author: D. F. Walsh, J. M. E. Clements, J.

text:
    SABRAW v MICHIGAN MILLERS MUTUAL INSURANCE COMPANY BULLOCK v MICHIGAN MILLERS MUTUAL INSURANCE COMPANY CSUTORA v MICHIGAN MILLERS MUTUAL INSURANCE COMPANY HANSEN v MICHIGAN MILLERS MUTUAL INSURANCE COMPANY WAUGH v MICHIGAN MILLERS MUTUAL INSURANCE COMPANY
    Docket Nos. 77-495, 77-496, 77-497, 77-498, 77-499, 77-500.
    Submitted June 21, 1978, at Lansing.
    Decided December 8, 1978.
    Leave to appeal applied for.
    An explosion occurred at a feed mill owned by Farm Bureau Services. Several employees were killed or injured in the explosion. Complaints for damages were brought in Saginaw Circuit Court by Alvia G. Sabraw, administratrix of the estate of Lowell T. Sabraw, Helen J. Bullock, administratrix of the estate of Clarence Bullock, Michael Csutora, for himself and as administrator of the estate of Alex Csutora, James and Pauline Hansen, and Donald H. Waugh against Michigan Millers Mutual Insurance Company and others. The cases were consolidated for trial. The jury returned verdicts in favor of each plaintiff, but upon motion of Michigan Millers, Joseph R. McDonald, J., entered judgment notwithstanding the verdict in favor of Michigan Millers. The plaintiffs appeal. Held:

    The evidence regarding the defendant’s inspections of the feed mill and the knowledge of the parties was sufficient to justify the jury’s verdict. The question of whether the defendant gratuitously undertook to inspect the mill for fire hazards is a question of fact upon which there was ample evidence presented. The trial court erred' in granting the judgment notwithstanding the verdict.

      References for Points in Headnotes

       46 Am Jur 2d, Judgments § 117.
    Practice and procedure with respect to motions for judgment notwithstanding or in default of verdict under Federal Civil Procedure Rule 50(b) or like state provisions. 69 ALR2d 449.

       44 Am Jur 2d, Insurance §§ 1182, 1413.
    Liability insurance: "accident or accidental” as including loss resulting from ordinary negligence of insured or his agent. 7 ALR3d 1262.

      Reversed and remanded for reinstatement of the jury verdicts.
    M. E. Clements, J., dissented. He would hold that the trial court was within its authority in determining the issue of the defendant’s duty to the employees as a matter of law because there was insufficient evidence presented to create a jury question on the issue of whether the defendant had voluntarily assumed a duty toward the employees, and that the entry of judgment notwithstanding the verdict was proper.
    Opinion of the Court
    1. Judgment — Judgment Notwithstanding the Verdict — Evidence —Question of Fact.
    The grant of a defendant’s motion for a judgment notwithstanding the verdict is appropriate only if the evidence is insufficient as a matter of law to support a judgment for the plaintiff, giving the plaintiff the benefit of every reasonable inference that can be drawn from the evidence; if reasonable men could honestly disagree as to whether the plaintiff has satisfied his burden of proof on the necessary elements of his cause of action, a judgment notwithstanding the verdict is improper.
    2. Negligence — Insurers—Safety Inspections.
    An insurance carrier may be held liable for consequences proximately caused by its negligent safety inspections.
    3. Judgment — Judgment Notwithstanding the Verdict — Evidence —Question of Fact.
    A judgment notwithstanding the verdict, in favor of a defendant fire insurer of a feed mill in which the plaintiffs were injured when a dust explosion occurred in the mill, was improper where there was a question of fact as to whether the insurer gratuitously undertook to inspect the mill for fire hazards, upon which point there was ample evidence, and where the jury reasonably could have concluded that the insurer’s actions constituted want of reasonable care or that the insurer’s failure to detect and warn of the dangers in the mill caused the plaintiffs’ injuries.

      Dissent by M. E. Clements, J.
    4. Judgment — Judgment Notwithstanding the Verdict — Insurance — Duty—Evidence.

      A trial court properly determined the issue of duty as a matter of law by granting a defendant property insurer a judgment notwithstanding the verdict in an action for injuries and wrongful death to employees of the insured where the defendant insurer had made safety inspections of a feed mill directed at preventing ñre, where there was insufficient evidence presented to create jury questions on the issue of whether the insurer had voluntarily assumed a duty toward the feed mill employees and where there was undisputed evidence that the insurer exercised no control in the feed mill with regard to employee safety.

      Cicinelli, Mossner, Majoros & Alexander, P.C., for plaintiffs Sabraw, Bullock, Csutora and Hanes.

      Martin & Martin, for plaintiff Waugh.

      Otto & Otto, and Purcell, Tunison & Cline, P.C., for defendant.
    Amici Curiae: Joselyn, Rowe, Jamieson & Grin-nan, P.C., for the Alliance of American Insurers, American Insurance Association and National Association of Independent Insurers.
    Before: R. B. Burns, P.J., and D. F. Walsh and M. E. Clements, JJ.

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

   D. F. Walsh, J.

Plaintiffs appeal by right from the trial court’s entry of judgment notwithstanding the verdict in favor of defendant Michigan Millers Mutual Insurance Company.

The complaints arose out of an explosion at Farm Bureau Services’ Zilwaukee Feed Mill on September 15, 1969. Three of the plaintiffs were injured in the explosion; the other three plaintiffs represent the estates of persons killed in the explosion. All of the casualties were employees of Farm Bureau at the time of the accident.

Defendant Michigan Millers was the fire insurance carrier for the Zilwaukee mill.

Plaintiffs’ individual actions were consolidated for trial. Jury verdicts rendered in favor of each plaintiff were set aside by the trial court on the basis that the evidence was insufficient to raise a question of fact for jury determination. The propriety of the, trial court’s action is the only issue we shall address.

A judgment notwithstanding the verdict on defendant’s motion is appropriate only if the evidence is insufficient as a matter of law to support a judgment for the plaintiff. Jackson v Fox, 69 Mich App 283; 244 NW2d 448 (1976). In making that determination, the court must give the plaintiff the benefit of every reasonable inference that could be drawn from the evidence. Kroll v Katz, 374 Mich 364; 132 NW2d 27 (1965). If reasonable men could honestly disagree as to whether the plaintiff has satisfied his burden of proof on the necessary elements of his cause of action, a judgment notwithstanding the verdict is improper. Kroll v Katz, supra; Jackson v Fox, supra.

Plaintiffs’ cause of action was premised on 2 Restatement Torts, 2d, § 324A, p 142:

"One who undertakes, gratuitously or for consideration to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
"(a) his failure to exercise reasonable care increases the risk of harm, or
"Ob) he has undertaken to perform a duty owed by the other to the third person, or "(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” (Emphasis supplied.)

That section has been held to apply to insurance carriers so as to render them liable for consequences proximately caused by their negligent inspections; e.g., Olkowski v Aetna Casualty & Surety Co, 53 Mich App 497; 220 NW2d 97 (1974), aff’d 393 Mich 758; 223 NW2d 296 (1974), Megge v Lumbermens Mutual Casualty Co, 45 Mich App 119; 206 NW2d 245 (1973), Ray v Transamerica Ins Co, 46 Mich App 647; 208 NW2d 610 (1973). We shall review the evidence to determine whether it was sufficient to support the jury’s verdicts. In making that determination we accept as facts those conclusions reasonably inferable from the evidence.

All parties agreed that the most likely cause of the mill explosion was the ignition of dust particles by the exhaust pipe of a four-wheeled industrial truck referred to as a "Bobcat”. The gist of the plaintiffs’ case was that a reasonably careful inspection by the defendant’s field representative, would have detected that danger and prevented the explosion._

It was undisputed that the defendant’s field representative had conducted numerous inspections of the mill for the purpose of detecting fire hazards. He knew that a number of employees worked in the building and that they would be harmed by fire or explosion. He was aware of the explosive potential of the dust and was overtly concerned with detecting and eliminating possible sources of ignition.

The Bobcat constituted an ignition hazard and should not have been used indoors. Although it was used almost exclusively indoors, defendant’s field representative stated that he had never seen it inside in the course of any of his inspections. Consequently, he never adverted to it as a fire hazard in his reports to his superiors or in his discussions with Farm Bureau’s management.

Although Farm Bureau had its own safety program, it had no fulltime safety director. Consequently, insurance carriers were relied upon to some degree to point out safety problems. The mill’s representative to the safety committee for the Zilwaukee complex was under the impression that defendant’s field representative was inspecting for the employees’ safety and he relied on those inspections. Two Farm Bureau executives testified that they had not received any urgent warning of imminent danger of explosion or fire at the mill.

We find the foregoing evidence sufficient to justify the jury’s verdicts. Whether the defendant gratuitously undertook to inspect the mill for fire hazards is a question of fact, Andrews v Insurance Company of North America, 60 Mich App 190; 230 NW2d 371 (1975), remanded for reconsideration, 394 Mich 464; 231 NW2d 645 (1975), Megge, supra, and the evidence was ample on that point. Furthermore, defendant’s field representative admitted that he realized the danger that fire and explosion posed for the mill’s employees.

From the number and extent of the inspections, the frequency with which the Bobcat was used indoors, and its apparent danger as an ignition hazard, the jury could have reasonably concluded that the inspector’s failure to notice the Bobcat or to realize its dangerousness constituted want of reasonable care. See Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977). Similarly, the jury reasonably could have found that the failure to detect and warn of the danger posed by the Bobcat caused the plaintiffs’ injuries by "cloak[ing] the defect, [or] dull[ing] the call to vigilance”, Ray, supra, 658, because of the reliance of either Farm Bureau or the plaintiffs on the defendant’s inspections to disclose such a serious hazard.

Although we are bound by a clear line of precedent, we view the result in the instant case with some reservation because of its possible impact upon the inspection practices of fire insurers. The Legislature might be well-advised to consider action comparable to that taken with respect to worker’s compensation carriers. MCL 418.131; MSA 17.237 (131), MCL 418.827(8); MSA 17.237 (827)(8). Until it does so, however, fire insurance carriers remain subject to common law liability for damages resulting from negligent inspections under those circumstances enumerated in 2 Restatement Torts, 2d, supra.

Reversed and remanded for reinstatement of the jury verdicts. Costs to appellants.

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

M. E. Clements, J.

(dissenting). Plaintiffs appeal from entry of judgment notwithstanding the verdict in favor of the defendant.

A review of the record indicates to this writer that the trial judge did not err in granting JNOV.

The relationship between Michigan Millers and plaintiffs’ employer Farm Bureau Services was clear. Michigan Millers provided property insurance and its safety inspections were directed at preventing fire and collaterally, as a result, the protection of workers upon the premises. The trial judge was within his authority in determining the issue of duty as a matter of law. Ray v Transamerica Ins Co, 46 Mich App 647; 208 NW2d 610 (1973).

The testimony of the defendant’s inspector was unequivocal. His inspections were designed solely to protect against Michigan Millers having to pay under the fire insurance policy it issued to Farm Bureau Services. The inspector had elsewhere conducted employee safety inspections, which were more extensive than those conducted in the Zil-waukee feed mill. The inspector’s testimony that he never saw the Bobcat which provided the ignition source for the explosion inside the mill was not contradicted.

Additionally, the testimony of Farm Bureau Services officials convinces me that Farm Bureau Services did not rely on Michigan Millers concerning employee safety. William Callum, for example, testified that Farm Bureau Services never accepted the inspector’s findings without doing its own independent investigation. There was a safety committee to which the Zilwaukee feed mill sent a representative.

As in Smith v Allendale Mutual Ins Co, 79 Mich App 351; 261 NW2d 561 (1977), I would affirm entry of JNOV for defendant fire insurance company. There was insufficient evidence presented at trial to create jury questions on the issue of whether defendant had voluntarily assumed a duty towards the feed mill employees. Evidence was undisputed that defendant exercised no control in the feed mill with regard to employee safety. Andrews v Insurance Company of North America, 60 Mich App 190; 230 NW2d 371 (1975), remanded, 394 Mich 464; 231 NW2d 645 (1975), Watson v Employers Ins Co of Wausau, 50 Mich App 597; 213 NW2d 765 (1973).

The plaintiffs presented no evidence that defendant had undertaken any obligation towards the feed mill employees. The threshhold element of a cause of action premised on 2 Restatement of Torts, 2d, § 324A was therefore not proven.

I respectfully dissent and vote to affirm.

       Fireman’s Fund Insurance Company, the worker’s compensation carrier for the mill, was originally named as a defendant but was granted a directed verdict which plaintiffs have not appealed. Mill and Elevator Mutual Insurance Company, Michigan Millers’ rein-surer, was a third-party defendant. Insofar as neither of the above parties are involved in this appeal, we shall hereinafter refer to Michigan Millers as the defendant.

       Our disposition of this issue obviates the necessity of considering plaintiffs’ claim that certain evidence was erroneously excluded.

       Defendant seeks to distinguish these cases as imposing liability only upon worker’s compensation carriers, and points to Smith v Allendale Mutual Ins Co, 79 Mich App 351; 261 NW2d 561 (1977), as support for the proposition that employees’ injuries are not included within the orbit of risk created by inspection for fire hazards. Neither contention is correct.
      Nothing in 2 Restatement Torts, 2d, § 324A, or in the line of cases beginning with Ray v Transamerica Ins Co, 46 Mich App 647; 208 NW2d 610 (1973), suggests any principled basis for excluding from liability a fire insurance carrier whose negligent inspection results in a fire which injures foreseeable plaintiffs. In such a case liability does not attach because the fire insurer is held responsible for employee safety per se, but rather because plaintiffs’ injuries resulted from the ñre insurance carrier’s failure to use due care in inspecting for ñre hazards.

        Smith, supra, illustrates this point. In that case plaintiff was injured as the result of an electrical malfunction in an overhead crane. Defendant fire insurer was held not liable because the injury was not caused by a fire hazard.
      “Allendale Mutual did provide fire insurance to Great Lakes Steel, and its agent, Factory Mutual, did inspect the plant for fire hazards; however, the inspections were limited in both scope and purpose.

        "Factory Mutual was concerned with the detection of fire hazards and employed individuals who were specially trained in this area. The employees of Factory Mutual had no training in the area of employee safety nor did they hold themselves out as making inspections for this purpose. Factory Mutual did not inspect the electrical equipment or the cranes because they contained virtually no combustible material. Furthermore, it did not make any difference to Factory Mutual if the circuits around the cranes were grounded or ungrounded because neither posed a ñre hazard. ” Id. at 356. (Emhasis added.)
      The instant defendant thus is correct in asserting that the scope of its inspection was limited, but it focuses on the wrong parameter. Liability is not circumscribed by what was injured (i.e., property or persons) but by how it was injured (whether the damage was caused by a hazard within the scope and purpose of the inspection). If anything, the reasoning in Smith provides support for imposing liability in the instant case, since plaintiffs’ injuries derived from a hazard patently within the scope and purpose of defendant’s inspection.

       Plaintiffs will prevail on appeal if any one of their theories of liability is supported by the evidence. Consequently, we shall not attempt to assess the evidentiary support of additional theories once we determine one to have sufficient proof to create a jury question on each of its elements.

       The mill’s production operation consisted of converting raw ingredients such as corn, oats, wheat and soybeans into food concentrate for cattle, chickens and pigs. Most of the raw ingredients received at the mill were finely ground powdery material which was highly explosive at 10-15% concentration in the air.

       More precisely, the theory generally accepted by the parties was that the explosion was caused when the Bobcat muffler ignited particles of ground corncob, some of which fell unnoticed and was buried in unignited material. That material was dumped into a hopper and carried upward into storage bins where it rose to the surface and ignited adjacent dust.

       Defendant’s field representative conducted between 22 and 30 inspections of the mill between 1963 and 1969, including 6 inspections in the 9 months preceding the explosion. The average duration of the inspections was between one and two hours.

       Defendant’s field representative estimated its explosive potential as seven times that of dynamite.

       He testified that he had been concerned about possible ignition from a cigarette, a match or even a spark from a nail on a workman’s shoe. At his suggestion, "No Smoking” signs had been posted at various locations in the mill.

       Plaintiffs’ expert witness testified that the use of the Bobcat inside the mill was entirely improper because of its propensity for initiating fires or explosions; only explosion-proof electrical trucks with sealed equipment should have been used.

       Defendant’s field representative testified that in February of 1969 he forcefully informed the Farm Bureau management that the amount of dust in the mill at that time constituted an alarming risk of immediate explosion. At that point he renewed with increased urgency his suggestion that Farm Bureau install a dust control system. For his efforts he received a reprimand from his superiors for not "going through channels”. Farm Bureau received a written apology from the defendant. No dust control system was installed because of the economic ramifications of closing the plant for 30 days to permit installation.
      Although the field representative’s recognition of the danger of the dust is analytically distinct from his negligence in not detecting the danger posed by the Bobcat, Farm Bureau’s dilatory conduct in tolerating the danger posed by the dust for purely economic motives was irresponsible to say the least. Its attitude was reminiscent of the "public be damned” philosophy that dominated a bygone era, and the current framework of the worker’s compensation law in this state insulates it from the economic ramifications of its recklessness. It may be that the Legislature should consider enacting penalty provisions such as exist in 14 other states which impose increased liability for such egregious conduct. See 2A Larson, Workmen’s Compensation Law, § 69.10.

       We are not suggesting that the theory of liability described in the text is the only one supportable by the evidence. See fn 3, supra. Nor are we unaware of the amount and probative force of the defendant’s evidence. We have consciously restricted ourselves to the minimum factual exposition necessary to decide the issue before us — a more encompassing summary of the voluminous record before us is both impractical and legally unnecessary.

         But see Ray v Transamerica Ins Co, 46 Mich App 647; 208 NW2d 610 (1973).


source: Caselaw Access Project

author: Cynar, J. M. J. Kelly, P.J.

license: Public Domain

text:
    PEOPLE v DILLON
    Docket No. 77-3329.
    Submitted August 31, 1978, at Lansing.
    Decided December 8, 1978.
    Leave to appeal applied for.
    Defendant, Samuel Dillon, was charged with armed robbery and possession of a firearm during the commission of a felony and pled guilty to the armed robbery in return for dismissal of the felony-firearm charge, dismissal of other, unrelated charges from a separate incident and a promise not to proceed against defendant as a habitual offender in the Ingham Circuit Court, Jack W. Warren, J. Defendant appeals alleging an illusory plea bargain and insufficient evidence to bind him over. Held:

    1. Failure of a defendant to have raised the issue of the sufficiency of evidence to bind him over for trial constitutes a failure to preserve that issue for appeal.
    2. Since the defendant could have been convicted of both charges, to plead to one charge in return for a dismissal of the felony-firearm charge did not constitute an illusory plea bargain.
    Affirmed.
    M. J. Kelly, P.J., dissented. He would hold that defendant may not have been properly convicted of both charges, would hold defendant’s plea to have been involuntary and would reverse and remand for trial on the armed robbery charge alone.
    Opinion of the Court
    1. Appeal and Error — Criminal Law — Evidence—Preliminary Examination — Sufficiency of Evidence — Preserving Question.
    The issue of the sufficiency of evidence produced at a defendant’s preliminary examination must be raised at the trial court level to preserve it for appeal.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 449.
    5 Am Jur 2d, Appeal and Error §§ 607-611.

       21 Am Jur 2d, Criminal Law § 188.

       21 Am Jur 2d, Criminal Law § 189.

      2. Constitutional Law — Criminal Law — Double Jeopardy — Armed Robbery — Legislature—Firearms—Minimal Punishment— Felonies — Separate Statutes — Statutes.
    The double jeopardy clause does not prohibit a Legislature from amending an armed robbery statute, to add as a proviso that there be a minimal punishment where the dangerous weapon is a firearm, in order to make certainty of minimal punishment the standard where firearms are involved in the commission of felonies; and there is no double jeopardy impediment to the Legislature’s attainment of this same goal by a separate statute making it a felony to possess a firearm at the time of the commission of any felony not explicitly excluded by the statute (MCL 750.227b; MSA 28.424[2]).
    3. Criminal Law — Felonies—Felony-Firearm—Legislative Intent —Two Convictions — Multiple Punishment — Statutes.
    The Legislature has clearly provided for two convictions and a minimum two-year sentence where a person commits or attempts to commit a felony, not expressly excluded in the felony-firearm statute, while in possession of a firearm; since the legislative intent is clear, there can be no multiple punishment problem, or possibility of the court cumulating punishment, where a defendant is convicted of armed robbery and possession of a firearm during the commission of the robbery (MCL 750.227b; MSA 28.424[2]).
    Dissent by M. J. Kelly, P. J.
    4. Criminal Law — Constitutional Law — Double Jeopardy — Felony-Firearm — Dual Convictions.

      Conviction of a defendant on two counts, one for armed robbery and one for felony-firearm arising out of the same incident, wherein the prosecution’s responsibility is to prove the same elements for each offense violates the prohibitions against double jeopardy embodied in the state and Federal constitutions.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, and Michael G. Woodworth, Chief Appellate Attorney, for the people.

      Barry F. DeVine, for defendant on appeal.

      Before: M. J. Kelly, P.J., and Beasley and Cy-nar, JJ.
   Cynar, J.

Defendant was charged in a two-count information with armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). On June 6, 1977, he pled guilty to the armed robbery charge in return for a promise to dismiss the felony-firearm charge and other charges arising out of a separate, unrelated incident and a promise not to proceed against defendant as a habitual offender. On July 8, 1977, defendant was sentenced to a term of 10 to 20 years imprisonment. He now appeals as a matter of right.

Defendant first contends that there was insufficient evidence to bind him over on the felony-firearm charge. This issue was not raised before the Circuit Court judge and therefore, is not properly before this Court. People v McIntyre, 74 Mich App 661, 664-665; 254 NW2d 603 (1977). Furthermore, the complaining witness’s testimony that a pistol was used to effect the robbery is sufficient to support the bindover.

Defendant next contends that the felony-firearm statute, MCL 750.227b; MSA 28.424(2), is unconstitutional as a violation of double jeopardy. This issue has recently engendered considerable controversy and has led to a split of opinion within this Court. Compare Wayne County Prosecutor v Recorder’s Court Judge, 85 Mich App 727; 272 NW2d 587 (1978), and People v Gary Hughes, 85 Mich App 674; 272 NW2d 567 (1978). We are of the opinion that the view expressed in People v Gary Hughes is the better reasoned analysis. The Legislature, not the judiciary, is the proper body to define crimes and fix punishments. Brown v Ohio, 432 US 161, 165; 97 S Ct 2221, 2225; 53 L Ed 2d 187 (1977). When it appears that the Legislature did not intend a defendant to be cumulatively punished for different aspects of the same act, cumulative punishment is inappropriate. Simpson v United States, 435 US 6; 98 S Ct 909; 55 L Ed 2d 70 (1978). In addition, certain presumptions have arisen in favor of defendants when the Legislative intent is unclear. See People v Robinson, 80 Mich App 559, 566; 264 NW2d 58 (1978).

However, in those situations where the Legislature intended that a defendant be punished for different aspects of the same act, the double jeopardy clause has not been used as a bar to such punishment.

In the present case the Legislature clearly intended that a defendant who possesses a firearm during the course of a felony be punished for both the felony and the possession of the firearm. This intent is evidenced by the consecutive sentencing requirement and the mandatory two-year sentence for the possession of the firearm. Although the statutory goal might better have been accomplished by enacting a sentence-enhancement scheme similar to that of the habitual offender act, MCL 769.10-769.13; MSA 28.1082-28.1085, the failure to draft the felony-firearm statute in such a manner does not render it constitutionally infirm. See Gore v United States, 357 US 386, 392-393; 78 S Ct 1280; 2 L Ed 2d 1405 (1958). Therefore, we concur with other panels of this Court and uphold the validity of the felony-firearm statute. See People v Gary Hughes, supra and People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978). Since defendant could have been convicted of both charges in the information, his plea to one charge in return for dismissal of the other does not constitute an illusory plea bargain.

Affirmed.

Beasley, J., concurred.

M. J. Kelly, P.J.

(dissenting). I dissent for the reasons cited in Judge Kaufman’s dissent in People v Drake Johnson, 85 Mich App 752; 272 NW2d 599 (1978), and in People v Mitchell, 85 Mich App 757; 272 NW2d 601 (1978).

I believe two convictions on identical proofs through the use of separate counts violates the prohibition against double jeopardy in the Michigan and Federal Constitutions. I would find defendant’s guilty plea involuntary, set it aside and remand for trial on the armed robbery charge only.


author: R. M. Maher, J.

text:
    PEOPLE v DERRICK SMITH
    Docket No. 27739.
    Submitted November 8, 1978, at Detroit.
    Decided December 8, 1978.
    Derrick Smith was convicted of murder in the first degree in the perpetration of a robbery, Recorder’s Court of Detroit, Elvin L. Davenport, J. The defendant appeals, alleging, among other things, that 1) he was deprived of his right to a fair trial and of his right to confront the witnesses against him when the trial court admitted into evidence, over defendant’s objection, hearsay evidence that the two persons whom the defendant claimed committed the offense were incarcerated in Georgia at the time that the victim was killed, 2) the trial court erred in not instructing the jury, sua sponte, on the included offense of second-degree murder, 3) the trial judge erred when he instructed the jury that the element of malice is imputed from the perpetration of the robbery, 4) the instruction to the jury on aiding and abetting was erroneous and misleading, and 5) the trial judge erred in ruling that the defendant could be impeached, if he took the stand in his own behalf, for the offense of "larceny from a building”, an offense of which the defendant claims he was not convicted. Held:

    1. The testimony of a police officer that the two persons, who the defendant claimed were the perpetrators of the offense, were incarcerated in Georgia at the time of the offense, was hearsay testimony and did not fit any of the exceptions to the hearsay rule. Since this testimony was neither merely cumulative nor corroborative of earlier testimony, it was not harmless error. Therefore the defendant’s conviction is reversed and the matter remanded.
    2. The trial court erred in failing to instruct the jury, sua

      sponte, on the lesser offense of second-degree murder. If there is a retrial such an instruction should be given.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence §§ 493, 497.

       30 Am Jur 2d, Evidence § 991.

       5 Am Jur 2d, Appeal and Error §§ 800, 801, 803.

       40 Am Jur 2d, Homicide § 525.

       40 Am Jur 2d, Homicide § 72.

      3. The instruction to the jury that malice could be imputed from the perpetration of the robbery was improper. In event of retrial the judge should instruct the jury that the defendant can be convicted of first-degree felony murder only if the jury has found that the killing was done with malice.
    4. The instructions on aiding and abetting were lacking in some areas and the trial court should use CJI 8:1:01 on retrial to avoid any confusion in the minds of the jurors.
    5. The trial court did recognize that it had discretion to allow the defendant to be impeached if he elected to testify, by introducing a previous conviction for larceny in a building. However, on retrial the trial court must ascertain defendant’s prior felony convictions, if any, before ruling on their admissibility.
    Reversed and remanded.
    1. Evidence — Hearsay—Definition.
    Hearsay evidence may be defined as that evidence offered in court of a statement made out of court to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court declarant.
    2. Evidence — Hearsay Rule — Justification.
    The principal justification for the rule of evidence prohibiting hearsay evidence is the lack of opportunity for the adversary to cross-examine the absent declarant whose out-of-court assertion is reported by the testifying witness.
    3. Evidence — Hearsay Rule — Official Records.
    Official records or documents properly authenticated must be produced in order for hearsay testimony, relating the contents of the records or documents, to qualify for the official records exception to the hearsay rule.
    4. Evidence — Hearsay—Cumulative Testimony — Corroborative Testimony — Harmless Error.
    The erroneous admission of hearsay testimony is harmless error where such testimony is merely cumulative and corroborative of earlier testimony.
    5. Evidence — Hearsay—Miscarriage of Justice.
    The admission of a prosecution witness’s hearsay testimony that is not merely cumulative or corroborative of earlier testimony may result in a miscarriage of justice.

      6. Homicide — First-Degree Murder — Instructions to Jury — Fel-
    ony-Murder — Second-Degree Murder — Included Offenses. The trial court is required to instruct the jury sua sponte, even over objection, on the included offense of second-degree murder in every trial for first-degree murder, including felony-murder.
    7. Homicide — Felony-Murder—Elements—Murder—Malice—Statute.
    To convict a defendant of felony-murder, the prosecution must establish 1) a homicide, 2) that the homicide is murder, and 3) that the murder occurred in the perpetration or attempt to perpetrate one of the felonies enumerated in the first-degree murder statute; thus, before a party may be convicted under the first-degree murder statute, a common-law murder must be proved (MCL 750.316; MSA 28.548).

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

      Carl Ziemba, for defendant on appeal.
    Before: Allen, P.J., and R. M. Maher and J. E. Townsend, JJ.

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

   R. M. Maher, J.

Defendant was convicted of murder in the first degree in the perpetration of a robbery contrary to MCL 750.316; MSA 28.548. He was sentenced to life imprisonment and appeals as of right.

The killing of one Lawrence Newhouse occurred on August 3, 1974. Blanche Foster, a neighbor of the deceased, testified that she had known the deceased for 40 years and that he lived in a house on Steel Street in the City of Detroit across the alley from the witness. On August 2, 1974, she saw the deceased in his home at 3:30 p.m. and later at 6:30 p.m.; the deceased was well. On the following day, the witness went to the deceased’s home at 9:15 a.m., saw him lying on the glider on the front porch, and called the police.

The first officers to arrive on the scene found Mr. Newhouse dead on the glider with wounds to the head. The house — especially the bedroom — was in disarray. In the bedroom, the mattress was pulled askew, dresser drawers were pulled out and some loose change was lying on the floor. Although the deceased was fully clothed, his pants were unzipped and one pocket was pulled out. Ms. Foster testified that, upon entering the deceased’s home after the police arrived, she noticed that the television set which had been there the day before was now missing, along with the TV stand. She also testified that she did Mr. Newhouse’s banking, depositing the pension, social security and dividend checks which he regularly received. She testified as well that the deceased kept some money in the house.

Medical testimony established that the deceased had suffered deep injuries to the head and face which were caused by the impact of a blunt object, possibly a hammer. Cause of death was destruction of the brain as a result of the injuries to the head.

Fred Davis, a Detroit police lieutenant assigned to homicide, testified that on August 29, 1975, at about 10:45 a.m., the defendant walked into the homicide office. Lt. Davis was introduced to the defendant by Sgt. Lisbara who said that the defendant was not in custody at that time. Lt. Davis then took a statement from the defendant which the defendant signed. The defendant was not a suspect in the case prior to making this statement. Defendant objected to the admission of the statement, on grounds that it was given a year and 26 days after the alleged offense, and that the statement did not come within any exception to the hearsay rule. The statement, however, was admitted and read into the record.

In the statement, the defendant said that Donnie Bolden and another "guy” who was probably his brother came to the defendant’s house at 11645 Appoline and asked the defendant if he knew of a "rip”. Defendant told them about the deceased. The defendant first stated that he went with them and pointed out the house, but then immediately stated: "No, on second thought, I didn’t go with them.” The Bolden brothers then left, returning 45 minutes later with a floor model TV in their truck. The brothers then drove away, but returned about an hour later and discussed going back to the home of the deceased to get money. The brothers again left together. They returned about a half hour later, saying that they didn’t get any money but that Donnie hit the deceased with a hammer. The first time the two brothers went to the deceased’s home, he was asleep; the second time, the deceased was on the enclosed porch. The defendant indicated to Lt. Davis that he was telling about the homicide because he needed some help himself.

After taking this statement from the defendant, Lt. Davis called Sgt. Bemke, who was in charge of the case, and asked the sergeant to come to his office. When Sgt. Bemke arrived, Lt. Davis gave him the signed written statement. Sgt. Bemke then advised defendant of his constitutional rights and took a further statement from him. Although defendant signed the constitutional rights form, he refused to sign the second statement taken by Sgt. Bemke. The prosecution moved to admit defendant’s second statement along with the notification of rights form. Defendant objected to the admission of the second statement, claiming that there was no showing that the statement was made by the defendant because the defendant did not sign it. The court, after a Walker hearing, found the statement voluntary and ruled it admissible.

Sgt. Bemke then read defendant’s second statement into the record. In this statement, defendant said that he accompanied the Bolden brothers to the home of the deceased and found the deceased in bed. Donnie Bolden carried out the TV from the living room, and defendant carried out the TV stand. The three then went to defendant’s house. The Bolden brothers left, then returned about 45 minutes later and asked defendant if he knew where they could get cash. Defendant told them that he didn’t know of any place. Donnie Bolden then stated that the deceased must have money because he should have received a Social Security check. The two brothers then went back to the deceased’s house, but defendant stayed home.

When the Bolden brothers came back about a half hour later, Donnie Bolden said that the deceased had no money and that he had to "bust” the deceased "upside the head” to get him to tell where any money was.

The statement went on to say that about a month earlier defendant and a friend broke into the deceased’s house and took a TV, the deceased’s wallet and his ring with two diamonds. After being asked whether there was anything else he wanted to say, the defendant stated that he did go with the Bolden brothers to the deceased’s home the second time, that the deceased was on the swing and that Donnie Bolden looked through the deceased’s pants for money and then hit the deceased in the head with a hammer.

After reading the statement, Sgt. Bemke then testified that he talked to Robert Bolden. Based upon this conversation, Sgt. Bemke contacted the sheriffs department in Catusa, Alabama, and Chapman, Georgia. Over the defendant’s objection that it was hearsay, Sgt. Bemke testified that both Bolden brothers were in custody on August 3, 1974, in Chapman, Georgia.

The defendant did not adduce any evidence and the jury returned a verdict of guilty.

Defendant has raised 12 separate issues on appeal. We find one which clearly requires reversal. Four other issues constitute error and require comment, while the remainder are without merit.

We reverse defendant’s conviction because we are convinced that he was deprived of his right to a fair trial and of his right to confront the witnesses against him when the trial court admitted into evidence, over defendant’s objection, hearsay evidence that the Bolden brothers were incarcerated in Georgia at the time the victim was killed.

The charges against the defendant were based upon his alleged second statement of August 29, 1975, to Sgt. Bemke, wherein the defendant revealed detailed information relating to the murder and stated that Donnie Bolden hit the deceased in the head with a hammer. It was the prosecution’s theory that the portion of the defendant’s statement concerning the Bolden brothers was false, and that only the defendant, based upon his detailed knowledge of the incident, could have murdered the victim.

In support of this theory, the prosecution adduced testimony from Sgt. Bemke as to information he obtained concerning the whereabouts of the Bolden brothers on the day of the murder. Defense counsel objected, stating, "It’s hearsay in the rankest form, your Honor”, and the following took place:

"MR. WOUCZYNA [The Prosecutor]: Thank you, your Honor.
"Q By Mr. Wouczyna: Were you able to obtain any information about the Bolden brothers concerning the dates of August 2nd and 3rd of 1974?
"A [By Sgt. Bemke]: Yes. They [Sheriffs Department in Chapman, Georgia] send [sic] me records and photographs of the Bolden brothers and confirmed the fact they were both in custody on August 3rd [the day of the killing] in Chapman Georgia.
"THE COURT: Well—
"MR. PERSONS [The Defense Counsel]: Where are those records?
"THE COURT: Well, I suppose if you press it he’ll let you see them.”

No records relating to the Bolden brothers’ incarceration were admitted into evidence.

This Court has defined hearsay and has commented on the purpose for its inadmissibility as follows:

"Hearsay evidence may be defined as that evidence offered in court of a statement made out of court to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court declarant. See McCormick, The Law of Evidence (2d ed), § 246, p 584. Application of the rule prohibiting such evidence reveals its principal justification is the lack of opportunity for the adversary to cross-examine the absent declarant whose out-of-court assertion is reported by the testifying witness.” People v Solomon, 47 Mich App 208, 212-213; 209 NW2d 257 (1973), rev’d on other grounds, 391 Mich 767 (1974).

Clearly, in the case before us, the proffered testimony was offered to prove the truth of the matter asserted therein and was thus hearsay. In order for such testimony to qualify for the official records exception to the hearsay rule, the official record or document, properly authenticated, must be produced. 30 Am Jur 2d, Evidence, § 962, p 90. As no documents or records were offered into evidence, the trial court’s admission of Sgt. Bemke’s hearsay testimony over the defendant’s objection was erroneous.

We must now determine whether the admission of the hearsay testimony was harmless, or whether it resulted in a miscarriage of justice requiring reversal of defendant’s conviction, see MCL 769.26; MSA 28.1096. The erroneous admission of hearsay testimony is harmless error where such testimony is merely cumulative and corroborative of earlier testimony, People v Vargas, 50 Mich App 738; 213 NW2d 848 (1973), People v Harrison, 49 Mich App 546; 212 NW2d 278 (1973), People v Dykes, 37 Mich App 555; 195 NW2d 14 (1972). In the present case, the only testimony relating to the Bolden brothers’ incarceration on the date of the murder was the inadmissible hearsay testimony of Sgt. Bemke. Since the hearsay testimony was not cumulative, it cannot be viewed as harmless error.

In cases similar to the one before us, this Court has not hesitated in finding such testimony amounted to a miscarriage of justice and we find no reason to deviate from this policy. See People v Fell, 65 Mich App 543; 237 NW2d 550 (1975), and People v Logan, 17 Mich App 363; 169 NW2d 504 (1969).

For the reasons stated, the defendant’s conviction is reversed. Given the possibility of another trial, we will briefly comment on four other issues raised on appeal.

Defendant did not request and the trial judge did not instruct on the lesser included offense of murder in the second degree. In People v Jenkins, 395 Mich 440, 442-443; 236 NW2d 503 (1975), the Court held:

"[I]n every trial for first-degree murder, including felony murder, the trial court is required to instruct the jury sua sponte and even over objection, on the lesser included offense of second-degree murder.
"This decision shall apply to this case and to all cases tried after January 1, 1976.”

The trial of the case at bar commenced on December 29, 1975, but the charge to the jury was delivered on January 2, 1976. We believe that since the Jenkins rule deals with mandatory jury instructions, the time that the instructions are given is the operative point in time for the applicability of this rule. In any event, on retrial the instruction must be given.

Next defendant argues that the trial judge erred when he instructed the jury that the element of malice is imputed from the perpetration of the initial robbery. We agree. Although various panels of this Court are split on this issue, we are inclined to follow the opinions in People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976), and People v Wright, 80 Mich App 172; 262 NW2d 917 (1977). Thus on retrial the court should adhere to the following principle as laid down in Wright, supra, at 176.

"In order to convict a defendant of felony murder, the prosecution must establish (1) a homicide; (2) that the homicide is murder; and (3) that the murder occurred in the perpetration or attempt to perpetrate one of the felonies enumerated in MCL 750.316; MSA 28.548. People v Wimbush, 45 Mich App 42; 205 NW2d 890 (1973), People v Smith, 55 Mich App 184; 222 NW2d 172 (1974). Thus, before a party may be convicted under the first-degree murder statute, a common law murder must be proved.”

The second element as set forth by the Wright Court will require the trial judge to instruct the jury that defendant can be convicted of first-degree felony murder only if the jury has found the killing was done with malice.

Defendant asserts that the trial court’s instruction on aiding and abetting was erroneous and misleading because there was no mention that the jury had to find a concert of action between defendant and the principal and no mention that defendant must have intended the commission of the crime at the time that aid was given. We find the instructions lacking in some areas and we direct the court, on retrial, to use CJI 8:1:01 to avoid any confusion in the minds of the jury.

Lastly, we find the trial court did recognize that it had discretion to allow the defendant to be impeached, if he had elected to testify, by introducing a previous conviction for larceny in a building. The problem is that defense counsel insisted that larceny in a building was only the original charge, not the conviction. On retrial we instruct the judge to ascertain defendant’s prior felony convictions, if any, before ruling on their admissibility under People v Jackson, 391 Mich 323; 217 NW2d 22 (1974).

Reversed and remanded.

        People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).


author: R. B. Burns, J.

text:
    PEOPLE v STOLL
    Docket Nos. 78-1015, 78-1016, 78-1017.
    Submitted November 15, 1978, at Lansing.
    Decided December 8, 1978.
    Bret R. Stoll was convicted, on his plea of guilty, of delivery of phencyclidine, assault with intent to commit murder and possession of a firearm during the commission of the assault with intent to commit murder, Livingston Circuit Court, Bert M. Hensick, J. The defendant appeals, alleging, among other things, that the plea-based convictions for the assault and felony-firearm offenses were improper because an adequate factual basis was not elicited to establish assault with intent to commit murder. Held:

    The matter must be remanded as to the convictions on the assault with intent to commit murder charge and the felony-firearm charge since an adequate factual basis was not elicited to establish the assault offense. On remand the prosecutor shall be given an opportunity to supply the missing elements.
    The conviction for delivery of phencyclidine is affirmed.
    Reversed in part, affirmed in part, and remanded.
    1. Criminal Law — Plea of Guilty — Elements of Offense — Possible Defenses — Court Rules.
    The court rule on pleas of guilty requires that the judge tell the defendant the general nature of the charge to which the plea is offered; the court is not obliged to explain the elements of the offense, or any defenses possible (GCR 1963, 785.7[l][a]).
    2. Criminal Law — Plea of Guilty — Inadequate Factual Basis— Remand.
    A defendant’s guilty plea conviction should be reversed and the case remanded to the trial court where the people concede that an adequate factual basis was not elicited to establish the crimes charged.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 487.
    Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof. 97 ALR2d 549.

       21 Am Jur 2d, Criminal Law §§ 495, 503.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Frank R. Delvero, Prosecuting Attorney, and Keith D. Roberts, Assistant Attorney General, for the people.

      Abood & Abood, P.C., for defendant.
    Before: Cynar, P.J., and R. B. Burns and M. B. Breighner, JJ.

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

   R. B. Burns, J.

Pursuant to a plea bargain, defendant pled guilty to delivery of phencyclidine, MCL 335.341(l)(b); MSA 18.1070(41)(l)(b), assault with intent to commit murder, MCL 750.83; MSA 28.278, and possession of a firearm during commission of a felony, MCL 750.227b; MSA 28.424(2). The assault and firearm offenses allegedly arose out of the same transaction.

We find defendant’s arguments regarding the title-object clause, Const 1963, art 4, § 25, and double jeopardy, US Const, Am V, Const 1963, art 1, § 15, unpersuasive. See People v Gary Hughes, 85 Mich App 674; NW2d (1978), People v Walter Johnson, 85 Mich App 654; NW2d (1978).

We also find defendant’s argument regarding the trial court’s failure to explain the elements of the offense of assault with intent to commit murder to be without merit. See GCR 1963, 785.7(l)(a), Guilty Plea Cases, 395 Mich 96, 115-117; 235 NW2d 132, 139-140 (1975). Henderson v Morgan, 426 US 637; 96 S Ct 2253; 49 L Ed 2d 108 (1976), is distinguishable from this case on the facts.

Plaintiff concedes that an adequate factual basis was not elicited to establish assault with intent to commit murder. The firearm offense necessarily turns upon the establishment of the assault offense. As to these two counts, the case is remanded. On remand the prosecutor shall be given the opportunity to establish the missing elements. If he is able to do so and there is no contrary evidence, the judgment of conviction shall be affirmed. If contrary evidence is produced, the matter shall be treated as a motion to withdraw the guilty pleas and the court shall decide the matter in the exercise of its discretion. Guilty Plea Cases, supra at 129; 235 NW2d at 145.

Reversed in part, affirmed in part and remanded.


author: Per Curiam.

text:
    PEOPLE v BURTON
    Docket No. 77-4463.
    Submitted October 3, 1978, at Lansing.
    Decided December 8, 1978.
    Edwin E. Burton was convicted, on his plea of guilty, of felonious assault and possession of a firearm at the time of commission or attempted commission of the felony. The defendant’s subsequent motion to dismiss the felony-firearm count because of alleged constitutional deficiencies in the felony-firearm statute was denied in Hillsdale Circuit Court, Kenneth G. Prettie, J. The defendant appeals,raising the issue of whether the convictions for both the underlying felony and the use of a firearm in the commission of the felony constitute a violation of his constitutional guarantee against double jeopardy. Held:

    The felony-firearm statute is to be viewed as a sentence enhancement statute and that portion of the felony-firearm statute which creates a separate and distinct felony for the possession of a firearm in the commission of the underlying felony is inoperable. Thus the defendant’s separate conviction for possession of the firearm in the commission of the underlying felony is reversed, but the sentence for conviction on the underlying felony, as enhanced by the mandatory sentence of the felony-firearm statute, is affirmed.
    Affirmed in part and reversed in part.
    1. Constitutional Law — Criminal Law — Overbreadth Challenge —Applicability of Statute to Defendant.
    A defendant may not challenge the constitutionality of a criminal statute on the grounds that the statute is overbroad as to him where the statute is clearly applicable to the defendant’s conduct.
    References for Points in HeadnOtes

       16 Am Jur 2d, Constituional Law § 504.

       21 Am Jur 2d, Criminal Law § 189.

       21 Am Jur 2d, Criminal Law §§ 165, 185.

       73 Am Jur 2d, Statutes § 546.

       73 Am Jur 2d, Statutes §§ 272, 273.

       21 Am Jur 2d, Criminal Law § 546.

      2. Criminal Law — Felony-Firearm—Underlying Felony — Necessarily Included Offenses — Statutes.
    The underlying felony, in a felony-firearm case, is. always a necessarily included offense of the separate offense of felony-firearm if the felony-firearm statute is literally read since that statute states that an underlying felony must be shown in order to find the separate crime of felony-firearm (MCL 750.227[b]; MSA 28.424[2]).
    3. Constitutional Law — Criminal Law — Double Jeopardy — Necessarily Included Offenses.
    Convictions for two offenses based on the same act constitute double punishment where one offense is a necessarily included offense of the other.
    4. Constitutional Law — Criminal Law — Double Jeopardy — Felony-Firearm — Sentence Augmenting Statute — Statutes. There is no double jeopardy problem with the felony-firearm statute if the statute is viewed as a sentence increasing or sentence augmenting statute, as was the intent of the Legislature, rather than viewing the statute as creating a separate and distinct felony (MCL 750.227[b]; MSA 28.424[2]).
    5. Statutes — Statutory Construction — Modification of Meaning of Words — Absurd Result — Legislative Intent.
    A statute may be construed in a manner which modifies the meaning of the words, or even modifies the structure of a sentence, where the language of the statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended by the Legislature.
    6. Criminal Law — Felony-Firearm—Separate Offenses — Additional Sentence — Statute.
    The portion of the felony-firearm statute which creates a separate offense is inoperable, but that portion of the statute which sets forth an additional mandatory term of imprisonment for the conviction for an underlying felony when a firearm is used in its perpetration or attempted perpetration is valid (MCL 750.227[b]; MSA 28.424[2]).

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

      Gibbons & Nye, for defendant on appeal.
    Before: V. J. Brennan, P.J., and Allen and P. F. O’Connell, JJ.

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

   Per Curiam.

Once again this Court is asked to determine whether Michigan’s felony-firearm statute MCL 750.227(b); MSA 28.424(2) is violative of the constitutional protection against double jeopardy. On this issue, prior panels of this Court have divided almost evenly. This panel holds the statute constitutional.

In a three-count information, defendant was charged with (I) assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, (II) felonious assault, MCL 750.82; MSA 28.277, and (III) possession of a firearm at the time of commission or attempted commission of a felony, MCL 750.227(b); MSA 28.424(2). Pursuant to a plea agreement, defendant entered pleas of guilty to counts II and III. On September 26, 1977, a hearing was held on defendant’s motion to dismiss count III based on alleged constitutional deficiencies of the felony-firearm statute. Following argument, the court denied the motion and sentenced defendant to 32 months to 4 years on count II, said sentence to be served consecutively with the mandatory 2-year term under count III.

We reject defendant’s initial argument that the felony-firearm statute is unconstitutional for over-breadth. Clearly, it is not overbroad in relation to defendant’s conduct. One may not constitutionally challenge a statute on grounds of overbreadth against him when the statute clearly applies. People v Chapman, 80 Mich App 583; 264 NW2d 69 (1978).

On the sensitive question of double jeopardy, strong,and persuasive reasons support each of the conflicting conclusions of the several panels which have addressed the issue. No useful purpose is served by detailing at length the arguments offered in support of the conflicting positions of prior panels. Instead, the task of this panel is to briefly state the opposing views and decide which of the two positions most merits support.

The decisions finding double jeopardy do so by reading the statute literally. Literally read, the statute states that an underlying felony must be shown in order to find the separate crime of felony firearm. Consequently, the underlying felony is always a necessarily included offense of the separate offense of felony firearm. People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975). But our Supreme Court has held that where one of two offenses charged is a necessarily included offense of the other, convictions for both based on the same act constitutes double punishment. People v Martin, 398 Mich 303; 247 NW2d 303 (1976), Peo ple v Stewart (On Remand), 400 Mich 540; 256 NW2d 31 (1977).

Decisions which find no double jeopardy infirmity do so by ignoring the literal reading of the statute and looking to legislative intent. In these decisions the Court finds that the Legislature intended to augment the sentence where a firearm was carried in the commission of a felony. In effect, the statute becomes a sentence-increasing or sentence-augmenting statute. Since the Legislature could have provided by amendment to the underlying felony statute a minimal punishment where the underlying felony is committed with a firearm and since, under Gore v United States, 357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958), such amendment would not offend the double jeopardy clause, there is no double jeopardy impediment where the same result is reached by separate statute.

It is the conclusion of this panel that the better reasoning lies with the decisions upholding the statute. The legislative intent is so clear that to us it is absurd, or at least awkward, to place technicalities ahead of intent. As was stated in Williams v Secretary of State, 338 Mich 202, 208; 60 NW2d 910 (1953), and quoted with approval in McDowell, supra:

" 'Effect to be Given to True Intent of Act. Modification of Language. — Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it, which modifies the meaning of the words, and even the structure of the sentence.’ ”

This panel adopts by reference the McDowell-Blount, supra, rationale and holds inoperable that portion of the felony-firearm statute which creates a separate offense but sustains the defendant’s sentence on grounds that with the offending language removed, the statute sets forth a mandatory minimum term of incarceration on the underlying felony.

Defendant’s conviction for felony firearm is set aside. The sentence is affirmed.

       On September 20, 1978, the Court of Appeals released six opinions dealing with the question of whether the additional crime of felony-firearm over an underlying felony containing the use of a firearm constitutes double jeopardy. Three opinions found double jeopardy. Wayne County Prosecutor v Recorders Court Judge, 85 Mich App 727; 272 NW2d 587 (1978), People v Brintley, 85 Mich App 714; 272 NW2d 582 (1978), People v Berry, 85 Mich App 764; 272 NW2d 604 (1978). Four opinions found the statute nonviolative of the constitutional prohibition against double jeopardy. People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978). People v Gary Hughes, 85 Mich App 674; 272 NW2d 567 (1978), People v Mitchell, 85 Mich App 757; 272 NW2d 601 (1978), People v McDowell, 85 Mich App 697; 272 NW2d 576 (1978). On September 21, 1978, Chief Judge Danhof advised the Supreme Court of the split and requested that leave be granted and the issue decided. People v Ronald Blount, 87 Mich App 501; 275 NW2d 21 (1978), follows the McDowell-type rationale and upholds the sentence.

       While all five of the cases finding no double jeopardy do so on the basis of legislative intent, three would sustain the felony-firearm conviction. People v Walter Johnson, supra; People v Gary Hughes, supra, People v Brintley, supra. In the other two cases (McDowell, supra, and Blount, supra) the statute is held inoperable as a separate and distinct felony of felony-firearm but nevertheless valid as a sentence enhancement to the underlying felony. See the opinion by Bashara, J., in McDowell for a detailed explanation of the rationale used.


author: Bashara, J.

text:
    NORTHERN MICHIGAN EDUCATION ASSOCIATION v KALKASKA PUBLIC SCHOOLS BOARD OF EDUCATION (ON REMAND) NORTHERN MICHIGAN EDUCATION ASSOCIATION v VANDERBILT AREA SCHOOLS
    Docket Nos. 77-3340, 77-4306, 77-4307.
    Submitted October 10, 1978, at Lansing.
    Decided December 8, 1978.
    Leave to appeal applied for.
    On August 23, 1976, Northern Michigan Education Association (NMEA) filed a petition with the Michigan Employment Relations Commission (MERC) seeking to replace the Kalkaska Education Association as collective bargaining representative for the teachers of the Kalkaska Public Schools. The Kalkaska Board of Education opposed the election of NMEA on the grounds of a conflict of interest in that NMEA represented other teachers in other school districts. Inaction by the Kal-kaska Board of Education on the election petition caused NMEA to file an unfair labor practice charge with MERC alleging that the Kalkaska Board of Education’s refusal to consent to NMEA’s certification as exlusive bargaining agent violated the public employment relations act. On January 12, 1977, MERC, following a hearing on the petition and unfair labor charge, issued a unanimous decision, on April 19, 1977, directing the Kalkaska Board of Education to hold an election.
    On April 25, 1977, a petition for election was filed by NMEA, with MERC, seeking an election to certify NMEA as bargaining representative for the Vanderbilt Area Schools. The Vanderbilt Area Schools objected to the election for the same reasons as the Kalkaska Board of Education. In early May 1977, the Kalkaska Board of Education filed an application for leave to appeal and a motion for stay of MERC’s order with the Court of Appeals. On May 18, 1977, the Court of Appeals denied leave to appeal. The Kalkaska School District applied for leave to appeal to the Supreme Court. On or about June 23, 1977, the school districts stipulated that the record of the hearing before MERC regarding the Kalkaska Public Schools was to be treated as the record for the Vanderbilt case. On August 17, 1977, the Vanderbilt Area School’s motion to stay the election was denied. On October 19, 1977, the Supreme Court remanded to the Court of Appeals for consideration the Kalkaska case as on leave granted, 401 Mich 826 (1977). On February 10, 1978, the Court of Appeals granted Vanderbilt’s application for leave to appeal and in the same order, on its own motion, ordered consolidation of the Kalkaska and Vanderbilt appeals. The issues on appeal are (1) whether MERC acted properly when it directed an election to determine if NMEA would be the teachers’ collective bargaining agent over the objection of the Kalkaska Board of Education where NMEA represented other teachers in other school districts, and (2) whether the transcript of the unfair labor practice hearing concerning Kalkaska Board of Education’s refusal to bargain should be added to the record on appeal. Held:

      References for Points in Headnotes

       48 Am Jur 2d, Labor and Labor Relations § 446.

       48 Am Jur 2d, Labor and Labor Relations §§ 438,1193,1194.

       48 Am Jur 2d, Labor and Labor Relations § 1194.

       48 Am Jur 2d, Labor and Labor Relations § 491.

       5 Am Jur 2d, Appeal and Error § 736.

      1. There was no showing of a conflict of interest which would interfere with NMEA’s loyalty to the teachers of both the Kalkaska and Vanderbilt school systems; a collective bargaining representative may serve the teachers of more than one school where the possibility of a substantial conflict of interest is too remote to preclude fair representation of the teachers in different school districts.
    2. The Court of Appeals may add relevant evidence where it is necessary to resolve a matter before it; however, a request to supplement an appeal record with after-acquired testimony may be rejected where no good cause for the addition is shown by the petitioner.
    Affirmed.
    1. Labor Relations — Labor Mediation Act — Labor Disputes — Collective Bargaining — Bargaining Representatives — Bargaining Units — Statutes.
    A section of the labor mediation act does not place a restriction in the determination of the bargaining unit which will best secure to employees their right of collective bargaining on the bargaining representative; it restricts the bargaining unit (MCL 423.9e; MSA 17.454[10.4]).
    2. Labor Relations — Collective Bargaining — Public Employment Relations Act — Selection of Bargaining Representative— Statutes.
    The manner of selecting a collective bargaining representative and the representative chosen are matters exclusively within the province of the employees under the public employment relations act;, the employer has no voice in choosing the representative for its employees and must maintain neutrality in the selection process (MCL 423.209; MSA 17.455[9]).
    3. Schools and School Districts — Labor Relations — Collective Bargaining — Conflict of Interest — Fair Representation.
    A collective bargaining representative is not disqualified from serving as a bargaining representative for more than one school district where the possibility of a substantial conflict of interest is too remote to preclude fair representation of the teachers in different school districts.
    4. Labor Relations — Collective Bargaining — Election Petitions— Bargaining Representative — Conflict of Interests — Disqualification.
    A challenge to an election petition followed by a hearing on election petition objections is the proper method of determining whether a labor organization with alleged extra-unit interests is disqualified from acting as a collective bargaining representative.
    5. Appeal and Error — Court of Appeals — Powers—Addition of Relevant Evidence — After-Acquired Testimony — Good Cause.
    A court rule empowers the Court of Appeals to add relevant evidence it deems necessary to resolve a matter before it; however, good cause must be shown for supplementing an appeal record with after-acquired testimony (GCR 1963, 820.1).

      Foster, Swift, Collins & Coey, P.C. (by Arthur R. Przybylowicz), for plaintiff.

      Thrun, Maatsch & Nordberg (by Harry J. Zeliff and Joe D. Mosier), for defendants.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Francis W. Edwards, Assistant Attorney General, for Michigan Employment Relations Commission.

      Amici Curiae:

      William E. Lobenherz, for Michigan Association of School Boards.

      Robert A. Huston, for Brandywine Public Schools.
    Before: Danhof, C.J., and Bashara and Cynar,* JJ.
   Bashara, J.

This appeal arises from a ruling by the Michigan Employment Relations Commission (MERC) that plaintiffs were not disqualified from serving as bargaining representatives for teachers from both the school systems.

Defendants Kalkaska Board of Education and Vanderbilt Area Schools, ably assisted by comprehensive briefs of amici, contend the Northern Michigan Education Association (NMEA) is an improper bargaining representative for the teachers in their respective systems. The defendants primarily base their contention on the provisions of the labor mediation act, MCL 423.9e; MSA 17.454(10.4). Defendants argue the statute provides that the bargaining unit shall be the employees of one employer, and that the school board is required to deal with a labor organization only when it exclusively represents their employees. Defendants claim that a union representing more than one bargaining unit involving several school systems creates a conflict of interest.

The section in question states:

"The commission, after consultation with the parties, shall determine such a bargaining unit as will best secure to the employees their right of collective bargaining. The unit shall be either the employees of one employer employed in one plant or business enterprise within this state, not holding executive or supervisory positions, or a craft unit, or a plant unit, or a subdivision of any of the foregoing units. If the group of employees involved in the dispute was recognized by the employer or identified by certification, contract, or past practice, as a unit for collective bargainings the commission may adopt that unit.” MCL 423.9e; MSA 17.454(10.4).

A close reading of that section reveals that it does not place a restriction on the bargaining representative, but restricts the bargaining unit itself. In the present case, there is no dispute as to the appropriateness of the bargaining unit.

The public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq., is the dominant law governing public employee labor relations in Michigan. The Lamphere Schools v Lamphere Federation of Teachers, 400 Mich 104; 252 NW2d 818 (1977). Section 9 of the PERA provides that,

"It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection, or to negotiate or bargain collectively with their public employers through representatives of their own free choice.” MCL 423.209; MSA 17.455(9).

A provision similar to the above cited PERA section is found in the National Labor Relations Act, 29 USC 157.

Our Supreme Court has frequently indicated reliance upon construction of provisions of the NLRA through decisions of the National Labor Relations Board and the Federal Courts in construing the analogous state statute. Rockwell v Crestwood School District Board of Education, 393 Mich 616; 227 NW2d 736 (1975).

Several Federal decisions have found that the principal concern is whether a collective bargaining representative was the free choice of the employees. The manner of selection and the representative chosen are matters exclusively within the province of the employees. The employer has no voice in choosing the representative for its employees and must maintain neutrality in the selection process. NLRB v Jones & Laughlin Steel Corp, 301 US 1; 57 S Ct 615; 81 L Ed 893 (1937), Minnesota Mining & Mfg Co v NLRB, 415 F2d 174 (CA 8, 1969).

The NMEA admittedly represents employees of several school districts. Defendants contend this creates sufficient conflict so as to preclude the NMEA from serving as bargaining representative to any single school district.

Defendants rely on Bausch & Lomb Optical Co, 108 NLRB 1555; 34 LRRM 1222 (1954), in support of their position. However, in that case the union had set up an optical business which directly competed with the employer. Likewise, in Bambury-Fashions Inc, 179 NLRB 447; 72 LRRM 1350 (1969), a union was disqualified because it was operating a business in direct competition with the employer. The NLRB reasoned that the union’s interests in representing the employee salesmen conflicted substantially with its primary interest in coordinating the activities of its affiliates. See also NLRB v David Buttrick Co, 399 F2d 505 (CA 1, 1968), where the Court affirmed an NLRB holding that the danger of conflict was not clear and present.

The facts in the case at bar are distinguishable from those cited by defendants. The competition factor is not present here. We agree with the administrative law judge and MERC that the possibility of a substantial conflict of interest is too remote to preclude the NMEA from representing teachers in different school districts.

Defendants also contend that a hearing on objections to an election petition is the proper method for determining whether a labor organization with alleged extra-unit interests is disqualified from acting as collective bargaining representative. Neither the plaintiffs nor MERC has addressed this issue in their respective briefs.

We accept the premise of defendants as correct, not only because plaintiffs have failed to respond, but because a challenge to an election petition is a proper method of determination in such a case. See NLRB v H P Hood Inc, 496 F2d 515 (CA 1, 1974), and City of Hart, 1976 MERC Labor Opinions p 252.

Defendants’ final argument is that this Court should permit the record in this case to be supplemented by the transcript and exhibits of an unfair labor practice hearing held on August 9, 1977. The hearing in question was held approximately seven months after the appeal bringing the principal matter before this Court.

GCR 1963, 820.1 empowers the Court of Appeals to add relevant evidence it deems necessary to resolve a matter before it. However, defendants have shown no good cause for supplementing the present record with after-acquired testimony. We also consider that defendants made no objection to the record when they appealed to this Court. It should also be noted that this Court has already rejected such a request.

We conclude that there has been no showing that a conflict of interest exists which will interfere with the plaintiff representative’s loyalty to the defendants’ employees.

Affirmed, no costs, a public question being involved.

       This matter originally came to the Court of Appeals on an application for leave to appeal a MERC opinion ordering an election in the Kalkaska school system. Defendants appealed this Court’s denial of the application to the Supreme Court. In lieu of granting leave to appeal, the Supreme Court remanded the case to this Court for consideration as on leave granted, 401 Mich 826 (1977). The record in the Kalkaska hearing was adopted in the case involving the Vanderbilt Area Schools and the cases were consolidated for appeal here.


author: C. J. Byrns, J.

text:
    PEOPLE v BROWN
    Docket No. 77-4912.
    Submitted October 5, 1978, at Grand Rapids.
    Decided December 8, 1978.
    Defendant Johnny Ray Brown was charged with assault with intent to do great bodily harm less than murder and was convicted after a nonjury trial in the Kent Circuit Court, Stewart Hoffius, J., of aggravated assault, a misdemeanor carrying a maximum incarceration period of one year. Prior to the trial the judge informed defendant and his counsel that he would be free to consider lesser-included misdemeanors which would be precluded from consideration in the event defendant chose a jury trial. Defendant appeals. Held:

    The trial judge committed no error since there was adequate evidence to support the conviction and since the record indicates that defendant chose a nonjury trial in part so that the court would be free to consider lesser-included misdemeanors.
    Affirmed.
    Criminal Law — Nonjury Trials — Lesser Included Offenses — Assault — Aggravated Assault — Appeal and Error.
    It was not error for a trial court sitting without a jury to find a defendant charged with assault with intent to do great bodily harm less than murder guilty of aggravated assault where the record indicates that the defendant and his counsel wholly or in part chose a nonjury trial because the court informed them that, while a jury could not consider aggravated assault, the court itself could and where the record contains evidence adequately supporting the conviction.
    Reference for Points in Headnote
    47 Am Jur 2d, Jury §§ 76, 77.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Donald A. Johnston, Chief Appellate Attorney, for the people.

      George S. Buth, for defendant on appeal.

      Before: D. F. Walsh, P.J., and T. M. Burns and C. J. Byrns, JJ.

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

   C. J. Byrns, J.

By information filed on April 14, 1977, defendant was charged with assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, after he struck another man in the head with a pan of hot water, causing serious injuries to the victim. The maximum term of imprisonment for conviction of the charged offense is ten years. Defendant was convicted of aggravated assault, MCL 750.81a; MSA 28.276(1), after a nonjury trial on June 27, 1977, and was sentenced to a term of one year in the county jail, the maximum incarceration period permitted by the statute under which he was convicted. Defendant now appeals as of right, contending that the rule enunciated in People v Chamblis, 395 Mich 408, 429; 236 NW2d 473, 483 (1975), forbidding a trial judge from instructing a jury on lesser included offenses having a maximum allowable incarceration period of one year or less, where the charged offense is punishable by incarceration for more than two years, is applicable to nonjury as well as jury trials.

Prior to defendant’s waiver of his right to trial by jury, and in his presence, the trial judge stated on the record his belief that the Chamblis rule did not apply to nonjury trials. After the judge expressed his intention to consider lesser offenses (including aggravated assault, assault and battery and simple assault) which would have been precluded from jury consideration under Chamblis, the following colloquy ensued:

"The Court: Now, you have no objection to that?
"Mr. Wallin [assistant prosecutor]: I have no objection.
"The Court: All right.
"Mr. Pierce [defense counsel]: Your Honor, we will waive the jury.
"The Court: All right. Do you want to have your defendant step up?
"The Court: All right. You have been talking to your attorney about this matter and you understand you have a right to be tried by a jury?
"The Defendant: Right.
"The Court: And we cannot take that right away from you, but you can give up that right if you want to. So do you understand that you have that right and privilege?
"The Defendant: Yes, I understand.
"The Court: Okay. But notwithstanding that, you would rather be tried without a jury?
"The Defendant: Right.
"The Court: All right. You have discussed it with him, Mr. Pierce?
"Mr. Pierce: Yes, sir.
"The Court: You feel he understands all his rights in the matter?
"Mr. Pierce: Yes, your Honor, based on the statement we placed on the record that the lesser included offenses would be considered by the judge and would not be considered by the jury.
"The Court: With that in mind, he is ready to waive the jury?
"Mr. Pierce: Yes, your Honor.”

Defendant thereupon signed a form waiving his right to jury trial, was convicted by the court of aggravated assault, and now maintains that his conviction was invalidly obtained in violation of Chamblis.

The Chamblis Court stated its rule as follows:

"We are establishing a rule today, as a matter of policy, limiting the extent of compromise allowable to a jury in deciding whether to convict of a lesser included offense. In any case wherein the charged offense is punishable by incarceration for more than two years, the court, whether or not requested, may not instruct on lesser included offenses for which the maximum allowable incarceration period is one year or less.” People v Chamblis, supra at 429; 236 NW2d at 483.

Defendant’s contention that the Chamblis rule governs bench trials is a novel one which apparently has not been previously addressed by this Court. It is therefore necessary to examine the Chamblis opinion with care to determine whether the rule there set forth is applicable to nonjury as well as jury trials.

A careful perusal of the Chamblis rule reveals that its language is specifically addressed to situations involving jury trials. The rule speaks solely of a limitation imposed upon a trial judge in instructing a jury. No facially demonstrable requirement appears from the statement of the rule itself which would mandate its application to bench as well as jury trials. Consequently, the various factors considered by the Chamblis Court must be analyzed to determine whether they dictate extension of the rule to the present case.

A comparison of the charged offense (assault with intent to commit great bodily harm less than murder) with the offense of which defendant was convicted (aggravated assault) "demonstrates the overlapping of certain elements and common statutory purpose” such that the two crimes may accurately be described as cognate. People v Ora Jones, 395 Mich 379, 389-390; 236 NW2d 461, 465 (1975). In the case at bar, the lesser offense is of the same class or category, or is closely related to the original offense, so as to provide defendant with fair notice that he would be required to defend against it.

Furthermore, defense counsel specifically stated on the record his agreement to have the trial court consider lesser included offenses not considerable by a jury. It would appear from this record that defendant and his counsel wholly or in good part chose a nonjury trial because the court said that while a jury could not consider misdemeanor offenses, including aggravated assault, the court itself could. There can therefore be no question but that defendant’s due-process right to know the nature and cause of the accusation against him was amply met. People v Ora Jones, supra at 388; 236 NW2d at 464, People v Chamblis, supra at 417-419; 236 NW2d at 477-478.

The Chamblis Court’s purpose for establishing the rule of that case was to limit "the extent of compromise allowable to a jury in deciding whether to convict of a lesser included offense”. People v Chamblis, supra at 429; 236 NW2d at 483. The Court, quoting from Comment, 57 NW U L Rev 62, 73 (1962), cited "the policy against harassment and a continual seige of accusations and charges” and concluded that a defendant charged with a serious crime should not be convicted of a much lower offense which bears no realistic relationship to the offense committed. People v Chamblis, supra at 428; 236 NW2d at 483.

The Chamblis rule, it appears to us, resulted in part from the Supreme Court’s concern that where there is a multiplicity of lesser included offenses a jury might become confused and possibly compromise at a defendant’s expense. This should not occur where the trier of fact is a judge learned and experienced in the law.

Although not stated in Chamblis, the rule there expressed prevents a jury not convinced beyond a reasonable doubt from deciding that a defendant deserves some punishment and accordingly finding him guilty of an included misdemeanor.

The evidence in the present case adequately supports the trial judge’s finding that defendant assaulted his victim but lacked the intent requisite for a valid conviction of assault with intent to commit great bodily harm less than murder. Defendant’s conviction of aggravated assault upon an original charge of assault with intent to commit great bodily harm less than murder is obviously substantively distinguishable from the Chamblis prohibition against "convicting of assault and battery a defendant charged with murder”. People v Chamblis, supra at 428; 236 NW2d at 483. Under the facts and circumstances of this case, there is no question but that assault with intent to commit great bodily harm less than murder and aggravated assault are sufficiently related to avoid any contention that the lesser offense bears no realistic relationship to the greater offense or that defendant’s conviction of the lesser offense constituted a form of "harassment”. There was no error.

Affirmed.


text:
    PEOPLE v DUKE
    Docket No. 77-5165.
    Submitted October 11, 1978, at Lansing.
    Decided December 8, 1978.
    Leave to appeal denied, 406 Mich 924.
    Herschel D. Duke was charged with possession of heroin. The information was dismissed on the ground of entrapment, Jackson Circuit Court, Russell A. Noble, J. The people appeal. Held: The fact that a drug was provided by a government agent is certainly a factor to consider but it is not conclusive and must be considered along with all the other facts of the case. The defense of entrapment is not available where the defendant and others conceived the idea for the crime and the police merely responded to their orders and provided them with an opportunity to commit the crime.
    Reversed and remanded.
    1. Criminal Law — Entrapment—Objective Test — Predisposition to Commit Crime — Reprehensible Police Conduct — Public Policy.
    The objective test for entrapment, which has been adopted in this state, does not focus upon a defendant’s predisposition to commit the crime charged but upon whether the actions of the police were so reprehensible under the circumstances that a court should refuse, as a matter of public policy, to permit a conviction to stand.
    2. Criminal Law — Entrapment—Police Conduct — Evidence—Findings of Fact.
    A trial judge, in ruling on a question of entrapment, is required to consider police conduct in relation to a hypothetical defendant, not one ready and willing to commit a crime, and to make findings of fact upon the evidence presented.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 144.

       21 Am Jur 2d, Criminal Law § 143.

       25 Am Jur 2d, Drugs, Narcotics, and Poisons § 43.
    Entrapment to commit offense with respect to narcotics law. 33 ALR2d 880.

      3. Criminal Law — Entrapment—Burden of Proof.
    A defendant bears the burden of proving entrapment by a preponderance of the evidence.
    4. Drugs and Narcotics — Entrapment—Contraband—Sales—Government Agents — Evidence.
    The defense of entrapment in a narcotics case is not always available where the prosecution is aimed at the sale of contraband originally obtained from a government agent; the fact that a drug was provided by the government is certainly one factor to consider, but that factor must be considered along with all the other facts of the case.
    5. Criminal Law — Entrapment—Police Conduct — Idea for Crime — Opportunity to Commit Crime.
    Entrapment is not a defense where the record supports the conclusion that the idea for a crime did not originate with the police and that the police were merely responding to orders of those who had conceived the crime and providing them with an opportunity to commit the crime.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Assistant Prosecuting Attorney, for the people.

      John A. Lydick, Assistant State Appellate Defender, for defendant on appeal.
    Before: Danhof, C.J., and Bashara and Cynar, JJ.
   Per Curiam.

The people appeal as of right from a December 23, 1977, order of Jackson County Circuit Judge Russell A. Noble, dismissing an information against defendant on the ground of entrapment.

Defendant was arrested on August 14, 1977, and charged with the possession of heroin, a violation of MSA 335.341(4)(a); MSA 18.1070(41)(4)(a). On December 14, 1977, an entrapment hearing was held. At the hearing Detective Piziali of the Michigan State Police testified that he was contacted by the warden of the State Prison of Southern Michigan at Jackson. The wife of inmate Donald Mc-Allister had informed the warden that other inmates, who believed McAllister had outside drug connections, were pressuring McAllister to smuggle drugs into the prison. These inmates, led by "Redbone” Brown, claimed to have the cooperation of a guard at the prison. They wanted McAllister’s wife to deliver some drugs to the prison guard. The drugs would be brought into the prison by the guard and the heroin eventually delivered to Mc-Allister, who in turn would turn the drugs over to Redbone Brown. McAllister was willing to cooperate with the state police in apprehending the guard involved in the scheme.

Subsequently, however, Mrs. McAllister left the state. Thus, Detective Piziali obtained the assistance of trooper Janece Vortman, who agreed to pose as McAllister’s wife. In accordance with instructions relayed through McAllister, trooper Vortman obtained a hotel room at a local Holiday Inn. At the time, she was in possession of a packet of heroin provided by the state police laboratory.

On August 14, 1977, trooper Vortman received a call from a woman asking if she had a package. The caller, who said her husband was a prison guard, indicated that she would pick up the package. Vortman responded that she was instructed to deliver the package only to the guard. The caller then agreed to have her husband pick up the package.

Forty-five minutes later, defendant appeared at the hotel room and identified himself. He was given the heroin which was in a clear plastic packet. He was told it was fifty percent pure and that she didn’t want it "stepped on”. After examining the packet, defendant left the room. It was the intention of the police to arrest defendant after he returned to the prison. However, defendant did not go directly to the prison, but instead went toward his home. Fearing that the heroin might be lost, the police arrested defendant.

Defendant disclaimed any knowledge of a heroin smuggling operation. He testified that on the day of the exchange he was contacted by Dennis Hicks, an inmate at the prison. Hicks asked him to pick up a package for him at the Holiday Inn. Defendant claimed to know nothing about the contents of the package. He inferred from trooper Vortman’s comments at the time of the exchange that the package contained brown sugar.

Redbone Brown also testified at the hearing. He claimed to have no knowledge of any smuggling activities involving a prison guard. He claimed that McAllister had at one time approached him about smuggling drugs into the prison, but that he had refused to participate in such a venture.

Michigan has adopted the "objective test” for determining if entrapment has occurred. People v Turner, 390 Mich 7; 210 NW2d 336 (1973). That test, which was taken from Justice Stewart’s dissenting opinion in United States v Russell, 411 US 423; 93 S Ct 1637; 36 L Ed 2d 366 (1973), does not focus upon a defendant’s predisposition to commit the crime charged. Rather, the focus is on:

"whether the actions of the police were so reprehensible under the circumstances, that the Court should refuse, as a matter of public policy, to permit a conviction to stand.” Turner, supra, at 22.

In setting forth the objective test for entrapment, the Court further relied upon language from Justice Stewart’s dissent in Russell, supra, noting:

"But when the agents’ involvement in criminal activities goes beyond the mere offering of such an opportunity, and when their conduct is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it, then — regardless of the character or propensities of the particular person induced — I think entrapment has occurred. For in that situation, the Government has engaged in the impermissible manufacturing of crime, and the federal courts should bar the prosecution in order to preserve the institutional integrity of the system of federal criminal justice.” Turner, supra, at 21.

In ruling on a question of entrapment, the trial judge is required to make findings of fact, based upon the evidence presented at the hearing, People v Cancino, 70 Mich App 90, 94; 245 NW2d 414 (1976). The trial judge is required to consider the police conduct in relation to a hypothetical defendant, not one ready and willing to commit the crime. People v Zeegers, 61 Mich App 546, 550; 233 NW2d 76 (1975). Defendant has the burden of proving entrapment by a preponderance of the evidence. People v D’Angelo, 401 Mich 167, 183; 257 NW2d 655 (1977). Typically, those cases where entrapment has been found involve situations where the police have pressured the defendant into committing the crime, People v Duis, 81 Mich App 698, 703; 265 NW2d 794 (1978), or where they have in some way played upon his sympathies. People v Soper, 57 Mich App 677, 679; 226 NW2d 691 (1975).

However, in the present case, the facts fail to establish any such conduct on the part of the police. Rather, defendant relies upon the fact that the heroin which provides the basis for the possession charge was supplied by the police. In support of this theory, defendant cites People v Stanley, 68 Mich App 559; 243 NW2d 684 (1976). There, the Court held that the defense of entrapment is available where the prosecution is aimed at the sale of contraband originally obtained from a government agent. In addition, Stanley involved a situation where a state police detective feigned withdrawal sickness to bring about the sale.

The present case, however, involves neither an appeal to defendant’s sympathies, nor a "take-back” sale. Rather, the present case involves a situation where the police, in response to orders from the persons involved in the criminal enterprise, delivered a quantity of heroin to defendant. Although the fact that the drugs were provided by the government in this case is certainly one factor to consider, that factor must be considered along with all the other facts of the case.

We now hold that the trial judge erred in ruling that entrapment had occurred. The record supports the conclusion that the idea for the crime did not originate with the police. The police had no role in determining how the transfer of the drugs would be carried out. The police were merely responding to the orders of those who had conceived the crime.

We find certain language in People v Roy, 80 Mich App 714; 265 NW2d 20 (1978), to be applicable to this case. That case, like Stanley, supra, involved a "take-back” sale, where drugs were furnished to defendant by the police and later delivered to a different police agent. As is alleged in the present case, Roy, supra, involved a situation where an inmate, Berrier, was working with a prison guard, Roy, to bring in drugs provided by an inmate-informant. In upholding the police conduct against a claim of entrapment, the Court noted at 719-720:

"Roy, however, did not operate unless an inmate provided him with an outside source of drugs. To obtain the required evidence, therefore, it was necessary for the police to provide the outside contact. But the method of operation was not suggested by the police. The plan originated with Roy and Berrier. Nor did the police use any tactics calculated to induce the defendants to commit a crime they were not otherwise ready to commit. They merely followed instructions given them by Berrier.”

In the present case it was also necessary for the police to provide the outside contact in order to apprehend the guard who was allegedly smuggling the drugs into the prison. We do not believe that any "public policy” supports the notion that the police were required to refuse McAllister’s assistance. Rather, in going along with the smugglers’ preconceived plan, the police merely provided them an opportunity to commit the crime. This is not enough to support a claim of entrapment. People v Lassen, 65 Mich App 720, 722; 238 NW2d 384 (1975), Turner, supra, at 21.

* The decision of the trial judge is reversed and the case remanded for trial.

       The trial judge’s findings that the officers contacted defendant by telephone and that they supplied him with heroin when he followed their directions are not supported by the evidence. Instead, the evidence indicates that trooper Vortman obtained the hotel room at the direction of Redbone Brown and the other inmates and that she was contacted there by defendant’s wife.

      We note defendant’s claim that he did not know the package contained heroin. The determination of guilt or innocence is a separate consideration from that of entrapment. People v D’Angelo, 401 Mich 167, 176; 257 NW2d 655 (1977). Nothing said herein should be construed as bearing upon defendant’s guilt or innocence of the crime charged.

       In light of our disposition of this case, we do not find it necessary to address the prosecutor’s challenge to the "objective test” for entrapment.