People v. Beaudin, Docket No. 52034

• Decision Date: 06 October 1981
• Docket Number: Docket No. 52034
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick J. BEAUDIN, Defendant-Appellant. 110 Mich.App. 147, 312 N.W.2d 187
• Court: Court of Appeal of Michigan — District of US

Page 187

312 N.W.2d 187

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick J. BEAUDIN, Defendant-Appellant.

Docket No. 52034.

110 Mich.App. 147, 312 N.W.2d 187

Court of Appeals of Michigan.

Oct. 6, 1981.

Released for Publication Nov. 18, 1981.

[110 MICHAPP 147] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., and Karl E. Kraus, Pros. Atty. (by Leonard J. Malinowski, Asst. Atty. Gen.), for the people.

John W. Smith, Sebewaing, for defendant-appellant.

[110 MICHAPP 148] Before T. M. BURNS, P. J., and HOLBROOK and GLASER, ^* JJ.

T. M. BURNS, Presiding Judge.

Defendant was convicted on February 1, 1979, by a jury of wilfully endangering lives by tampering with railroad property. M.C.L. § 466.12; M.S.A. § 22.271. On March 19, 1979, he was sentenced to 36 months probation. Subsequent to being put on probation defendant committed and was convicted of an act of second degree criminal sexual conduct. On September 17, 1979, his probation was revoked and defendant was sentenced to a term of 30 to 60 years imprisonment. He now appeals by leave granted pursuant to an order of this Court dated December 10, 1980.

Defendant's conviction arose out of an incident in which he and a friend removed four bolts that secured a railroad track north of Ubly, Michigan. Several days after this incident, a locomotive engineer felt his train lurch sideways as he was travelling over the tracks where the bolts had been removed. Returning along these same tracks on the following day, the engineer observed that the rails were not properly aligned and managed to stop the train without derailing. Although he successfully pulled the entire train over this spot at about two miles-per-hour, the engineer testified that, if he had passed over these tracks at the normal speed of 30 miles-per-hour, a serious derailment could have occurred.

Defendant's friend and accomplice, Dennis Perushki, testified at trial under a grant of immunity. He stated that in the late afternoon of May 6, 1978, he and defendant were walking along the railroad tracks when Perushki noticed a loose bolt on the track, stopped, removed it and gave it to [110 MICHAPP 149] defendant, who had asked him for it. Defendant loosened three other bolts from the tracks and removed them. Perushki and defendant subsequently threw all four bolts into a river. Perushki testified that neither he nor defendant had been drinking during their walk.

Defendant testified at trial that Perushki had given him $5 to buy two bottles of wine before they went on their May 6 walk. He stated that as they were strolling along he drank one-half of a bottle of wine and Perushki drank a full bottle of wine. Defendant further stated that he saw Perushki stop and remove four bolts from a railroad track and that Perushki gave one of them to defendant, who dropped it in the river.

At the preliminary examination, defendant moved to dismiss the charges on the ground that the statute under which he was prosecuted required a showing of specific intent. The prosecutor disagreed and the magistrate, without explicitly ruling on this question, bound defendant over for trial. Following close of the proofs at trial, defendant again moved to dismiss, arguing that it was impossible to determine from the statute whether specific or general intent was required for a conviction. Defendant objected to the trial judge's refusal to instruct the jury on specific intent. He now appeals and we affirm.

The crucial issue in this appeal is whether the tampering with railroad property statute requires specific intent. That statute, M.C.L. § 466.12; M.S.A. § 22.271, provides in pertinent part:

"If any person shall, by the placing of any impediment upon the track of any railroad, or by any other means whatsoever, throw from said track any engine or cars used thereon or attempt so to do, whether such engine or cars be thrown from said track or not, or [110 MICHAPP 150] shall by any other means whatsoever wilfully endanger, or attempt to endanger the lives of persons engaged in the work of said road, or persons travelling on the engine or cars of said road, he shall be subject to imprisonment in the state prison during his natural life, or number of years, in the discretion of the court. And it shall not be necessary for the people to allege or prove in any such case that the person thereby intended to injure or endanger the life of any particular person or persons."

That statute has been discussed in only two cases, People v. Dunkel, 39 Mich. 255 (1878), and People v. Petheram, 64 Mich. 252, 268-279, 31 N.W. 188 (1887) (Campbell, C. J., dissenting).

In Dunkel, the Supreme Court held that a felonious assault on a railroad brakeman by an irate passenger was merely a private wrong not contemplated by this statute. Rather, the statute is concerned with offenses that "threatened more general injury, and in which the evil contemplated is to be accomplished, not by singling out individuals for assaults that endangered no others, but by attacks upon or interference with the track, cars or the machinery of the railroad". 39 Mich. 255, 258. Although the Dunkel court did not explicitly state that general intent only was required for conviction under this statute, it speaks as if that fact was implicitly understood by the Court:

"There was, however, a class of offenses for which legislation was greatly needed; and these offenses are very well indicated by the general terms of the act. They were cases in which, for the purposes of plunder, or for the gratification of revenge upon railroad companies, or from other motives, equally criminal acts were done which threatened indiscriminate and perhaps wholesale injury to persons engaged in the management of railroad trains or persons being transported upon them. Placing obstructions upon the track with [110 MICHAPP 151] intent to throw off the train was perhaps the most common instance of the criminal conduct for which special legislation was needed, but this was only one of many ways in which great and indiscriminate injury might be inflicted and the statute was made general to embrace all similar cases and not with any purpose to make new provisions for criminal assaults which were already sufficiently provided for." Id.

In the subsequent case of People v. Petheram, the Supreme Court was concerned...