People v. Becker

• Decision Date: 04 September 1957
• Docket Number: A,No. 46,46
• Citation: 84 N.W.2d 833,349 Mich. 476
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee. v. Gerald BECKER, Defendant-Appellant. pril term.
• Court: Michigan Supreme Court

Page 833

84 N.W.2d 833

349 Mich. 476

The PEOPLE of the State of Michigan, Plaintiff-Appellee. v. Gerald BECKER, Defendant-Appellant.

No. 46, April term.

Supreme Court of Michigan.

Sept. 4, 1957.

U. S. A. Heggblom, Detroit, for appellant.

Thomas M. Kavanagh, Atty. Gen., Edmund E. Shephered, Sol. Gen., Lansing, Gerald K. O'Brien, Pros. Atty., Wayne County, Ralph Garber, Chief Asst. Pros. Atty., Samuel Brezner, Asst. Pros. Atty., and Angelo A. Pentolino, Asst. Pros. Atty., Detroit, for the People.

Before the Entire Bench.

SMITH, Justice.

What we confront in this case is the validity of a portion of an order of probation. The order arose out of a hit-and-run accident. The parties are in disagreement as to what is in the record and what is not, but we will assume that the People will not object if we turn to the information for information.

In it we find that defendant and appellant herein, Gerald Becker, was driving a car in a northerly direction on East Grand Boulevard, in the city of Detroit, about eight o'clock in the evening. The month was November. We learn from the transcript of proceedings that defendant was 17 years of age at the time and was driving his father's car (which was uninsured) without permission. As he was passing another car, which was in the lane next to the curb, he (at that time being between Frederick street and Theodore street) saw two people in his path. The probation report adds:

'He swung out to the left to avoid hitting them and put on his brakes but hit both complainants because 'I couldn't turn and stop fast enough.' He said he was going about 30 miles per hour.'

Rather than stopping his car, remaining at the scene, and complying with the statutory requirements, he drove away. The charge mad against him was that of unlawfully leaving the scene of a personal injury accident. Upon arraignment upon the information he pleaded guilty. The plea was accepted and, on May 27th, he was placed on probation for five years upon condition that he pay costs of $100, which he did, that he report regularly to the probation officer, and that he comply with certain other conditions, only one of which particularly concerns us, viz., '5. That probationer shall make restitution as follows: Make restitution of $1,244.48 in 1 year.'

We need not relate the steps following, culminating in defendant's being found guilty of violation of his probation. He was thereupon sentenced to serve six months to one year (with six months recommended) in the Detroit House of Correction. The transcript of proceedings on the date he was found guilty of violation of probation contains the following:

'Before I sentenced this boy, I talked to these people who were injured and they had recovered,--at least recovered pretty well. The boy was seventeen, and I considered that--actually I was reluctant to send him to jail. I determined from my investigation that the accident was his fault, the result of his negligence. The people who were injured spent $1244.00 in doctors' and hospital bills. They, as well as I, recognized that there was little likelihood of being able to collect a judgment against this boy if they got one to compensate them for their damages, so I put him in probation and ordered him to pay these people the $1244.00 within a year. I have been informed by the Probation Department he hasn't paid anything,--so that is why you are here.'

The case is before us on leave granted and there is only one question, the validity of paragraph 5 above quoted. Defendant has made no restitution and contends that this portion of the order is without statutory warrant. We turn, then, to the statute.

It is provided in C.L.1948 § 771.3 (Stat.Ann. § 28.1133), with respect to conditions of probation, in part as follows:

'The court may impose such other lawful conditions of probation, including restitution in whole or in part to the person or persons injured or defrauded, as the circumstances of the case may require or warrant, or as in its judgment many be meet and proper; * * *.'

The problem of the validity of requiring 'restitution' as a condition of probation in a criminal case of this type presents serious constitutional problems. (We say 'of this type' because in those cases where the criminal defendant has, for instance, been found guilty of embezzlement from his employer, and is required to restore the embezzled funds as a condition of probation, there is no serious question that the requirement imposed comes within the meaning of the term 'restitution' as employed in the statute. But such is not our problem.) The problem before us we examined in the case of People v. Good, 287 Mich. 110, 282 N.W. 920, 924. There the defendant was convicted of negligent homicide. Having been convicted, he was placed on probation upon certain conditions, one of which was that he 'make restitution in the sum of $385.' Upon appeal we upheld the validity of this condition, although the case was returned to the circuit court for reasons involving other parts of the order. Thus we have held that the statutory sanction of requiring 'restitution' as a condition of probation comprehended ordering the defendant in a criminal case to pay to certain third persons (not parties plaintiff or defendant in the criminal action) a sum of money fixed by the court itself. This, it will be noted, was without trial either as to extent of civil liability, or, indeed, as to the existence of civil liability itself. Yet we take it to be clear that an offense against the State resulting in criminal liability does not automatically involve a civil liability to a private citizen involved in some manner in the circumstances out of which the crime arose. As to the amount of damages, also, there is an undetermined question. This is not the case of, for instance, obtaining a sum certain under false pretenses, which sum the court orders restored to the complainant. This involves what are presumably unliquidated damages, arising out of what we normally call an automobile accident. The opinion, in fact, does not indicate how the sum was computed, or for what items of injury, if any, it was to be paid. Yet we squarely held that 'it was not a deprivation of due process of law to deny defendant a hearing on the question of the amount of 'damages' to be imposed * * *.'

We are now asked to extend the principle. We say to 'extend' the principle because, although the Good case imposed, as a condition of probation in the criminal case, liability for what we normally call civil damages, yet there was in the Good case the circumstance that injuries to the deceased apparently arose out of the very crime for which the defendant was convicted, namely, felonious homicide. But here the act of which defendant was convicted was not that of striking down but of leaving. The appellee, it is true, tells us it is all a part of the same general set of circumstances, the same series of related acts. But is that enough, that they are all part of the same general set of circumstances? We are here dealing with the liberty of a citizen. Criminal charges must be specific, and proved beyond a reasonable doubt. Even in a department store, something just as good won't do. Here the criminal has been convicted of one charge, but his freedom from incarceration (i. e., his condition of probation) is related to another act, precedent in time, with respect to which neither criminal charges nor civil complaint has been made. This is to import a dangerous concept into the affairs of the citizen. A host of questions arise. What is the ambit of defendant's liability? How far back, in point of time, will we draw the line of demarcation between the included events and those excluded, exacting compensation with respect to the former, ignoring or forgiving it as to the latter? The appellee does not tell us and we find no guidance in the criminal law. Possibly our re-examination of the theory upon which the condition of probation was imposed in the Good case will indicate the solution to our problem.

The majority in the Good case first denies 'that damages are 'assessed' by the court when restitution is made a condition of probation.' Why? Because, says the majority, 'No judgment is rendered for, nor could a writ of execution issue to enforce the collection of, the sum specified.' People v. Good, supra [287 Mich. 110, 282 N.W. 923]. It is true, of course, that no judgment is rendered for the sum specified. But that is exactly why the defendant is complaining. He wants a hearing as to his civil liability, with all his constitutional safeguards, and he demands that a judgment be rendered thereon as a prerequisite to a court's compelling his payment of moneys to another. As for writs of execution, we agree that, clearly, none could issue upon a non-existent judgment, but the relevance of the circumstance to the issue before us is not equally clear. The defendant either pays up or he serves time. This is a situation where a judgment creditor's inability to obtain a writ of execution in aid of a money judgment has no real significance. If defendant has the resources he will pay. If he has not, the writ of execution will not create them.

We say, further, that 'A defendant in such instance is merely given the alternative of abiding by the conditions imposed or else suffering the imposition and execution of a sentence which ordinarily follows a verdict of guilty.' People v. Good, supra. Such language begs the question. Certainly the defendant is 'merely' given an alternative, but the question is whether the alternative is lawful. Would it be lawful to require that the defendant submit to a sterilization operation? We will return to this matter of the alternative given.

We will start at the beginning. Restitution as a condition of probation is sometimes expressly authorized by statute (C.L.1948, § 771.3 [Stat.Ann. § 28.1133]; 18 U.S.C.A. § 3651), sometimes sanctioned by practice pursuant to a broad grant...