author: T. M. Burns, J.

text:
    PARTRICH v MUSCAT
    Docket No. 77-3942.
    Submitted March 20, 1978, at Detroit.
    Decided July 18, 1978.
    Plaintiffs Spencer M. Partrich and Alvin A. Weisberg negotiated a land contract purchase of a mobile home park from Virginia, Inez and Anthony Muscat, defendants. The original land contract warranted that the property was serviced by municipal sewer and water, that the sewer, water, electrical and road systems had no hidden, latent or major defect and that the property violated no regulations of the Michigan State Department of Health or of any other governmental or municipal authority of any type whatsoever. After the agreement was signed the township electrical inspector inspected the park, found several deficiencies and ordered the electrical system be brought up to code. The sellers and purchasers then negotiated and executed a second writing providing for a reduced purchase price and down payment in consideration for accepting the electrical violations and accepting the property in "as is” condition. A land contract was signed and recorded which recited acceptance as is and incorporated a rider warranting that the property was serviced by city sewer and water. After assuming possession plaintiffs were notified that the property’s storm sewer was illegally connected to the sanitary sewer. Plaintiffs demanded reimbursement of the cost to correct this violation from defendants, and, when refused, sued, alleging breach of warranty and misrepresentation. The Macomb Circuit Court, Hunter D. Stair, J., granted summary judgment to defendants based on the "as is” clause of the contract. Plaintiffs appeal. Held:

    1. A motion for summary judgment on the ground that the complaint fails to state a cause of action is to be tested by the pleadings alone and tests the legal basis for the complaint, not whether it can be factually supported; judgment statement was not appropriate under this standard.

      References for Points in Headnotes
    [1] 73 Am Jur 2d, Summary Judgment §§ 17, 29, 32.
    [2] 73 Am Jur 2d, Summary Judgment §§ 26, 32.
    [3] 30 Am Jur 2d, Evidence §§ 1040, 1069, 1070, 1074.

      2. A motion for summary judgment on the ground that there is no genuine issue as to any material fact tests whether there is factual support for a claim and is to be tested by the pleadings, affidavits, depositions, admissions and other documentary evidence available to the court and is properly granted only where it is impossible for the claim asserted to be supported by evidence at trial; there are two issues of fact which, in light of the warranty that the property was serviced by city sewer and water, prevent the granting of summary judgment; namely, what did the' "as is” clause apply to and what did it mean.
    3. Parol evidence is admissible to explain what the "as is” clause applied to and what it meant because the term is ambiguous in the land contract read as a whole.
    Reversed and remanded.
    Cynar, J., concurred in result only.
    1. Motions — Summary Judgment — Cause of Action — Pleadings— Court Rules.
    A motion for summary judgment on the ground that the complaint fails to state a cause of action is to be tested by the pleadings alone and tests the legal basis of the complaint, not whether it can be factually supported (GCR 1963, 117.2[1]).
    2. Motions — Summary Judgment — Genuine Issue of Material • Fact — Standard of Determination — -Court Rules.
    A motion for summary judgment on the ground that there is no genuine issue as to any material fact tests whether there is factual support for a claim and is to be tested by the pleadings, affidavits, depositions, admissions and other documentary evidence available to the court and is properly granted only where it is impossible for the claim asserted to be supported by evidence at trial (GCR 1963, 117.2[3]).
    3. Evidence — Contracts—Land Contracts — Parol Evidence — Ambiguities.
    Parol evidence is admissible to explain ambiguous terms in a land contract.

      Weiner & Hauser, for plaintiffs.

      William M. Havey, for defendants.

      Before: D. C. Riley, P. J., and T. M. Burns and Cynar, JJ.
   T. M. Burns, J.

Plaintiffs appeal by right from the grant of summary judgment to defendants. Plaintiffs Spencer Partrich and Alvin Weisberg, are the vendees in a land contract involving the sale of a mobile home park in Macomb County. Defendants Virginia, Anthony and Inez Muscat, are the vendors. To understand the issues involved, a detailed statement of facts is necessary.

Plaintiffs began negotiations to purchase the mobile home park through their agent. A purchase agreement was signed by the agent in October of 1974 which contained the following clauses:

"(1) Seller warrants that there are no violations with the Michigan State Department of Health, or any other governmental or municipal authority, of any type whatsoever.
"(6) Seller represents and warrants that the subject property is serviced by municipal sewer and water, and further, that the sewer, water, electrical and road systems in the mobile home park have no hidden, latent or major defects.
"(10) All representations contained herein shall be considered as made of the date hereof and also as of the date of closing and shall survive the closing.”

After the agreement was signed, the township electrical inspector inspected the park and noted several deficiencies in the park’s electrical work. An order to bring the electrical system up to code standards was issued. This led to renewed negotiations between the parties.

On November 29, 1974, the sellers signed a second writing reducing the purchase price and down payment by some $5,000. This writing contained a clause stating:

"In consideration of this reduction, the purchaser will accept the electrical violations from the Harrison Township Electrical Department, attached hereto and made a part hereof. Purchasers to accept the above named park in 'as is’ condition.”

The first sentence of this clause is typed, the second is handwritten. This writing was not signed by the purchasers or their agent.

The land contract was signed and recorded January 23, 1975. The "additional clauses” section of the contract states:

"See rider attached hereto and made a part hereof. That the purchasers accept the trailer park AS IS. However, there are no violations with the Michigan Department of Health.”

These two sentences were originally part of a larger clause, some of which had been lined out. The rider attached to the land contract provided in part:

"Sellers represent and warrant to Purchasers as follows:
"A. The subject premises is a duly licensed forty-five (45) site mobile home park serviced by City sewer and water.
"D. The foregoing representations and warranties shall survive the closing.”

Sometime after they took possession, the superintendent of the township water and sewer department notified plaintiffs that the storm sewer for the trailer park was illegally connected to the sanitary sewer system. Plaintiffs claim they incurred liabilities of approximately $12,000 to correct the violation and satisfy their liability to the township. After a demand for reimbursement was rejected, this suit followed.

In a one count complaint, plaintiffs alleged the facts noted above and claimed that defendants were liable for the "defect” in the sewer system under a breach of warranty or misrepresentation theory. Plaintiffs also alleged that, short of digging up the entire system, there was no way the illegal connection could have been discovered before closing.

Defendants answered, denying any personal responsibility for the illegal sewer connection and alleging that the "as is” clause in the land contract precluded imposing either warranty or misrepresentation liability on them. Defendants filed a motion for summary judgment based on the "as is” clause. After a hearing, at which both parties submitted affidavits, the trial court ruled that the meaning of the "as is” clause had a "definite meaning” and granted the summary judgments.

Before turning to the merits of the appeal, it is necessary to mention one point about the record presented. Nowhere in the lower court record, either in the motion presented by defendants or the judgment entered by the court, is there any indication of which subrule of the summary judgment rule was being relied on. GCR 1963, 117.2(1) and 117.2(3) are based on entirely different theories. One tests the legal basis of the claim, the other the factual basis. See Durant v Stahlin, 375 Mich 628; 135 NW2d 392 (1965). Unless the applicable subrule under which a party is proceeding is identified, the trial court’s job of deciding the motion and our review on appeal become much more difficult. See, Bashara, The Illusive Summary Judgment Rule: Sifting Through the Maze, 1976 Det Col L Rev, 397, 400. Unless attorneys devote more thought and consideration to the basis upon which such motions are brought, the problem is likely to be further compounded with the consolidation of present rules 116 and 117 in the future. See proposed MCR 2.116, 402A Mich 127, 127-135. At some point, counsel and trial courts may be subjected to a summary remand to clarify the grounds upon which such a judgment is granted.

Was Summary Judgment Appropriate Under GCR 1963, 117.2(1)?

The standard governing this Court’s review of a grant or denial of a motion for summary judgment based on GCR 1963, 117.2(1) is well settled. The motion is to be tested by the pleadings alone. Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974), lv den, 391 Mich 816 (1974). The motion tests the legal basis of the complaint, not whether it can be factually supported. Borman’s, Inc v Lake State Development Co, 60 Mich App 175; 230 NW2d 363 (1975). The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under this subrule should be denied. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426; 202 NW2d 577 (1972).

Applying this standard to the pleadings in the present case leads to the conclusion that summary judgment under rule 117.2(1) was inappropriate. Plaintiff had sufficiently pled a cause of action for breach of warranty and misrepresentation.

Was Summary Judgment Appropriate Under GCR 1963, 117.2(3)?

A motion for summary judgment which is based on GCR 1963, 117.2(3) is designed to test whether there is factual support for a claim. Crowther v Ross Chemical & Manufacturing, supra.

When passing upon a motion under this subrule, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence then available to it. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). Before the judgment may properly be granted the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Rizzo v Kretschmer, supra. The motion has the limited function of determining whether material issues of fact exist. The trial court must carefully avoid making findings of fact under the guise of determining that no issues of material fact exist.

In the present case, the defendants urge that the "as is” language of the contract precluded any finding of a warranty or a breach thereof. The trial court agreed, presumably because it found the land contract and riders to be a fully integrated, unambiguous expression of the party’s intent. The lower court must also have found that the parol evidence rule would prevent introduction at trial of the material contained in the affidavits in opposition to summary judgment, see Vickers v American Oil Co, 26 Mich App 245; 182 NW2d 592 (1970), which claim that the "as is” language referred only to the electric system and that there was no intent to waive the warranties made in the purchase agreement with regard to the other items.

There seem to be two questions: (1) what did the "as is” clause apply to; and (2) what did it mean, i.e., what was the party’s intent? From examining the entire contract, including the warranty that the park is "serviced by [c]ity sewer and water” contained in the rider, we hold there is sufficient ambiguity, in light of the surrounding circumstances, to prevent the grant of summary judgment. A phrase may have a "definite meaning” in one context and be ambiguous in another. Cf. Robinson v Carter, 77 A2d 174 (DC, 1950).

Whatever the phrase "as is” has come to mean in contracts dealing with the sale of personalty, see UCC 2-316 (MCL 440.2316; MSA 19.2316), it has no similarly accepted meaning when the subject of the contract is realty. Indeed, those few cases considering an "as is” clause in a real estate transaction have not construed it as precluding recovery for some physical defect in the land. See, Anno: Construction and Effect of Provision in Contract for Sale of Realty by Which Purchaser Agrees to Take Property "as is” or in the Condition in Which it is, 97 ALR2d 849.

The parol evidence rule does not bar introduction of evidence to explain ambiguous terms.

"As a general rule, ambiguous written expressions are subject to explanation by oral testimony. Thus, when the terms of a written instrument are uncertain and ambiguous and are susceptible of more than one interpretation, parol evidence may be introduced to show what was in the minds of the parties when the contract was made, and in this respect, not only preliminary negotiations but also the surrounding circumstances, may be considered.” (Footnotes omitted.) 11 Michigan Law and Practice, Evidence, § 216, p 420.

In the context of this case, the term "as is” is ambiguous. This is especially so in light of the warranty dealing with the sewer system in the original purchase agreement, the trouble with the electrical system and subsequent price adjustment, and the warranty which is included in the land contract itself. Although the questions may ultimately be for the court, to rule on them on the present record was error. Such decisions should be made only after all the evidence has been presented.

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

Cynar, J., concurs in result only.

       Because the summary judgment was granted no testimony has been taken. This statement of facts is drawn from the pleadings and other documents in the file taken in a light most favorable to the plaintiffs.

       The clause as originally written provided: "That the purchasers are professional trailer park owners and that in consideration of the purchase price herein that they accept the trailer park AS IS with no recourse whatsoever for any changes or improvements that may be necessary in the future and will hold the sellers free and harmless for whatever may have to be done in the future by way of changes or improvements in the park. However, there are no violations with the Michigan Department of Health.”
      The affidavit of Spencer Partrich in opposition to defendants’ motion for summary judgment states that part of the clause was lined out because he and Weisberg refused to sign the contract as originally written.

       "The material fact to which reference is made in the rule is the ultimate fact issue upon which a jury’s verdict must be based. For example, in a contract case the material fact, or ultimate fact, as distinguished from the evidentiary fact, is the meeting of the minds, rather than merely that the parties conferred; the payment and receipt of consideration, not just that money passed hands; the breach of a material condition, rather than just that defendant delivered the goods on a day after the date promised. For further example, in a negligence case the material fact, or ultimate fact, as distinguished from the evidentiary fact, is that plaintiff was within a zone of foreseeable danger, rather than merely that plaintiff was walking along the road on which defendant’s car was traveling; that defendant’s negligence, if found, was the proximate cause of the collision, not just that there was an impact between plaintiff and defendant’s car; that plaintiff was contributorily negligent, rather than just that he was walking on the paved portion of the highway. In short, the difference between evidentiary fact and material fact, or ultimate fact, is the difference between the raw data admissible in evidence and the inferences or conclusions of facts essential to the claim or defense which properly may be drawn or reached by a jury from such data.” Simerka v Pridemore, 380 Mich 250, 275; 156 NW2d 509 (1968) (opinion of Soukis, J.)


source: Caselaw Access Project

author: Deming, J.

license: Public Domain

text:
    GARRISON v FARM BUREAU MUTUAL INSURANCE COMPANY
    Docket No. 77-4359.
    Submitted May 8, 1978, at Lansing.
    Decided July 18, 1978.
    Edna Garrison was involved in a collision while driving an automobile owned by her husband Frank Garrison, and, as a result, two suits for damages were filed against her. Edna also owned an automobile, which was insured by Farm Bureau Mutual Insurance Company. The Garrisons brought an action for a declaratory judgment that the Farm Bureau policy extended liability coverage to Edna under a "non-owned” automobile provision. The Tuscola Circuit Court, Martin E. Clements, J., entered a declaratory judgment in favor of Farm Bureau, finding that it has no obligation to the Garrisons under the terms of the policy. Plaintiffs appeal. Held:

    In this case the husband was a "named insured” as defined in the wife’s policy because of his status as a resident spouse of the person named in the declaration. Because the policy excludes liability coverage for any automobile owned by the "named insured” other than the automobile described in the declaration, there is no coverage available in this case. The statute which requires liability coverage when an insured is operating a non-owned automobile does not require that liability coverage be extended to Mrs. Garrison.
    Affirmed.
    1. Insurance — Contracts—Ambiguity—Interpretation.
    Generally, any ambiguity in an insurance contract will be resolved in favor of the insured; however, provisions which are not ambiguous must be interpreted as written.
    2. Automobiles — Insurance—Statutes—Named Insured — Other Automobiles.
    A statute regarding the provision of liability insurance for a driver who is operating an automobile not owned by him does not require an insurer to provide liability coverage to a named insured who is operating an automobile owned by her husband, who because of a policy provision is also a "named insured”, and where the policy excludes coverage for automobiles owned by a named insured other than the automobile described in the policy (MCL 257.520[c]; MSA 9.2220[c]).

      References for Points in Headnotes
    [1] 43 Am Jur 2d, Insurance § 257.
    [2] 7 Am Jur 2d, Automobile Insurance § 103.
    Construction and application of automobile insurance clause or substitution provision of automobile liability or indemnity policy. 34 ALR2d 936.

      Conlin, Conlin & McKenney, for plaintiffs.

      Mainolñ, McGraw & Borchard, for defendant.
    Before: Beasley, P. J., and Allen and H. E. Deming, JJ.

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

   Deming, J.

On September 28, 1973, plaintiff, Edna Garrison, while driving her husband’s car, was involved in an automobile accident. As a result, two suits for damages have been filed against her. Plaintiffs sought a declaratory judgment to the effect that she was covered under the extended liability provisions of her insurance policy issued by defendant which provided liability coverage whenever she operated a "non-owned” automobile. The trial court entered an order of declaratory relief for the defendant holding that under the terms of the policy defendant was not liable to provide coverage. Plaintiffs appeal as of right.

Before the plaintiffs’ marriage on June 30, 1973, both plaintiffs owned their own automobiles. These automobiles were insured with different insurance companies. Both of the policies purchased before ' the marriage were still in effect at the time of the accident.

The relevant portions of the insurance policy provide:

"Part I - Liability
"Coverage A — Bodily Injury Liability; Coverage B— Property Damage Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
"A. bodily injury, * * * .
"B. * * * 'property damage’; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile.
"Definitions: Under Part I:
" 'named insured’ means the individual named in the declarations and. also includes his spouse, if a resident of the same household.
" 'non-owned automobile’ means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile;”

Although the structure of the policy provisions is rather complex, the policy in substance states that the insurer will "pay * * * all sums which the insured shall become legally obligated to pay as damages * * * arising out of the * * * use of the owned automobile or * * * [any automobile or trailer, not owned by] * * * [the individual named in the declarations and * * * his spouse, if a resident of the same household]”. Although it is a general rule that any ambiguity in an insurance contract will be resolved in favor of the insured, Vermont Mutual Ins Co v Dalzell, 52 Mich App 686, 691; 218 NW2d 52 (1974), these provisions are not ambiguous and must be interpreted as written, Western Fire Ins Co v J R Snyder, Inc, 76 Mich App 242; 256 NW2d 451 (1977).

Plaintiffs also argue that if the policy provisions are interpreted so that coverage is not provided in this situation, then they are void as being against the public policy of the State of Michigan as set out in the financial responsibility act, MCL 257.501 et seq.; MSA 9.2201 et seq., MCL 257.520(c); MSA 9.2220(c) reads in part:

"Such operator’s policy of liability insurance shall insure the person named as insured therein against loss from the liability imposed upon him by law for damages arising out of the use by him of any motor vehicle not owned by him.”

Plaintiffs claim that since Edna is a named insured under the policy and since she did not have legal ownership of the vehicle involved in the accident, the statute requires that liability coverage be provided. However, we do not read the statute to require coverage in this situation. Under the insurance policy provisions, the husband was a "named insured”. His status, via contract, as a "named insured”, by virtue of the fact that he is the spouse of the "individual named in the declaration” has been recognized by this Court, see Hickman v Community Service Ins Co, 78 Mich App 1, 5-6; 259 NW2d 367 (1977). Since the husband is a "named insured” under the policy, the statute does not require that liability coverage be provided for any automobile owned by him except for the owned automobile described in the policy. Since Edna was operating an automobile owned by the named insured which was not the owned automobile described in the policy, MCL 257.520(c); MSA 9.2220(c) does not require that the insurance policy provide liability coverage for this accident.

Although not controlling, it should be noted that this same result was reached by the Florida Supreme Court in Boyd v United States Fidelity & Guaranty Co, 256 So 2d 1 (Fla, 1971). The facts in that case are virtually identical except for the fact that in Boyd, supra, the insureds had each renewed their separate pre-marital insurance policies after they were married and before the accident occurred. The reasoning used and the conclusions reached by the Court in Boyd, supra, are persuasive. Not only does the wording of the statute and the policy provisions support this result, but also the policy behind the statute. Extended coverage or "drive other cars” provisions have been available for a long time. The rationale behind these provisions was succinctly stated in Couch on Insurance;

"The purpose of the 'drive other cars’ provision in an automobile liability policy is to cover occasional or incidental use of other cars without the payment of an additional premium, but to exclude the habitual use of other cars, which would increase the risk on the insurer without a corresponding increase in the premium. The policy is not intended to cover the insured against personal liability with respect to his use of another automobile which he frequently uses or has the opportunity to use. More specifically, the evident intention of the limitation with respect to other automobiles is to prevent a situation in which the members of one family or household may have two or more automobiles actually or potentially used interchangeably but with only one particular automobile insured.” 13 Couch on Insurance 2d, § 45:1052, p 68.

Since the availability of extended coverage and the rationale behind it were known to the Legislature when the financial responsibility act was enacted, it seems reasonable to conclude that the Legislature recognized this rationale and drafted the "owned (but not designated) vehicle” exclusion to further the policies reflected in the rationale. In conclusion, MCL 257.520(c); MSA 9.2220(c) does not require that the defendant provide liability coverage for plaintiff when driving her husband’s automobile since that automobile is owned by a "named insured” under the policy and is not the owned vehicle described in the policy.

Plaintiffs also argue that the denial of plaintiff Edna’s right to use the benefits of her policy causes a violation of the public policy in favor of marriage. Since the husband’s insurance company would have included plaintiff Edna’s automobile on the husband’s policy, or vice versa, upon notification of the marriage and upon the payment of any required premium, we believe this argument to be without merit.

Affirmed. Costs to defendant.


author: Bashara, J.

text:
    BERMAN v BERMAN
    Docket No. 77-4382.
    Submitted May 4, 1978, at Grand Rapids.
    Decided July 18, 1978.
    Leave to appeal applied for.
    Plaintiff Richard I. Berman and defendant Loretta M. Berman were divorced and custody of their 2-1/2 year-old adopted daughter was awarded to plaintiff with a provision that required the parties to petition the court after six months for a review and reevaluation of the custody determination. The court, prior to the later custody hearing, denied plaintiffs motion in limine to require defendant at the hearing to show by clear and convincing evidence that a change of custody would be in the best interests of the child, holding that its previous order of custody was only temporary, to afford the court an opportunity to assess defendant’s progress toward recovery from her past history of mental disorder and substance abuse, and holding that, since permanent custody had not been established by its previous order, the clear and convincing evidence standard was inapplicable. The Berrien Circuit Court, William S. White, J., found that plaintiff was endeavoring to destroy the relationship between the child and the defendant so that plaintiffs present wife could be substituted as the child’s mother, that maintenance of the relationship between the child and both adoptive parents was important to the child’s welfare and that defendant would preserve those relationships. In granting custody to defendant the trial court stated that where the evidence indicates that the parties are equally capable of assuming custody of the child, the mother should be preferred. Plaintiff moved the trial court and this Court to stay the change of custody pending appeal, which requests were denied. Plaintiff appeals. Held:

    1. Under the statute requiring a court to consider relevant factors in a child custody dispute to determine the best interests of the child a court may properly consider the age and sex of the child.
    2. An established custodial environment arises where over an appreciable time the child naturally looks to the custodian in such environment for guidance, discipline, the necessities of life and parental comfort, and may develop whether custody for an extended period of time is pursuant to a permanent or temporary custody order; where, as in this case, an established custodial environment exists, it should be shown by clear and convincing evidence that a change in custody is in the best interests of the child before a change in custody is warranted.

      References for Points in Headnotes
    [1] 24 Am Jur 2d, Divorce and Separation §§ 783, 785.
    [2, 3] 24 Am Jur 2d, Divorce and Separation §§ 809, 820.

      3. Despite the fact that custody was changed to defendant and that a further change may further undermine the policy of the Child Custody Act, the trial court must make findings of fact consistent with the proper evidentiary standard.
    Remanded with instructions.
    1. Divorce — Child Custody- — Statutes—Best Interests of the Child — Age and Sex of Child as Relevant Factors.
    Under the statute requiring a court to consider relevant factors in a child custody dispute to determine the best interests of the child a court may properly consider the age and sex of the child (MCL 772.23Q]; MSA 25.312[3] £j]).
    2. Divorce — Child Custody — Statutes—Temporary Custody Orders.
    A statute granting a trial court authority to take "any other action considered to be necessary in a particular child custody dispute” gives a trial court discretionary authority to issue divorce judgments containing custody orders reviewable after the expiration of a specified period of time (MCL 722.27[f]; MSA 25.312[7][f|).
    3. Divorce — Child Custody — Statutes—Custodial Family Units— Permanent and Temporary Custody Orders.
    The Legislature has afforded stability to the custodial family units created in the wake of divorce proceedings by requiring that established custodial arrangements remain unaltered except where change is clearly and convincingly shown to be necessary for the child’s benefit; an established custodial environment arises where over an appreciable time the child naturally looks to the custodian in such environment for guidance, discipline, the necessities of life and parental comfort, and may develop whether custody for an extended period of time is pursuant to a permanent or temporary custody order (MCL 722.27[c]; MSA 25.312[7] [c]).

      Chabot & Burch, P. C., for plaintiff.

      Spelman, Taglia, Meek, Lagoni, Burdick & Sauer, for defendant.
    Before: D. E. Holbrook, Jr., P. J., and Bashara and R. M. Maher, JJ.
   Bashara, J.

Plaintiff appeals from a judgment of the trial court awarding custody of the litigants’ four-year-old adopted daughter to defendant. Custody was previously awarded to plaintiff pursuant to a provision in the parties’ divorce decree that required them to petition the court after six months for a review and reevaluation of the custody determination.

Prior to the custody hearing, plaintiff made a motion in limine to require the defendant at the hearing to show by clear and convincing evidence that a change in custody was in the best interests of the child. Plaintiff argued that, notwithstanding the custody provision in the divorce judgment requiring review and reevaluation at the end of six months, an established custodial environment existed within the meaning of the Child Custody Act of 1970. As a consequence, plaintiff contended, the act enjoined the trial court to change the custodial environment only upon clear and convincing evidence that the change would be in the best interests of the child.

The trial court rejected plaintiffs position. Construing its previous custody order, the trial court concluded that it provided for only temporary custody by plaintiff. The trial court further stated that temporary custody by plaintiff for six months was intended to afford the court an opportunity at the ensuing custody hearing to assess defendant’s progress toward recovery from her past history of mental disorder and substance abuse.

Because permanent custody had not been established by its previous judgment, the trial court held that the clear and convincing evidentiary standard was inapplicable. Therefore, the court concluded that it would exercise its discretion in evaluating the evidence presented at the hearing and decide who was to have permanent custody on the basis of the criteria specified in § 3 of the act.

A thorough review of the custody hearing record discloses that the evidentiary support for awarding custody to either parent was rather evenly balanced. Each of the parties introduced testimony from friends, neighbors, and experts in psychology and psychiatry attesting to their qualifications as custodial parents. Defendant also introduced testimony from her treating psychiatrist to establish her progress toward emotional stability and rehabilitation from substance abuse.

The trial court evaluated the evidence adduced and made findings of fact on each of the factors specified in § 3 of the act. Although the trial court perceived the litigants as relatively equivalent in capacity to assume the role of custodial parent, one aspect of the plaintiffs behavior permeated the trial court’s findings and became dispositive. The court found that plaintiff was endeavoring to destroy the relationship between the child and defendant so that plaintiffs present wife could be substituted for her as the child’s mother. Concluding that maintenance of the relationship between the child and both plaintiff and defendant was important to the child’s welfare, the trial court found that defendant would preserve those relationships. Therefore, custody was awarded to defendant.

At the conclusion of its findings, the trial court stated that where the evidence indicates that the parties are equally capable of assuming custody of the child, the mother should be preferred. Plaintiff argues that this stated preference demonstrates a bias of the trial court in favor of defendant tantamount to an unconstitutional discrimination on the basis of sex.

The foregoing statement was made by the trial court in assessing the final factor listed in § 3 of the act. That provision allows the court to examine, "Any other factor considered by the court to be relevant to a particular child custody dispute”. MCL 722.23(j); MSA 25.312(3)(j). This continues the broad scope of discretion exercised by trial courts in child custody cases. Such discretion enables the court to explore every aspect of the litigants’ circumstances so that its custody determination will reflect the child’s best interests.

We will not unnecessarily circumscribe that discretion by imposing an absolute prohibition on the trial court’s consideration of a child’s age and sex as indicia of a need for a particular custodial parent. Under the circumstances of a child custody case, that may be but one of many legitimate considerations in ascertaining the best interests of the child. Of course, that factor cannot, of itself, control the trial court’s decision, since the act mandates that in disputes between parents for custody, it is the best interests of the child that control the resolution. MCL 722.25; MSA 25.312(5). See also Zawisa v Zawisa, 61 Mich App 1; 232 NW2d 275 (1975).

Reviewing the trial court’s findings, we are unable to conclude that defendant’s sex was the controlling factor motivating the trial court’s decision. It is, perhaps, unfortunate that the exact words were used to describe the "other circumstances” influencing the trial court’s judgment. Nonetheless, it appears that the trial judge was simply and literally applying the mandates of the Child Custody Act seriatim to ascertain the best interests of the child. All factors specified by the act, not merely the finding under § 3(j), were carefully considered. After weighing these factors in their entirety, the court concluded that the best interests of the child required awarding custody to defendant.

Plaintiff maintains that the trial court was without authority to make an award of temporary custody in the divorce decree. Being without such authority, plaintiff urges that the custody order in the decree, in conjunction with the duration of custody thereunder, created an established custodial environment. As a consequence, plaintiff argues that the trial court abused its discretion by changing custody without clear and convincing evidence that it was in the best interests of the child.

Our Legislature has afforded stability to the custodial family units created in the wake of divorce proceedings by requiring that established custodial arrangements remain unaltered except where change is clearly and convincingly shown to be necessary for the child’s benefit. MCL 722.27(c); MSA 25.312(7)(c). However, the Legislature has also granted authority to the trial courts to "[t]ake any other action considered to be necessary in a particular child custody dispute”. MCL 722.27(f); MSA 25.312(7)(f). We construe this provision as forming the necessary base of discretionary authority for trial courts to issue divorce judgments containing custody orders reviewable after the expiration of a specified period of time.

As in the case under review, the trial court may require additional information about the parties competing for custody that is not available at the time the divorce judgment is issued. Child custody decisions are of great moment and should be formulated upon accurate and complete information concerning the contesting parties. Therefore, legal precedent in Michigan has found it to be within the trial court’s discretion to suspend final determination of custody disputes for specified periods to obtain information necessary to its decision. See McLay v McLay, 354 Mich 19, 27; 91 NW2d 824 (1958). We deem § 7(f) of the act to be a legislative reaffirmation of that discretionary authority.

However, this authority must not be utilized in a manner that undermines the objectives of the Child Custody Act. In the instant case, the child remained under the care and control of plaintiff for one-third of her life before the court’s order was reviewed and custody changed to defendant. We discern from these circumstances a potential for adversely affecting the stability of the custodial family unit so vital to the welfare of the child.

The record contains testimony from psychologists indicating that after an extended period of time a child becomes accustomed to its custodial surroundings. A dependency upon that environment develops so that a sudden change of custody presents a significant probability that the emotional well-being of the child will be deleteriously affected.

Achieving that stability is a declared public policy in § 7, where the Legislature has utilized the concept of an "established custodial environment”. That environment arises where "over an appreciable time the child naturally looks to the custodian in such environment for guidance, discipline, the necessities of life and parental comfort”. MCL 722.27(c); MSA 25.312(7)(c). Those indicia may develop whether custody for an extended period of time is pursuant to a "permanent” or so-called "temporary” custody order. Merely denominating a custody order as "temporary” will not foreclose the creation of an established custodial environment or ameliorate the adverse consequences of disrupting that environment by a change in custody on less than clear and convincing evidence that the change is in the best interests of the child.

From our de novo review of the record, we conclude that substantial evidence was presented to support a finding that the custodial environment was established with plaintiff. The custody order was permanent, not temporary, and the proper evidentiary standard which should have been applied is that of clear and convincing evidence.

We realize that the situation here is a particularly troublesome one, with no easy answers. Motions to the trial court and this Court for a stay of the custody order were denied. Consequently, the child has now been in defendant’s custody since November, 1977. To subject the child to another custody change may further undermine the policy of the custody act.

We find it the simplest and most practical solution to remand the case to the trial court. The judge is to consider his previous custody order as permanent in nature. He must therefore weigh his decision as to which parent should have custody according to the clear and convincing evidence standard of § 7(a); that is, custody can be changed from plaintiff to defendant only if the court is convinced by clear and convincing evidence that it is in the best interests of the child to do so. Should the court find by clear and convincing evidence that custody should reside with defendant, he should reaffirm his earlier decision, explaining what the evidence is and why it clearly and convincingly persuades him his original decision was correct.

Remanded in accordance with the directions contained herein. We retain no further jurisdiction.

       MCL 722.27; MSA 25.312(7), which provides as follows:
      “If a child custody dispute has been submitted to a circuit court as an original action under this act or has arisen incidentally from other actions therein or orders or judgments thereof, for the best interests of the child the court may:
      (c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches the age of 18 years or in exceptional circumstances, until the child reaches majority. The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in such environment for guidance, discipline, the necessities of life and parental comfort. The age of the child, the physical environment and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.”

       At both the divorce proceeding and the subsequent custody hearing, evidence was presented and defendant readily acknowledged that she has had emotional problems, including a number of suicide attempts, and has engaged in the misuse of alcohol and drugs for more than a decade. During that period of time, she voluntarily submitted herself for hospitalization and out-patient treatment on numerous occasions in an effort to rectify those problems. As of the date of the custody hearing, defendant was receiving psychiatric consultation to aid her recovery progress.

       MCL 722.23; MSA 25.312(3), which specifies the factors to be evaluated by the court in ascertaining the best interests of the child in custody dispute cases. It is those interests that control the resolution of such controversies. See MCL 722.25; MSA 25.312(5), Burghdoff v Burghdoff, 66 Mich App 608; 239 NW2d 679 (1976).

       The trial court phrased this preference in the following terms: "The Court recognizes that both parents dearly love'Annelise and that both are capable of according her love, care and moral and intellectual guidance. The Court may be old fashioned in this age of ERA and women’s liberation, but, all things being equal, the Court feels that a female child of Annelise’s age needs the motherly touch and guidance in developing the moral tone and skills she will need in maturity. As our Supreme Court said in Terbush v Terbush, 328 Mich [703] 708, [44 NW2d 836] (1950): 'Children need a mother’s care, and a strong showing is necessary before they will be taken from her.’ ”

       Additionally, to lend finality to the trial courts’ determinations, the Legislature has provided for limited appellate review, requiring in § 8 of the act that, "all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue”. MCL 722.28; MSA 25.312(8).

       The child resided with plaintiff for approximately eight months under a pretrial custody order. After rendition of the divorce judgment, the child remained in plaintiff’s custody for another year before custody was awarded to defendant. At the time of the latter order the child was approximately four and one-half years old.

        See Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975), lv den, 394 Mich 794 (1975), Outcalt v Outcalt, 40 Mich App 392; 198 NW2d 779 (1972).


author: R. M. Maher, J.

text:
    PEOPLE v WASHINGTON
    Docket No. 77-5070.
    Submitted May 4, 1978, at Grand Rapids.
    Decided July 18, 1978.
    Louis Washington was bound over on two counts of murder. At the preliminary examination Clarissa, the four-year-old daughter of the two murder victims, was allowed to testify. She was the only witness to the slayings. She testified that on the night of the killings, March 20, 1975, three men had entered the home where she lived with her parents and that one of the men was wearing a cast. She also testified that the man wearing a cast was carrying a gun. It was established by other witnesses at the preliminary examination that the defendant had been wearing a cast on one leg during the time in question. However, at the preliminary examination Clarissa was twice walked through the courtroom but she could not identify anyone present as being the person she had seen in her home the night of the killing. The defendant was present in the courtroom. The final witness at the preliminary examination was Kate Visser, a police detective. She testified that on March 21, 1975, she first interviewed Clarissa and that on March 25, 1975, she showed Clarissa ten photographs. Officer Visser further testified that Clarissa selected three photos, including that of the defendant, as being the men who entered her home on the night of the murder. Subsequent to being bound over the defendant filed a motion to quash the information. The motion to quash was denied, Kent Circuit Court, George R. Cook, J. The defendant appeals by leave granted, contending that it was reversible error for the examining magistrate to allow the admission of officer Visser’s hearsay testimony concerning Clarissa’s prior identification of the defendant and to rely on that testimony to determine that there was probable cause to believe that the defendant was the person who committed the charged offenses. Held:

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 440 et seq.

    [2] 29 Am Jur 2d, Evidence § 373.
    Admissibility of evidence as to extrajudicial or pretrial identification of accused. 71 ALR2d 449.
    [3] 29 Am Jur 2d, Evidence §§ 496, 497.
    [4] 29 Am Jur 2d, Evidence § 708 et seq.

    Time element as affecting admissibility of statements by victim of sex crime as res gestae. 19 ALR2d 579.

      1. The hearsay testimony of Officer Visser was not admissible under the "tender years” exception to the hearsay rule.
    2. The testimony also was not admissible as part of the res gestae because the statements by Clarissa were too remote in time to be considered spontaneous and unreflecting within the special context of the res gestae.
    Reversed and remanded.
    1. Criminal Law — Evidence—Preliminary Examination — Legally Admissible Evidence — Probable Cause.
    The recognized rules of evidence apply at a preliminary examination; before an accused can be bound over by an examining magistrate there must be a showing from legally admissible evidence that a crime has been committed and that there is probable cause to believe that the accused committed it.
    2. Criminal Law — Evidence—Out-of-Court Identification — Third-Person’s Testimony.
    A third party may not testify about another person’s out-of-court identification of an accused.
    3. Evidence — Criminal Law — Hearsay—Tender Years Exception— Victim of Sex Offense.
    The tender years exception to the hearsay rule is limited to allowing the admission of statements made to a third party by a young victim of an alleged sex offense.
    4. Evidence — Statements—Res Gestae Statements.
    In order for a statement to qualify as part of the res gestae (1) there must be a startling occasion, startling enough to produce nervous excitement, and render the utterance spontaneous and unreflecting, (2) the statement must have been made before there has been time to contrive and misrepresent and (3) the statement must relate to the circumstances of the occurrence preceding it.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Assistant Prosecuting Attorney, for the people.

      Varnum, Riddering, Wierengo & Christenson (by Dennis C. Kolenda), for defendant on appeal.
    Before: D. E. Holbrook, Jr., P. J., and Bashara and R. M. Maher, JJ.
   R. M. Maher, J.

On October 27, 1977, defendant was bound over to Kent County Circuit Court on two counts of murder. MCLA 750.316, 750.317; MSA 28.548, 28.549. A motion to quash was filed on November 14, 1977, but an order denying that motion was entered on December 18, 1977. By order dated January 20, 1978, this Court granted leave to appeal.

Russell and Jacqueline Palmer were slain in their home on March 20, 1975. The only witness to the slayings was decedents’ four-year-old daughter, Clarissa. She testified that during the evening three men, one of whom was armed with a gun, entered the home where she lived with her parents, brother and sister. Clarissa testified that the man carrying a gun was wearing a cast. Other witnesses had testified that during the period in question defendant was wearing a cast on one leg. At the preliminary examination, however, Clarissa was twice walked through the courtroom and could not identify anyone present as being the person she had seen in her home the night of the killings. Defendant was seated in the courtroom.

The final witness called on October 25, 1977, was Kate Visser, a police detective. She testified that on March 21, 1975, she first interviewed Clarissa and that on March 25, 1975, she showed her ten photographs. Visser testified that Clarissa selected three, including that of defendant, as being those of the men who entered her home on the night of the murders.

Defendant contends that the district court erred reversibly at the preliminary examination in admitting Officer Visser’s hearsay testimony concerning Clarissa Palmer’s prior identification of defendant and in relying on that testimony in determining that there was probable cause to believe that defendant was the individual who committed the charged offenses.

At a preliminary examination the recognized rules of evidence apply. In People v Charles D Walker, 385 Mich 565; 189 NW2d 234 (1971), the Supreme Court held that at the preliminary examination there must be a showing from legally admissible evidence that a crime has been committed and that there is probable cause to believe that defendant committed it. See also People v Gwinn, 47 Mich App 134; 209 NW2d 297 (1973). Both parties agree that the testimony in question was hearsay: a third party may not testify about another person’s out-of-court identification. People v Poe, 388 Mich 611; 202 NW2d 320 (1972).

But the people contend that Officer Visser’s testimony as to Clarissa Palmer’s identification of defendant was admissible under the "tender years” exception to the hearsay rule. That exception allows the admission into evidence of hearsay statements made by a victim of tender years who subsequently testifies to the content of those declarations. The delay from the time of the incident to the time of the conversation must be adequately explained. People v Payne, 37 Mich App 442; 194 NW2d 906 (1971).

The tender years exception is, however, limited in some respects. The prosecutor is able to point us to no case where the offense involved is not sex-related. People v Gage, 62 Mich 271; 28 NW 835 (1886), the first case to apply the exception, involved assault with intent to commit rape. Subsequent cases have seemingly all dealt with sex offenses. See People v Hicks, 98 Mich 86; 56 NW 1102 (1893), People v Werner, 221 Mich 123; 190 NW 652 (1922), People v Bonneau, 323 Mich 237; 35 NW2d 161 (1948). In People v Payne, supra, this Court, speaking specifically of the tender years exception, limited its definition with the words "In sex offenses”. The crime at issue here is not a sex-related offense — it is murder.

Moreover, in all of the above mentioned cases the party whose statement has been allowed in despite its hearsay nature has been the victim of the alleged crime, the sex offense. Clarissa Palmer was not the victim of the crime in this case.

Nor is Clarissa’s prior identification admissible as part of the res gestae. The murders took place March 20. Clarissa found her parents on March 21 but she made no identification statement until March 25. We believe the statement too remote in time to be part of the res gestae.

In order for a statement to qualify as part of the res gestae,

"(1) there [must] be a startling occasion, startling enough to produce nervous excitement, and render the utterance spontaneous and unreflecting; (2) * * * the statement must have been made before there has been time to contrive and misrepresent and (3) the statement must relate to the circumstances of the occurrence preceding it. 3 Wigmore on Evidence § 1750 et seq.” Rogers v Saginaw-Bay City R Co, 187 Mich 490, 494; 153 NW 784 (1915).

The delay between the slayings and Clarissa’s statement removes her identification from that class of statements which may properly be called spontaneous and unreflecting within the special context of the res gestae. See also People v Woodward, 21 Mich App 549; 175 NW2d 842 (1970).

Since we find the hearsay statements inadmissible, we must reverse the circuit court order denying defendant’s motion to quash. The matter is remanded to circuit court where the circuit judge may either dismiss or remand for further examination. If the case is so remanded, the Michigan Rules of Evidence, effective March 1, 1978, will govern. Therefore we consider whether the proffered evidence is to be treated any differently under the new rules.

The Michigan Rules of Evidence contain no tender years exception. See MRE 1978, 802, 803, 804, wherein the hearsay rule and the exceptions thereto are dealt with. Attempts to establish an exception for the testimony of Officer Visser elsewhere in the rules fail. MRE 1978, 801(d)(1) provides:

"(d) Statements which are not hearsay. A statement is not hearsay if—
"(1) Prior statement of witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving him.” (Emphasis added.)

Clarissa Palmer’s testimony might be said, after cursory reading, to meet the standard of this rule. But the pertinent committee note declares:

"MRE 801(d)(1)(C) [now renumbered to be 801(d)(1)] is consistent with prior Michigan law in admitting testimony by a witness as to his own prior statement of identiñcation of a person made after perceiving him. People v Poe, 388 Mich 611; 202 NW2d 320 (1972), People v Londe, 230 Mich 484; 203 NW 93 (1925).” (Emphasis added.) Proposed Michigan Rules of Evidence (West 1977 ed), p 55.

People v Londe, cited by the committee, approved testimony by two witnesses as to prior identification of the defendant and the circumstances surrounding such identification at police headquarters. As was previously observed, People v Poe, also cited by the committee, held that while a party may testify as to his or her prior identification of a defendant, a third party may not testify about another person’s out-of-court identification.

Under the rule, therefore, as interpreted by the committee, and we believe correctly, while Clarissa Palmer could properly testify as to her own prior statement of identification, Officer Visser could not. In accord with the new Michigan Rules of Evidence, then, Visser’s testimony is not admissible.

The order denying defendant’s motion to quash is reversed. The information is quashed and the matter remanded to circuit court for appropriate further action.

        Woodward, at 560, fn 5 contains the following definition of res gestae:

        "McCormick, [Evidence] note 4, p 578, cites the following definition of res gestae from the case of Allen v Mack (1942), 345 Pa 407, 410 (28 A2d 783, 784):
      " 'A res gestae declaration may be defined as a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence which that person has just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.’ ”

        See also People v Sanford, 402 Mich 460; 265 NW2d 1 (1978), in which, in three separate opinions, members of the Supreme Court discuss prior identification and MRE 1978, 801(d)(1). As Justices Kavanagh and Levin stated:
      "MRE 801(d)(1) was not designed to permit testimony by persons other than the identifying witness.”
      Justices Williams, Moody and Coleman apparently would allow some third-party identification testimony, as permitted by Londe and Poe. This seems to be consistent with the drafters’ interpretation of MRE 801(d)(1) and with precedent. It suggests that the three justices do not find MRE 801(d)(1) to have opened up new doors for third-party identification testimony, as Justices Ryan and Fitzgerald find.


author:
Per Curiam.
      D. C. Riley, P. J.

text:
    PEOPLE v NEWSOME
    Docket No. 77-2484.
    Submitted March 20, 1978, at Detroit.
    Decided July 18, 1978.
    Leave to appeal applied for.
    Duval Newsome was convicted of first-degree felony murder and armed robbery and sentenced on each count in Recorder’s Court of Detroit, Joseph A. Gillis, J. As part of its instructions to the jury the court gave an instruction on premeditated murder. Defendant argues on appeal that to instruct on premeditated murder where he had not been charged with that offense denied him his constitutional right to be informed of the nature of the charges against him. Held:

    1. It was error to instruct on premeditated murder where a defendant was charged with only felony murder; the error, however, was harmless where no objection was raised, the jury specifically found the defendant guilty of the crime charged, which was felony murder, and there was no miscarriage of justice.
    2. A sentence for both felony murder and the underlying lesser included felony is improper.
    Conviction affirmed, sentence for armed robbery vacated.
    D. C. Riley, P. J., dissents on the ground that the erroneous instruction on premeditated murder is not harmless beyond a reasonable doubt where the jury foreman’s statement to the court regarding guilt was so ambiguous that it cannot be said with certainty that the jury did not convict the defendant of a crime different than that charged in the information.
    Opinion of the Court
    1. Homicide — Instructions to Jury — Premeditated Murder — Fei> ony Murder — Failure to Object — Harmless Error — Statutes.
    It is error to instruct a jury on premeditated murder where a defendant is charged with only felony murder; however, the error does not require reversal where no objection was raised, the jury specifically found the defendant guilty of the felony murder charged, and the instruction did not result in a miscarriage of justice (MCL 769.26; MSA 28.1096).

      References for Points in Headnotes
    [1, 3] 40 Am Jur 2d, Homicide § 528.
    [2] 40 Am Jur 2d, Homicide § 549 et seq.

      2. Homicide — Felony Murder — Underlying Felony — Sentence.
    A defendant may not be sentenced for both felony murder and the underlying lesser included felony.
    Dissent by D. C. Riley, P. J.
    3. Homicide — Instructions to Jury — Premeditated Murder — Felony Murder — Harmless Error.

      A court’s erroneous instruction on premeditated murder where defendant was charged with only felony murder is not harmless error beyond a reasonable doubt where it cannot be said with certainty that it did not result in the jury convicting the defendant of a crime different from that charged in the information.

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

      Carl Ziemba, for defendant on appeal.
    Before: D. C. Riley, P. J., and T. M. Burns and Cynar, JJ.
   Per Curiam.

Defendant was convicted by a jury in Detroit Recorder’s Court of the offenses of first-degree felony murder, MCL 750.316; MSA 28.548, and armed robbery, MCL 750.529; MSA 28.797. He was subsequently sentenced to concurrent life terms and now appeals by right.

Defendant was originally charged in the present case with Leonard and Henrietta Armstrong. Both of the Armstrongs pled guilty to second-degree murder, MCL 750.317; MSA 28.549, before defendant’s trial. Henrietta testified for the prosecution. A statement made by the defendant to police after his arrest was admitted at trial.

The evidence showed that the defendants were in need of money. An agreement was reached to rob Johnnie Williams, the deceased, a resident in the same apartment building as Henrietta Armstrong. Henrietta was acquainted with the deceased and, through her efforts, Leonard and the defendant were admitted to his apartment. The robbery was completed by tying up the deceased and gagging him. Williams was stabbed with a knife and bled to death.

Defendant admitted in his statement that he participated in the robbery and shared in the proceeds. He claimed, however, that he did not participate in the killing and that it was done only to prevent the deceased from identifying Henrietta Armstrong. Henrietta testified at trial that defendant had told her after the robbery that he had done the killing.

The trial court gave CJI 16:2:03 without objection. This instruction is appropriate where the defendant is charged with either felony murder or premeditated murder. Here defendant was charged with only felony murder. The appropriate instruction would have been CJI 16:2:02. Defendant claims that to instruct on premeditated murder where defendant had not been charged with that offense denied him his right to be informed of the nature of the charges against him. The people concede that it was error to instruct on premeditated murder, People v Buresh, 63 Mich App 629; 234 NW2d 736 (1975), lv den, 395 Mich 830 (1976), but argue the error does not require reversal.

We agree that the instruction did not result in a miscarriage of justice. MCL 769.26; MSA 28.1096. First, defense counsel raised no objection below when the matter could have quickly been corrected. Second, when asked for their verdict, the jury responded guilty as charged. The information had been read to the jury and charged defendant with felony murder. Third, the jury returned a verdict of guilty on the underlying felony, armed robbery. Even if the jury accepted defendant’s, statement that the murder was committed to prevent the crime from being detected, it would still be felony murder. People v Oliver, 63 Mich App 509, 523; 234 NW2d 679 (1975), lv den, 397 Mich 885 (1976). Our review leaves no doubt that the. jury found defendant guilty of felony murder.

Defendant claims it was improper to sentence him for both the felony murder and the underlying armed robbery. We agree. We therefore vacate the conviction and sentence for armed robbery, People v Anderson, 62 Mich App 475; 233 NW2d 620 (1975), People v Robert G Thompson, 81 Mich App 348; 265 NW2d 632 (1978). While it is not. improper to charge the defendant with both crimes, once the verdict is returned and it appears that the jury found the armed robbery to be a lesser included offense of the murder, no judgment should be entered on that count. It is the imposition of a dual punishment which causes constitutional error.

Defendant also claims that various portions of the prosecutor’s argument were prejudicial. We have examined the entire argument by both counsel in light of the claims made on appeal and conclude that no reversible error occurred.

The conviction and sentence for first-degree murder are affirmed. The conviction and sentence for armed robbery are vacated.

D. C. Riley, P. J.

(dissenting). I respectfully dissent.

When the jury returned to deliver its verdict, the following discussion took place:

"CLERK: 'How do you find the defendant as to Count I?’
"FOREMAN: 'As to Count I, we find the defendant guilty as charged.’
"THE COURT: 'Of [w]hat?’
"FOREMAN: 'First-degree murder.’ ”

The majority focuses on the language "guilty as charged”, and concludes that there is no doubt that the jury found defendant guilty of felony murder. I do not find the cited language so unambiguous as to render the trial judge’s clear instructional error harmless beyond a reasonable doubt.

There are three possible meanings of the foreman’s phrase "guilty as charged”. He could have meant (1) guilty of felony murder, as charged in the information (the majority’s conclusion); (2) guilty as per the trial court’s charge to the jury (either felony murder or premeditated murder); or (3) guilty of first-degree murder as opposed to guilty of the lesser included offense of second-degree murder (again either felony or premeditated murder). The confusion was not cleared up by the court’s further inquiry, since the foreman merely stated that they had found defendant guilty of first-degree murder.

Given these three possibilities, I cannot say with any degree of certainty that the court’s erroneous instruction on premeditated murder did not result in defendant being convicted of a crime different from that charged in the information. It is no more reasonable to conclude that the jury foreman used the term "charged” in a strict legal sense, to refer to the information, than to conclude that the term was a reference to the court’s instructions.

The fact that the jury also convicted defendant of armed robbery does not, in itself, prove that the murder conviction was for felony-murder. There was evidence presented at the trial that the killing took place after the completion of the robbery, which could support verdicts of both armed robbery and premeditated murder. See People v Oliver, 63 Mich App 509, 524-525; 234 NW2d 679 (1975).

I would reverse and remand.

       US Const, Am VI; Const 1963, art 1, § 20.


author: Per Curiam.

text:
    O’BRIEN v HAZELET & ERDAL
    Docket No. 77-2823.
    Submitted April 4, 1978, at Grand Rapids.
    Decided July 18, 1978.
    James and Peggy O’Brien brought an action against Hazelet & Erdal, consulting engineers, for damages for injuries which James O’Brien received when a truck he was driving overturned on a highway. Plaintiffs alleged negligent design of the highway, which had been constructed 14 years before the accident. Defendant’s motion for accelerated judgment, based on a statute which bars an action against licensed architects or professional engineers for injury arising from a defective and unsafe condition of an improvement to real property more than six years after occupancy, use or acceptance of the improvement, was denied by the Kent Circuit Court, Stuart HofRus, J. Defendant appeals by leave granted. Held:

    The statute abrogates a common-law right of action before it accrues, and in so doing does not violate due process by unreasonably restricting the right to sue. Denial of the defendant’s motion was improper.
    Reversed and remanded.
    Statutes — Limitation of Actions — Abrogation of Actions — Architects and Engineers — Constitutional Law — Due Process.
    The Legislature may abrogate a common-law right of action before it vests; therefore, a statute which bars an action for damages against a licensed architect or professional engineer for injuries arising from a defective and unsafe condition of an improvement to real property more than six years after the time of occupancy, use or acceptance of the improvement does not violate due process by unreasonably restricting the right to sue where the injury occurs after the six year period (MCL 600.5839[1]; MSA 27A.5839[1]).
    References for Points in Headnote
    5 Am Jur 2d, Architects §§ 23-25.
    51 Am Jur 2d, Limitation of Actions §§ 9-12.

      Cholette, Perkins & Buchanan (by Bruce M. Bieneman and Kenneth L. Block), for plaintiffs.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by William D. Booth and Christine D. Oldani), for defendant.
    Before: R. B. Burns, P. J., and J. H. Gillis and D. C. Riley, JJ.
   Per Curiam.

The present case involves the application of Michigan’s statute limiting actions against licensed architects and professional engineers arising out of work done on improvements to real property. MCL 600.5839(1); MSA 27A.5839(1).

In 1954, defendant, an éngineering firm, contracted with the Michigan State Highway Department to serve as consulting engineer for construction of US-131 in the City of Grand Rapids. Apparently, construction work was completed on the highway sometime in 1961.

On June 28, 1975, plaintiff James O’Brien was injured when a truck he was driving tipped over on an "s-curve” on US-131. Plaintiffs filed suit on December 1, 1976, alleging that defendant had negligently designed the "s-curve”, thereby proximately causing the accident.

Defendant brought a motion for accelerated judgment, GCR 1963, 116.1(5), claiming that the suit was barred since it was not brought within six years after defendant completed its work on the highway construction project. MCL 600.5839(1); MSA 27A.5839(1). The trial court denied the motion, ruling that the statute was unconstitutional because it barred the suit prior to the date of the injury. Defendant appeals the denial of the motion.

This Court has recently held that this statute does not violate due process by unreasonably restricting the right to sue. Muzar v Metro Town Houses, Inc, 82 Mich App 368; 266 NW2d 850 (1978), Bouser v Lincoln Park, 83 Mich App 167; 268 NW2d 332 (1978). The Legislature may abrogate a common-law right of action before it vests. Grubaugh v City of St Johns, 384 Mich 165; 180 NW2d 778 (1970), Snow v Freeman, 55 Mich App 84; 222 NW2d 43 (1974). The present statute is better termed a statute of abrogation rather than a statute of limitations. See Dyke v Richard, 390 Mich 739, 745-747; 213 NW2d 185 (1973).

The remaining issues raised were not presented to the trial court below and thus are beyond the scope of this Court’s review. Oakland County v Detroit, 81 Mich App 308; 265 NW2d 130 (1978), Three Lakes Ass’n v Whiting, 75 Mich App 564; 255 NW2d 686 (1977). However, we will note that even had we been required to reach the merits of these issues, our decision would remain unchanged.

Reversed and remanded for entry of an order granting accelerated judgment in favor of defendant. Costs to defendant.

       "No person may maintain any action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of such injury against any state licensed architect or professional engineer performing or furnishing the design or supervision of construction of such improvement more than 6 years after the time of occupancy of the completed improvement, use or acceptance of such improvement. This limitation shall not apply to actions against any person in actual possession and control as owner, tenant or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.” MCL 600.5839(1); MSA 27A.5839(1).

       Plaintiff had no standing to raise the equal protection issue in Muzar v Metro Town Houses, Inc, 82 Mich App 368; 266 NW2d 850 (1978). See Broadrick v Oklahoma, 413 US 601; 93 S Ct 2908; 37 L Ed 2d 830 (1973). The applicable statute of limitations is that in effect on the date that the cause of action accrues. Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972). We do not believe that the statute violates the title-body clause of the Constitution. Const 1963, art 4, § 24. See People v Milton, 393 Mich 234; 224 NW2d 266 (1974).


text:
    HAMPTON v MASTER PRODUCTS, INC
    Docket No. 77-3103.
    Submitted June 23, 1978, at Detroit.
    Decided July 18, 1978.
    Leave to appeal applied for.
    Dolly M. Hampton, a deaf mute, slipped on a snowbank formed on a sidewalk located in front of a building owned by Master Products, Inc., in the Village of Yale, and suffered an impacted fracture of her wrist. Subsequently Dolly M. Hampton commenced an action for damages for personal injuries against Master Products, Inc., and the Village of Yale. A verdict of no cause of action was returned as to defendant Master Products, Inc. As to the defendant Village of Yale, a judgment was entered awarding the plaintiff $55,000, St. Clair Circuit Court, Halford I. Streeter, J. Defendant Village of Yale appeals. Held:

    1. The accumulation of snow on the sidewalk was an unnatural accumulation formed by the municipality’s employees in cleaning adjacent streets. As such, the municipality could be liable for injuries caused by the accumulation.
    2. There was adequate evidence introduced to allow the jury to find that the municipality had reasonable notice of the accumulation to impose a duty on the municipality to clear the sidewálk of the unnatural accumulation of snow.
    3. Sufficient evidence was introduced to show that the sidewalk was a public way.
    4. The verdict of $55,000 was not excessive and was justified by the evidence, in part because the plaintiff communicates through sign language and is less able to do this because of the constant pain and stiffness in her arm and shoulder.
    Affirmed.
    References for Points in Headnotes
    [1, 2] 39 Am Jur 2d, Highways, Streets, and Bridges § 506 et seq.

    [1-4] Municipal liability for injuries from snow and ice on sidewalk. 39 ALR2d 782.
    [3] 39 Am Jur 2d, Highways, Streets, and Bridges §§ 513, 514.
    [4] 39 Am Jur 2d, Highways, Streets, and Bridges §§ 509, 512.
    [5] 39 Am Jur 2d, Highways, Streets, and Bridges § 512.
    [6] 58 Am Jur 2d, New Trial §§ 212, 213.

      1. Negligence — Highways—Streets—Sidewalks—Snow and Ice— Public Authorities.
    The mere presence of snow or ice on a highway, street, or sidewalk in wintertime, which causes travelers difficulty, does not constitute negligence on the part of public authorities.
    2. Negligence — Municipal Corporations — Accumulations of Ice and Snow — Natural Causes — Unnatural Causes.
    A municipality in Michigan is not negligent if it fails to protect pedestrians from dangers to life and health which are caused by the natural accumulations of ice and snow on sidewalks; however, when the accumulation of ice and snow is the result of unnatural causes, the municipality may be liable; in order to render a municipality liable, the interference with travel must be unusual or exceptional, that is, different in character from conditions ordinarily and generally brought about by weather in a given locality.
    8. Negligence — Slip and Fall — Municipal Corporations — Public Sidewalks — Accumulation of Ice and Snow — Unnatural Accumulation — Proximate Cause — Jury Questions.
    The question of whether an unnatural accumulation of ice and snow on a public sidewalk was the proximate cause of a plaintiffs injuries in a fall on the public sidewalk is properly left to the jury.
    4. Municipal Corporations — Public Sidewalks — Accumulation of Ice and Snow — Duty to Remove — Notice.
    The duty resting on municipalities to remove accumulations of ice and snow from their sidewalks is a qualified one, and becomes imperative only when artificial formations or obstacles have been created and notice of their existence has been received by the municipalities; this notice may be actual or constructive, but actual notice is no more effective than constiuctive notice.
    6. Notice — Adequacy of Notice — Facts and Circumstances.
    The adequacy of notice always depends on all the facts and circumstances of a given case; it is measured by whether the notice is reasonable under those facts and circumstances.
    8. Courts — Verdicts—New Trial — Excessive Verdict — Discretion.
    Denial of a defendant’s motion for a new trial based on an excessive verdict is not an abuse of discretion where the verdict is supported by the evidence and is not shocking to the judicial conscience.

      Cummings, Monaghan, Thomas & McColl (by John C. McColl and John B. McNamee), for plaintiff.

      Bush, Luce, Henderson, Black & Bankson, for defendant Village of Yale.
    Before: R. M. Maher, P. J., and J. H. Gillis and McGregor, JJ.

       Former Court of Appeals judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Per Curiam.

Defendant Village of Yale appeals a jury verdict awarding $55,000 to plaintiff Dolly Hampton. Plaintiff is a deaf mute who slipped on a snowbank formed on a sidewalk located in front of defendant Master Products’ building. The sidewalk in question is located in the Village of Yale. As to Master Products, Inc., a verdict of no cause of action was returned. Defendant Village of Yale appeals as of right.

In her complaint plaintiff alleged that "the Village of Yale was under a duty to keep the sidewalks in a condition safe for public travel. The Village failed to do so and allowed a public nuisance to remain and cause the sidewalk to become hazardous to public travel.”

Plaintiff’s exhibits clearly showed a snowbank as it covered the sidewalk. She testified that as she walked over the drift (she did not walk in the street because there were cars parked in that area) she sank into the snow, lost her balance and fell against the fence on the sidewalk. She was diagnosed as having an impacted fracture of her wrist.

The Village of Yale’s duty to maintain highways is governed by MCL 691.1402; MSA 3.996(102), which provides

"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency.”

MCL 691.1401(e); MSA 3.996(101)(e) defines highway to include sidewalks such as the one involved in this case.

The mere presence of snow or ice on a highway, street, or walk in wintertime, which causes travelers difficulty, does not constitute negligence on the part of the public authorities. A municipality in Michigan is not negligent if it omits to protect pedestrians from dangers to life and health which are caused by the accumulations of ice and snow on sidewalks from natural causes. Mayo v Village of Baraga, 178 Mich 171; 144 NW 517 (1913). See also Wesley v Detroit, 117 Mich 658; 76 NW 104 (1898), and Johnson v Pontiac, 276 Mich 103; 267 NW 795 (1936).

When, however, the accumulation of ice and snow is the result of unnatural causes, the municipality may be liable. In order to render a municipality liable, the interference with travel must be unusual or exceptional, that is, different in character from conditions ordinarily and generally brought about by winter weather in a given locality. 39 Am Jur 2d, Highways, Streets and Bridges, § 506, p 906.

In Pappas v Bay City, 17 Mich App 745; 170 NW2d 306 (1969), the plaintiff slipped on ice that had accumulated in a depression in a sidewalk. This Court referred to it as "an unnatural accumulation of ice”. 17 Mich A]?p at 753. Consequently, it was held to be a jury question as to whether the defendant city discharged its duty to keep the sidewalk in reasonable repair.

Earlier, in Johnson v Marquette, 154 Mich 50; 117 NW 658 (1908), the Supreme Court had called attention to the consequences of an unnatural accumulation.

"We do not think it open to serious question that there was evidence in this case that at this crossing there was an unnatural accumulation of snow and ice, occasioned by shoveling from the railroad track, so as to produce a hump on either side of the track of several inches in depth; thus increasing the height of the bank on either side. We think it was at least a question for the jury as to whether this left the highway in a condition reasonably safe and fit for travel. It is true that the natural accumulations of snow and ice and the natural results of traveling on the same do not of themselves make a case of faulty highway which justifies a jury in finding a municipality in fault. But that is not this case, as the evidence was ample to show that snow was thrown and piled on this highway in such a manner as to make an unnatural hump or ridge on either side of the track. 154 Mich at 53-54.

Whether this condition was the proximate cause of the injury was, the Court said, a question properly left to the jury.

Perl v Cohodas, Peterson, Paoli, Nast Co, 295 Mich 325; 294 NW 697 (1940), states simply the test for a municipality’s liability for injuries from snow or ice upon its sidewalks:

"In such cases the criterion is whether the danger was caused by natural or unnatural and artificial conditions.” 295 Mich at 335.

The Court’s opinion then notes that if the conditions were unnatural, the municipality can be held liable.

The accumulation of snow in the present case must be termed unnatural. Exhibits revealed that the snow bank was much higher than any snow surrounding it; indeed, most of the pavement nearby was bare. Testimony, never contradicted or denied by the Village of Yale, suggested that the village had plowed the street adjacent to the sidewalk. A jury could reasonably infer from this that the village was responsible for the unnatural accumulation of snow.

This unnatural accumulation created an obstruction on the sidewalk which should have been removed so that the village could fulfill its duty of keeping the highways "reasonably safe and convenient for public travel”. MCL 691.1402; MSA 3.996(102). The village was liable for injuries caused by its negligent failure to remove the obstruction after it had notice thereof. Kowalczyk v Bailey, 379 Mich 568; 153 NW2d 660 (1967).

"It is our conclusion, therefore, that that statute [similar in all relevant parts to the statute in the instant case] imposed upon cities liability for injuries caused by their negligent failure to remove obstructions in their streets after notice thereof.” 379 Mich at 572.

See also Reich v State Highway Dep’t, 386 Mich 617; 194 NW2d 700 (1972).

By and large, the duty resting on municipalities to remove accumulations of ice and snow from their sidewalks is a qualified one, and becomes imperative only when artificial formations or obstacles have been created and notice of their existence has been received by the municipalities. This notice may be actual or constructive, but actual notice is no more effective than constructive notice. 19 McQuillin, Municipal Corporations (3d ed), § 54.107, pp 389-391. MCL 691.1403; MSA 3.996(103), the governing statute, provides that

"No governmental agency is liable for injuries or damages caused by defective highways unless the governmental agency knew, or in the exercise of reasonable diligence should have known, of the existence of the defect and had a reasonable time to repair the defect before the injury took place. Knowledge of the defect and time to repair the same shall be conclusively presumed when the defect existed so as to be readily apparent to an ordinarily observant person for a period of 30 days or longer before the injury took place.”

In this case, the testimony revealed that the drift had been present two days and that the city had plowed the streets. The jury could reasonably have inferred that the defendant Village of Yale had caused the drift to be placed across the sidewalk through the use of its snowplows. A jury could deem the agents of Yale responsible for producing the drift where it was and as high as it was.

Defendant had reasonable notice of the snow bank. In two days the village should have been apprised of its existence — either actually or constructively. Not only did defendant’s agents plow the adjacent street, but the sidewalk in question is on a main thoroughfare which Yale’s agents could be presumed to use on a regular basis. Whether notice is ever adequate depends on all the facts and circumstances of a given case. It is measured by whether the notice is reasonable under those facts and circumstances. Peters v Dep’t of State Highways, 400 Mich 50; 252 NW2d 799 (1977). Here we cannot say that the two day existence of the snowdrift is insufficient to give notice as required by MCL 691.1403; MSA 3.996(103).

Defendant makes two other claims of error which we briefly discuss. The village argues that nothing in the record shows that the sidewalk was a public way. We do not agree. The sidewalk, plaintiff testified, was adjacent to Main Street in the Village of Yale. It is not alleged that Main Street was not a public highway; therefore, a sidewalk adjacent to it is a "sidewalk on any highway”. Plaintiffs exhibits clearly show that the snow bank was located on the sidewalk, not in a parking lot; and one of the employees of Master Products testified that the sidewalk in question was a city sidewalk.

Finally, appellant claims the verdict was excessive. We, however, find it was justified by the evidence. Plaintiff testified that she still constantly feels pain in her left arm and wrist, in addition to pain and stiffness in her shoulder. More importantly, as a deaf mute, she must communicate through sign language using her hands. But as a result of the accident she is less able to do this.

Under the circumstances the trial court did not abuse its discretion in denying a new trial based on the verdict, a verdict which resulted from a jury consideration of the evidence. Nor was the verdict shocking to the judicial conscience. Cryderman v Soo Line R Co, 78 Mich App 465; 260 NW2d 135 (1977). It should not be set aside.

Affirmed. Costs to appellee.

       In Rex v Village of Lochmoor, 268 Mich 159; 255 NW 748 (1934), our Supreme Court stated that while a municipality is not an insurer of its public sidewalks, it still has a duty to maintain them in a reasonably safe condition. Whether or not it has done so is generally a question for the jury. "In cases where reasonable and prudent men may fairly disagree upon how the duty shall be performed, the question is for the jury.” 268 Mich at 161. In the case at bar, there was clearly enough evidence to submit the dispute to the jury.


text:
    PEOPLE v MARCHESE
    Docket No. 78-807.
    Submitted June 13, 1978, at Detroit.
    Decided July 18, 1978.
    Leave to appeal applied for.
    Salvatore Márchese was convicted of assault with intent to commit murder in Wayne Circuit Court, Thomas J. Brennan, J. On appeal, defendant claims he was denied a fair trial because of improper and prejudicial questions by the prosecutor during his cross-examination of the defendant and because of improper and prejudicial statements to the jury in the prosecutor’s summation. Held:

    A prosecutor may not resort to innuendo and intimations on cross-examination and argument to the jury for which there is no factual support.
    Reversed and remanded.
    Criminal Law — Prosecutors—Prosecutor’s Arguments — Innuendo —Inferences—Intimations—Cross-Examination—Fair Trial.
    Innuendo has no place in a criminal trial; a prosecutor must be confined in his remarks to his proofs and reasonable inferences therefrom, his intimations must have factual support and where these prosecutorial limitations are violated, a defendant is denied a fair trial and his conviction should be reversed.
    Reference for Points in Headnote
    75 Am Jur 2d, Trial §§ 192 et seq., 260 et seq.

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

      Carl Ziemba, for defendant.
    Before: N. J. Kaufman, P. J., and Beasley and P. R. Mahinske, JJ.

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

   Per Curiam.

Defendant was convicted of assault with intent to commit murder, MCL 750.83; MSA 28.278. He appeals as of right, claiming numerous instances of prosecutorial misconduct.

The following colloquy occurred on cross-examination of defendant:

"Q Did you ever belong to an organization — I’m going to have to spell the name, maybe I — can’t pronounce it —R-a-s-t-a-f-a-r-i-a-n?
"A Rastafarian.
"Q Did you ever belong to such an organization?
"A It’s not an organization; it is just a religion.
"Q Do they have certain beliefs?
"A They believe in following Haile Selassie and Marcus Garvey, from Ethiopia.
"Q Were you pretty active in that religion?”

Defense counsel objected on the ground that religion should not be inquired into. The prosecutor stated he did not intend to get into religious beliefs and stated he would only ask one more question. The following then transpired:

"Q (by Mr. Easton, continuing): I don’t intend to get into the religious aspects of it, if you can answer yes or no, fine.
"A Uh-hmm.
"Q Is it not true Mr. Taveroni, that members of that belief advocate destruction of police officials?”

Defense counsel again objected but the trial court held that the question was not inappropriate.

In People v Osborne, 75 Mich App 600, 602; 256 NW2d 45 (1977), lv den, 402 Mich 810 (1977), in reversing the defendant’s conviction for improper cross-examination and argument, this Court noted:

"Defendant claims the prosecutor by his questions intimated that the defendant has committed other crimes. We agree. On cross-examination the prosecutor asked defendant if he had intimidated David Wright (a witness for the prosecution) since the trial began. There was no evidence introduced to substantiate such a question. While there was an objection and the objection was upheld, the question should not have been asked in the first place.
"The prosecutor also intimated by questions that the defendant had attempted to break into a warehouse. Again, there was no factual basis for such a question.”

This case is distinguishable only by virtue of the fact that here defense counsel’s objection was overruled.

Innuendo has no place in a criminal trial. The prosecutor must be confined to his proofs and reasonable inferences therefrom. Clearly, the remark was erroneous, and the error was compounded by the prosecutor’s closing argument wherein he stated:

"I suggest there’s a way they [drug addicts] can avoid that. They can go to a drug clinic and get off the habit. Made him [defendant] edgy to have a handcuff put on him. I submit he shouldn’t have taken the heroin. You did hear about an organization he belonged to. He denied that that organization has certain plans, but again, you just — testimony about other things, he said in the past, the false names, and reasons for being in this country and so on.”

The prosecutor’s argument is a classic example of why there must be a factual basis supporting intimations made by the prosecutor. All a prosecutor need do is catch a defendant in a few inconsistencies. Then, the prosecutor can elicit denials on any subject and then suggest the defendant was lying. Thus, the combination of the cross-examination and argument constitutes reversible error.

In closing argument, the prosecutor also strayed dangerously close to the type of "civic duty” argument condemned in People v Biondo, 76 Mich App 155; 256 NW2d 60 (1977), lv den, 402 Mich 835 (1977), and People v Gloria Williams, 65 Mich App 753; 238 NW2d 186 (1975). The prosecutor would be wise to avoid phrasing his remarks in that manner.

Reversed and remanded for a new trial.

Beasley, J., concurs in the result only.

       We note the prosecutor’s statement during closing argument that he is "victim-oriented”. We suggest that should the prosecutor shift his emphasis to being "justice-oriented”, he would find that his proper concern for victims of crime would also be satisfied. We are confident that victims of crime do not want to see an innocent person convicted due to improper prosecutorial argument, for the guilty party would remain at large. Furthermore, we are certain that victims of crime do not want to see a guilty person’s conviction overturned due to improper prosecutorial argument.

       "I’m sure it would not have done the wife of Officer Swamba, who since has died herself, it wouldn’t have done or have been any consolation to her to raise two children, knowing after all it was only a drug addict that killed her husband. Nobody has a right to kill police officers. These officers are protecting us, and I think you can judge here, the fine young police officer we’ve seen on the witness stand. It is nice to know that those men are out there working for us.”


text:
    PEOPLE v YARBROUGH (ON REMAND)
    Docket No. 78-1618.
    Submitted June 18, 1977, at Detroit.
    Decided July 18, 1978.
    Hendrick Yarbrough was convicted of four counts of first-degree murder. At trial defendant moved for a mistrial, then, prior to the court’s decision on the motion but after the court expressed its willingness to grant the motion, withdrew his motion in order to move for a directed verdict. When that was denied, defendant resubmitted his motion for mistrial but the Recorder’s Court of Detroit, Dalton A. Roberson, J., ruled that the motion had been withdrawn and could not be renewed. Defendant appealed his convictions to this Court and this Court reversed, 78 Mich App 81; 259 NW2d 248 (1977), holding that the trial court erred in refusing to entertain the motion it had expressed a willingness to grant. Defendant sought leave to appeal to the Supreme Court. The Supreme Court, in lieu of granting leave to appeal, vacated the decision of this Court and remanded for the Court of Appeals to consider whether it would have been error for the trial court to deny the motion for mistrial, 402 Mich 920 (1978). On remand, held:

    The trial court expressed its willingness to grant a mistrial, the grant of which lies in the sound discretion of the trial court, and the Court of Appeals finds no abuse of discretion.
    Reversed and remanded.
    F. J. Borchard, J., not participating.
    Trial — Motion for Mistrial — Discretion of Court.
    The grant or denial of a motion for mistrial rests within the sound discretion of the trial court.
    Reference for Points in Headnote
    76 Am Jur 2d, Trial §§ 1072 et seq., 1078 et seq.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Research, Training and Appeals, and Maude D. Cor

      rigan, Assistant Prosecuting Attorney, for the people.

      Carl Ziemba, for defendant.
    Before: R. M. Maher, P. J., and N. J. Kaufman and F. J. Borchard, JJ.

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

   Per Curiam.

This case was originally decided by this Court in People v Yarbrough, 78 Mich App 81; 259 NW2d 248 (1977). On April 28, 1978, the Supreme Court issued the following order:

"Leave to appeal is considered April 28, 1978, and, pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, the Court of Appeals decision is vacated and the case is remanded o the Court of Appeals for consideration of the question of whether, assuming pro arguendo that the trial court should have entertained defendant’s final request for mistrial, it would have been error for the trial court to refuse to grant said motion. Unless it would have, been error for the trial court to refuse to grant the motion, reversal on this basis should not be ordered. In addition, the matters raised by defendant in his application for cross-appeal are remanded to the Court of Appeals for such further consideration as the Court of Appeals shall deem necessary. This Court does not retain jurisdiction.” 402 Mich 920 (1978).

The following is in compliance with that order. We specifically readopt our previous opinion and the legal conclusions set forth therein. As to the issue posed by the Supreme Court, it is elementary that a motion for mistrial lies within the sound discretion of the trial court, e.g. People v Schram, 1 Mich App 279; 136 NW2d 44 (1965), aff'd, 378 Mich 145; 142 NW2d 662 (1966). As noted in our previous opinion, " * * * the trial court expressed its willingness to grant the motion for mistrial”. 78 Mich App at 87. We find no abuse of discretion. Defendant’s conviction is reversed and the case is remanded for a new trial.

In addition, we have reconsidered the remaining issues posed by defendant. As to the issue of witness Willie Wilson’s claim and later renunciation of his Fifth Amendment right not to incriminate himself, on retrial, the trial court is directed to People v Dortch, 84 Mich App 184; 269 NW2d 541 (1978). Defendant’s other claims have no merit.

Reversed and remanded for a new trial.

F. J. Borchard, J., not participating.