilty on the felony-murder count but not guilty on the premeditated murder count is reversibly inconsistent. Using the analysis in People v Crown, supra, defendants reason that since second-degree murder is a lesser included offense of both felony-murder and premeditated murder, an acquittal on a premeditated count and a conviction on a felony-murder count also means an acquittal on an underlying second-degree count as well as a conviction on an underlying second-degree count. Hence, defendants conclude the verdict is internally inconsistent.

In this case we do not reach defendants’ conclusion because we differ with defendants’ initial premise, i.e., that the jury reached an acquittal on one count and a conviction on the other. When the jury returned its verdict there was some confusion in the proceedings. The foreman variously announced the guilty verdict as follows:

"Murder in the first degree, felony, murder, rape.” and "Murder in the first degree, criminal felony, rape.”

The court then asked the jurors if they found defendants "guilty of murder in the first degree, guilty of murder in the first degree and guilty of murder in the course of a felony murder”. After the jurors indicated they did, the jury was polled. There was some confusion as to how the clerk should phrase the question to the jurors in polling them. The court explained that first-degree felony-murder was just one of the two counts before the jury. The clerk eventually phrased the question in terms of whether the defendants were found "guilty of first degree murder and murder felony rape”. There was never any objection to the questioning and the verdict was accepted.

We disagree with defendants’ interpretation of the record on appeal. At all times during the trial it was clear there were two counts before the jury. The jury was instructed on both counts. It is reasonable to find that the jurors returned a guilty verdict on both counts, although through a poor choice of words. The questions by the court and the clerk focused on two counts, rather than being a redundantly worded question just on the felony-murder count. The clerk’s use of "first degree murder” referred to the premeditated count.

If defendants’ position were correct it would have resulted in a verdict on just one count when all parties involved knew two counts were involved, with nobody, including the court, inquiring as to the decision on the second count. It would be highly irregular for the court not to make such an inquiry. We are further convinced that the jury’s decision was guilty on both counts because defendants were sentenced, without objection, on both counts. This indicates that the court, counsel and defendants believed the jury had returned a guilty verdict on both counts.

Defendants also suggest that there was insufficient evidence to support the felony-rape count, and since one of the two theories that went to the jury in this allegedly general verdict case was unsound, the decision must be set aside. Defendants cite Stromberg v California, 283 US 359; 51 S Ct 532; 75 L Ed 1117 (1931). In the instant case, however, we have found that the jury returned a verdict on each count rather than a general verdict. We also find there was ample evidence on which to find a rape. People v Olsson, 56 Mich App 500; 224 NW2d 691 (1974). The victim was found lying in an alley with her coat on. Her skirt was pulled up around her waist and her top was open. Her underwear had been pulled off of one leg and was half off of the other. And there was evidence of sexual intercourse. This was sufficient evidence from which the jury could find a rape.

In sum, we find that the jury found defendants guilty on both counts and the court sentenced each defendant on both counts. Two convictions for the single killing violated double jeopardy, therefore, we reverse and vacate the sentence and conviction of each defendant on the felony-murder count. People v Hall, 83 Mich App 632, 637; 269 NW2d 476 (1978), People v Crown, 75 Mich App 206, 215-216; 254 NW2d 843 (1977).

Defendants next point to certain gaps in the chain of custody of the gun and argue that it should not have been admitted. Part of the foundation for admitting the gun was the testimony of the officer who originally seized the gun, that the gun being admitted had the same serial number as the gun he seized as well as having his own initials scratched on it. This was sufficient for the court to be satisfied in reasonable probability that the weapon was the same. People v Beamon, 50 Mich App 395, 398-399; 213 NW2d 314 (1973). Any breaks in the custodial chain would go to the weight of the evidence rather than to its admissibility. People v Full wood, 51 Mich App 476, 482; 215 NW2d 594 (1974).

Defendants contend it was error for the court to prohibit certain cross-examination into the credibility of the prosecution’s chief witness, Sterling Brown. There is no question that the veracity of the various witnesses was crucial in this case. The cross-examination of Sterling Brown was extensive. He was shown to have an extensive criminal record including a conviction for "impersonating” a lawyer and managing to get himself admitted to the bar of the Sixth Circuit Court of Appeals. Eventually the prosecutor objected to continued questioning on, inter alia, instances of Brown’s lying to an attorney, and the objection was sustained. It was in the court’s discretion to put a halt to questioning on the collateral issue. Lehr v Rogers, 16 Mich App 585; 168 NW2d 636 (1969). MRE 608(b). Defense counsel was permitted, and did, elicit the fact that Brown perjured himself to obtain admission to the sixth circuit bar. There was no error here.

Defendants cite three instances during the course of the trial which they construe to be attempts by the prosecutor to impermissibly impeach defendants with prior convictions or other criminal activity. Such impeachment by the prosecutor might well create error, though not automatically so. People v Andrews #1, 52 Mich App 719, 721; 218 NW2d 379 (1974). However, there was no error here since none of the incidents brought out past convictions or other criminal conduct. Defense objections were sustained in each instance before the information was revealed. Furthermore, in the first instance the court (which found the question to require speculation by the witness) instructed the jury to disregard the question; in the second instance defense counsel refused a cautionary instruction and, in the third instance, a cautionary instruction was given.

Finally, defendants argue that it was error to refuse their request for a continuance (and money) to enable them to obtain the presence of an out-of-state witness, defendant Ramsey’s uncle, who allegedly would testify that the murder weapon was in the control of Sterling Brown at the time of the murder. The granting of such a continuance is addressed to the discretion of the trial court. People v Charles O Williams, 386 Mich 565; 194 NW2d 337 (1972), People v Joines, 46 Mich App 427; 208 NW2d 193 (1973), GCR 1963, 503.2. There was no abuse of discretion here. Defendants knew that possession of the weapon was an important factor from the time they were arrested in April, 1976. The trial was not held until June, 1977, and even then, the issue was not raised until the middle of the eighth day of trial. In addition, there was other defense testimony indicating the gun was in Brown’s possession at the time of the murder, which would largely make the additional testimony cumulative.

The defendants’ convictions and sentences for felony-murder are reversed and vacated. The convictions and sentences for premeditated murder are affirmed.

       Although such a situation might be appropriate in some cases, the administrative difficulties inherent in such a scheme are apparent.

       In its brief the prosecution agreed with the defense that the jury returned a verdict of guilty of felony-murder only, but then disagreed with the rest of defendants’ analysis. At oral argument, however, the prosecution argued alternatively that the jury returned a guilty verdict on both counts.

       Our conclusion does not require us to reach the analysis of People v Crown, supra. We do note that significant concerns arise under the case. It is well established that a case can go to the jury on both felony-murder and premeditated murder counts. It is just as well established that double jeopardy bars more than one conviction. The question arises as to just what the jury’s verdict should be. It seems somewhat anomalous not to permit the jury to return a not guilty verdict on one count and a guilty verdict on another when that is precisely the factual decision before it.

       There was also considerable evidence on which to find premeditated murder. The deceased was shot with a pistol at close range in the back of the head, probably while she was kneeling. She was a known prostitute, but at the time of the discovery of the body there was no identification or money on it. As a comment on the preceding issue in the body of the opinion, this case seems very appropriate for a jury decision on whether the murder was premeditated or in the course of a rape.


text:
    AMOCO OIL COMPANY v KRAFT
    Docket No. 78-783.
    Submitted November 22, 1978, at Detroit.
    Decided March 20, 1979.
    Edmund and Margaret Kraft entered into a lease agreement with Standard Oil Company in 1957. The lease gave Standard Oil a fixed price option to buy the leased premises for $60,000 and a right of first refusal to buy the property for the amount contained in any bona fide offer made by a third party. The lease was for ten years and could be renewed at the lessee’s option for two additional terms of five years each. In 1970, after the lease had been extended for five years by Standard Oil and Standard Oil had assigned its interest under the lease to Amoco Oil Company, the Krafts notified Amoco of a bona fide offer from Richard and Lynn Yezbick to purchase the leased premises for $165,000. Amoco declined to exercise its right of first refusal and the property was sold to the Yezbicks. After having extended the lease for its final five-year term, Amoco in 1977 notified the Krafts that it intended to exercise its fixed price option and purchase the property for $60,000. The Krafts refused to convey the property and Amoco brought an action in Macomb Circuit Court, for specific performance, contending that the two options remained independently operative throughout the entire term of the lease and the failure to exercise the first refusal option upon receiving notice of the Yezbick’s offer in excess of the fixed price had no effect on and did not extinguish plaintiffs’ rights under the fixed price option. Defendants claim that the fixed price option was extinguished when Amoco received notification of a bona fide offer higher than the fixed price but refused to exercise its first refusal option and thus allowed the property to be sold to a third party for a price in excess of the fixed price. Summary judgment for defendants, Robert J. Chrzanowski, J. Plaintiff appeals. Held:

    1. The language of the lease clearly indicates that the parties intended to create alternative options of equal stature. There was nothing in the contract to show that the parties intended to make the first refusal option dependent on the fixed price option or to fix a ceiling price on the value of the leasehold. Furthermore, it is more reasonable to interpret the contract to hold that both options continue to be viable until one of them ceases to be merely a contingent interest and instead becomes a vested right, at which time the nonvested option is extinguished.

      References for Points in Headnotes

       17 Am Jur 2d, Contracts §§ 1, 240, 244.

       71 Am Jur 2d, Specific Performance §§ 145, 146.

       71 Am Jur 2d, Specific Performance § 4.

      2. A lessee who declines to exercise his option to purchase property for $60,000 during the first 13 years of a 20-year lease, and then knowingly allows the leasehold to be sold to another for $165,000 by declining to exercise its alternative first refusal option, is certainly not acting according to the principles of equity and fair dealing when in the twentieth and last year of the lease it seeks to reassert its fixed price option and buy the property for $60,000, a price approximately one-third of the leasehold’s fair market value.
    Affirmed.
    1. Contracts — Construction — Intent op Parties.
    The primary rule of construction in construing contracts is to ascertain the intent of the parties.
    2. Contracts — Fixed Price Options — Leases — Bona Fide Purchasers — Waiver — Specific Performance.
    A lessee waived its right to exercise its fixed price option and may not seek to enforce the option by specific performance in a dual option lease situation where both options were of equal stature and where the lessee had full knowledge of a bona fide purchase offer by a third party in excess of the fixed price yet failed to exercise either its fixed price option or its first refusal option and thus allowed the leasehold to be sold for a price in excess of the fixed price.
    3. Specific Performance — Equity — Clean Hands.
    Specific performance is an equitable remedy and the maxim "he who comes into equity must come with clean hands” is applicable; therefore, a lessee who knowingly allows the real estate on which he had a lease with a dual option of purchase at a fixed price or on a first refusal basis to be sold for a price greatly in excess of the fixed price and then later seeks to divest the buyer of the property by offering to pay the fixed price is not acting equitably and is not entitled to specific performance.

      Nunneley, Nunneley, Hirt & Rinehart, P.C., for plaintiff.

      Donald E. Mather, for defendants.
    Before: D. C. Riley, P.J., and Bronson and T. Gillespie, JJ.

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

   Per Curiam.

The sole issue in this case is the construction to be given a dual option lease granting the lessee a fixed price option and a first refusal option.

On May 1, 1957, defendants Edmund and Margaret Kraft entered into a lease arrangement with plaintiff Amoco Oil Company’s predecessor in interest, Standard Oil. The lease gave the lessee, Standard Oil, a fixed price option to buy the leased premises for $60,000 and a right of first refusal to buy the property for the amount contained in any bona fide offer made by a third party. The lease was for a ten-year term commencing December 13, 1957, and could be renewed at the lessee’s option for two additional terms of five years each.

In 1970, after Standard Oil had previously extended the lease for an additional five-year term, the Krafts notified plaintiff that they had received a bona fide offer from defendants Richard and Lynn Yezbick to purchase the leased premises for $165,000. Plaintiff declined to exercise its right of first refusal, and the property was sold to the Yezbicks. After having extended the lease for its final five-year term, plaintiff in 1977 notified defendants that it intended to exercise its fixed price option and purchase the property for $60,000. Defendants refused to convey the property and plaintiff commenced this action for specific performance.

Defendants claim that the fixed price option was extinguished when plaintiff received notification of a bona fide purchase offer higher than the fixed price but refused to exercise its first refusal option and thus allowed the property to be sold to a third party for a price in excess of the fixed price. Plaintiff contends that the two options remained independently operative throughout the entire term of the lease and the failure to exercise the first refusal option upon receiving notice of a third party’s bona fide purchase offer in excess of the fixed price had no effect on and did not extinguish plaintiff’s rights under the fixed price option. The trial court agreed with defendants’ interpretation of the contract and granted their motion for summary judgment. Plaintiff appeals as of right.

In construing contracts, the primary rule of construction is to ascertain the intent of the parties. Klever v Klever, 333 Mich 179; 52 NW2d 653 (1952), McIntosh v Groomes, 227 Mich 215; 198 NW 954 (1924). The language of the lease clearly indicates that the parties intended to create alternative options of equal stature. Under plaintiffs interpretation of the contract, however, the first refusal option would cease to be an independent option and instead be transformed into a secondary option subordinate to the fixed price option. Plaintiffs interpretation would freeze the value of the leasehold at the amount of the fixed price option. No one would be willing to purchase the property for a higher price than the fixed price with the knowledge that he could lose his investment and be divested of the property if plaintiff decided to purchase the property at the lower fixed price. This being the case, plaintiff would never have occasion to exercise its first refusal option, and it would be rendered virtually meaningless. We find nothing in the contract to show that the parties intended to make the first refusal option dependent on the fixed price option or to fix a ceiling price on the value of the leasehold. Therefore, plaintiffs interpretation of the contract cannot stand. See Manasse v Ford, 58 Cal App 312; 208 P 354 (1922), Texaco, Inc v Rogow, 150 Conn 401; 190 A2d 48 (1963).

Conversely, under defendants’ interpretation of the contract, both options continue to be viable until one of them ceases to be merely a contingent interest and instead becomes a vested right, at which time the nonvested option is extinguished. Since defendants’ interpretation of the contract keeps both options independent and viable, it is the more reasonable interpretation of the contract.

There is another factor which militates against plaintiff’s position. Plaintiff seeks specific performance of the fixed price option. Specific performance is an equitable remedy and as in all equitable remedies the maxim, he who comes into equity must come with clean hands, applies. A lessee who declines to exercise his option to purchase the property for $60,000 during the first 13 years of a 20-year lease, and then knowingly allows the leasehold to be sold to another for $165,000 by declining to exercise its alternative first refusal option, is certainly not acting according to principles of equity and fair dealing when in the twentieth and last year of the lease it seeks to reassert its fixed price option and buy the property for $60,000, a price approximately one-third of the leasehold’s fair market value. See Shell Oil Co v Jolley, 130 Vt 482; 296 A2d 236 (1972).

The trial court did not err in granting defendants’ motion for summary judgment.

Affirmed.

       "Lessee shall have, and is hereby given, the option of purchasing said premises, buildings, fixtures, equipment, machinery and appliances included in this lease, for the sum of Sixty Thousand and No/ 100 Dollars ($60,000.00), provided Lessee shall give Lessor notice in writing of its election to exercise said option of purchase at least thirty (30) days prior to the expiration of this lease, or at least thirty (30) days prior to the expiration of any extension period, if this lease be extended, it being understood that in no event may this option be exercised prior to the end of first year of original term. If any part of the demised premises shall be taken by right of eminent domain or by any conveyance in lieu thereof or in connection therewith, the purchase price set forth herein, if the purchase option is exercised, shall be reduced in the same proportion that the area immediately prior to such taking is reduced by the taking. It is further understood that if the Lessor or the Lessor’s heirs, executors, grantees, or assigns, or successors or assigns at any time during the term of this lease or any extension thereof, receives a bona fide offer to purchase said premises or any property which includes the premises, and said buildings, fixtures, equipment, machinery and appliances and desires to sell said premises, buildings, fixtures, equipment, machinery and appliances, or any part thereof under the terms of said offer, Lessor agrees to give Lessee sixty (60) days notice in writing of such bona fide offer, setting forth the name and address of the proposed purchaser who has made the offer, the amount of the proposed purchase price, and all other terms and conditions of such offer, and the Lessee shall have the first option to purchase the demised premises by giving written notice to the Lessor of its intention to purchase within said sixty (60) day period at the same price and on the same terms of any such proposal, it being understood that in the event Lessee does not give notice of its intention to exercise its option to purchase said premises within said period, this Lease and all of its terms and conditions shall nevertheless remain in full force and effect and the Lessor and any purchaser or purchasers of the demised premises shall be bound thereby, and in the event said premises are not sold for any reason pursuant to the bona fide offer set forth in the notice, the Lessee shall have, upon the same conditions of notice, the continuing first option to purchase the said premises upon the terms of any subsequent bona fide offer or offers to purchase.”

       In fact, under plaintiff’s interpretation, the first refusal option would only be viable if the market value of the leasehold was less than the fixed price. Although the fact of whether the market value is greater than or less than the fixed price might be determinative in plaintiff’s decision to exercise its fixed price option or wait for an offer lower than the fixed price and exercise its first refusal option, the fixed price option was not meant to limit the amount of offers or affect the very viability of the first refusal option as opposed to the advisability of its use.

       An option becomes vested when the conditions and procedures specified in the contract are complied with in such a manner as to give the lessee an immediate right to exercise the option, i.e., for the first refusal option plaintiff is given notice of a bona fide offer to purchase from a third party, for the fixed price option the lessee notifies the lessor at least 30 days prior to the termination of the contract that he intends to purchase the property for the contract price.


text:
    PEOPLE v DOLEN
    Docket No. 26806.
    Submitted March 3, 1977, at Grand Rapids.
    Decided July 11, 1977.
    Brian Dolen was convicted of negligent homicide, Calhoun Circuit Court, Creighton R. Coleman, J. The defendant appeals challenging the trial court’s instructions to the jury on the issue of proximate cause. Held:

    A review of the entire instructions indicates that any error in the instructions on proximate cause was in the defendant’s favor. The notion that a defendant’s negligent driving must be the sole and only proximate cause of a fatal accident in order for him to be found guilty is legally unsupportable.
    Affirmed.
    1. Homicide — Negligent Homicide — Proximate Cause — Motor Vehicles.
    A defendant’s negligent driving need not be the sole and proximate cause of a fatal accident in order for the defendant to be found guilty of negligent homicide.
    2. Homicide — Negligent Homicide — Contributory Negligence.
    Contributory negligence of a deceased is no defense to a charge of negligent homicide.
    3. Homicide — Negligent Homicide — Instructions to Jury — Causation.
    An instruction to the jury in a negligent homicide trial which informs the jury that a conviction for negligent homicide requires a finding that the defendant’s negligence caused the fatal accident is sufficient on the issue of proximate cause.
    References for Points in Headnotes

       8 Am Jur 2d, Automobiles and Highway Traffic § 1006.

       22 Am Jur 2d, Death § 109.

       40 Am Jur 2d, Homicide §§ 93, 506.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James Norlander,
      Prosecuting Attorney, and Roger L. Caswell, Assistant Prosecuting Attorney, for the people.

      Barbara R. Levine, Assistant State Appellate Defender, for defendant on appeal.
    Before: R. M. Maher, P.J., and D. E. Holbrook, Jr., and J. T. Letts, JJ.

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

   Per Curiam.

Defendant was tried before a jury on a charge of negligent homicide, MCL 750.324; MSA 28.556. The jury found defendant guilty. The court sentenced defendant to 16 to 24 months imprisonment. Defendant appeals.

In the late afternoon on December 8, 1974, defendant attempted to pass another vehicle on M-60 in Homer, Calhoun County. His automobile collided with an oncoming automobile driven by Gail Vroman. Gail’s sister Kathryn Jo Vroman was her passenger and died from injuries she received in the accident.

The prosecution’s theory was that defendant was intoxicated and driving at an excessive speed. The defense contended that the Vroman automobile did not have its headlamps on and that defendant exercised due care in attempting to pass the vehicle in front of him. Testimony about defendant’s intoxication and his rate of speed conflicted. Also conflicting was testimony whether the headlamps on the Vroman automobile were illuminated.

On appeal, defendant challenges only the court’s instructions to the jury. The court refused to give several instructions- that defendant requested, including one instructing the jury that in order to convict they must find that defendant’s driving was the sole and only proximate cause of Kathryn Jo Vroman’s death. The court did instruct the jury that a conviction required that they must find that Gail Vroman’s driving was not a proximate cause of the fatal accident. The court then defined proximate cause:

"When I use the words 'proximate cause,’ I mean, first, that there must be a connection between that conduct of the defendant which the prosecution claims was negligent, careless or reckless, and the death of Kathryn Vroman, and, second, that the occurrence which is claimed to have produced that death was a natural and probable result of such conduct by the defendant, and the same definition of proximate cause also applies to the conduct of Gail Vroman, the driver of the other vehicle.”

The court then attempted to explain further to the jury how their assessment of Gail Vroman’s conduct should affect their verdict. It is as to this explanation that defendant now assigns error.

The court pointed out that there can be more than one proximate cause to an accident. If the jury found "that the defendant is guilty of negligent homicide as defined herein, and that his conduct was a proximate cause of the accident and therefore of the death of Kathryn Vroman”, they were told then to consider the conduct of Gail Vroman. If the jury found her "guilty of conduct for which you could find her guilty of negligent homicide, as defined herein”, and also found that her conduct was a proximate cause of the accident, then they could not return a verdict of guilty. A finding of two proximate causes of the accident, the court told the jury, prevented a verdict of guilty against defendant.

In telling the jury that proximate cause was to be considered if they determined that defendant was guilty of negligent homicide and if they determined Gail Vroman "was guilty of conduct for which you could find her guilty of negligent homicide”, the court appeared to suggest circular reasoning. The court had earlier made clear to the jury, however, that causality must be shown before there can be guilt. Defense counsel did not request a clarification from the court. We think it proper to assume that he, as well as the jury, understood the court to mean that a finding of negligent driving, not negligent homicide, must precede a determination of proximate cause.

Defense counsel did not object to the instruction on the basis that it unnecessarily asked the jury to make a difficult decision about Gail Vroman’s criminal culpability for the death of her sister. He himself had said, in closing argument, that "[TJhere is no reason why they couldn’t have prosecuted her just as well”.

Review of the entire instructions indicates that where they were erroneous, the error was in defendant’s favor. It is possible that the Vroman vehicle was a cause of the accident and yet Gail Vroman’s operation of the vehicle might not be considered negligent. For example, an unexpected mechanical malfunction may have had something to do with the accident. But, in instructing the jury that if they found her negligent driving was a proximate cause of the accident, they must find defendant not guilty, the court provided defendant with a legally unwarranted basis for avoiding guilt. The notion that a defendant’s negligent driving must be "the sole and only proximate cause” of a fatal accident in order for him to be found guilty of negligent homicide is legally unsupportable.

People v Scott, 29 Mich App 549, 558; 185 NW2d 576 (1971), initiated the recent view that for conviction of negligent homicide, defendant’s negligence must be "the only direct and proximate cause of the ensuing homicide”. People v Jeglum, 41 Mich App 247; 199 NW2d 854 (1972), and People v Buck, 71 Mich App 28; 246 NW2d 351 (1976), express approval for this "principle” found in Scott. But Jeglum and People v Ebejer, 66 Mich App 333; 239 NW2d 604 (1976), cases in which it was alleged that the deceased was contributorily negligent, reveal the error in Scott. Jeglum and Ebejer both recognized that contributory negligence of the deceased is no defense to a charge of negligent homicide. People v Clark, 295 Mich 704; 295 NW 370 (1940), People v McMurchy, 249 Mich 147; 228 NW 723 (1930), People v Fredericks, 30 Mich App 357; 186 NW2d 376 (1971). If the existence of another proximate cause of the fatal accident precludes a verdict of guilty against defendant, contributory negligence would be a good defense.

In holding that reversible error occurred when the jury was told that conviction did not require that defendant’s conduct was the only proximate cause of the fatal accident, Scott placed heavy reliance on Commonwealth v Root, 403 Pa 571; 170 A2d 310; 82 ALR2d 452 (1961). Root, while unwilling to apply in criminal cases the attenuated causal connection that often sufficed for civil liability, certainly did not announce a rule that in negligent homicide cases the defendant’s conduct must be the sole proximate cause of the fatal accident. Chief Justice Jones wrote: "Of course there can be more than one proximate cause of death just as there can also be more than one direct cause of death.” 403 Pa at 578-579. Root requires that defendant’s conduct be the direct cause of the death in issue for a conviction; it is not necessary that a jury find defendant’s conduct to be the only direct cause. What Root rejects is the notion of proximate cause found in civil cases.

The imprecise concept of proximate cause does not become precise by qualifying it with "sole” or "only”. Such qualification produces a phrase that, if not senseless, is at least extremely difficult to comprehend and utilize. It is sufficient to inform the jury that conviction for negligent homicide requires a finding that defendant’s negligence caused the fatal accident. People v Paulen, 327 Mich 94, 99; 41 NW2d 488 (1950).

Defendant was deprived of no substantial right because of the court’s instructions. The instructions, instead, provided the jury with an unnecessary ground for finding him innocent.

Affirmed.