People v. Dombkowski
| Decision Date | 27 July 1971 |
| Docket Number | Docket No. 10058,No. 3,3 |
| Citation | 192 N.W.2d 286,35 Mich.App. 264 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Floyd DOMBKOWSKI, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Gordon J. Quist, Miller, Johnson, Snell & Cummiskey, Grand Rapids, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller Pros. Atty., Donald A. Johnston, III, Chief Appellate Atty., for plaintiff-appellee.
Before R. B. BURNS, P.J., and HOLBROOK and LEVIN, JJ.
Defendant was convicted of unlawfully and feloniously assaulting a child under the age of 16 years and attempting to take indecent and improper liberties with the person of said child without committing or intending to commit the crime of rape or the crime of sodomy or gross indecency upon such child. M.C.L.A. § 750.336 (Stat.Ann.1954 Rev. § 28.568). Defendant was sentenced to not less than 7 years nor more than 10 years in the state prison for southern Michigan at Jackson. Defendant appeals his conviction and sentence alleging five errors at trial: (1) that the constitutional and statutory guarantees against double jeopardy prohibited defendant's being tried and convicted on a charge of assault and attempt to take indecent liberties after defendant had pled guilty to being drunk and disorderly; (2) that the evidence was not sufficient to show an attempt to commit the crime charged; (3) that defendant was so intoxicated as to be unable to form an intent to commit the crime charged; (4) that defendant did not have adequate trial counsel; and (5) that defendant's sentence was excessive.
On February 26, 1970, at about 8:00 o'clock in the evening two young boys, eleven and nine years of age, entered the American Legion post in Grand Rapids for the purpose of selling candy for a school project. The boys approached the defendant who indicated that he would purchase some candy from them. The defendant directed the boys to open a box of the candy and eat some, which they did. Defendant then told the boys that he would pay them for the candy outside in the alley. The two boys left the building and defendant followed them. Once outside defendant grabbed both boys and instructed the older to take off his pants. When the boy refused, defendant attempted to pull down the boy's pants. Both boys escaped defendant and ran home. Soon after, defendant was identified by the boys and apprehended by police.
Defendant pled guilty to being drunk and disorderly. Defendant was later charged and convicted of the crime of assault and attempt to take indecent liberties with the person of a child under the age of 16. Defendant claims that the trial on the second charge constituted double jeopardy. This is not the law in Michigan.
Where separate and distinct offenses are committed but one of the offenses is not a necessary element in or a part of the other, a conviction of one does not operate as a bar to subsequent prosecution for the other. 1 Gillespie, Mich. Criminal Law & Procedure (2d Ed.), § 103, p. 117; People v. Townsend (1921), 214 Mich. 267, 183 N.W. 177. The misdemeanor of being drunk and disorderly is not a necessary element of the felony of assault and attempt to commit indecent liberties upon the person of a child under the age of 16. Neither does conviction of the misdemeanor constitute a bar to conviction of the felony because of double jeopardy. People v. Townsend, Supra.
The evidence in this case was clearly sufficient to convict defendant of the crime charged. Liberties that are to be penalized as indecent are those such 'as the common sense of society would regard as indecent and improper.' People v. Hicks (1893), 98 Mich. 86, 56 N.W. 1102; People v. Healy (1933), 265 Mich. 317, 251 N.W. 393; People v. Visel (1936), 275 Mich. 77, 265 N.W. 781; People v. Lakin (1938), 286 Mich. 282, 282 N.W. 149; People v. Brandt (1969), 18 Mich.App. 267, 171 N.W.2d 59. A defendant charged with having taken indecent liberties with a child under the age of 16 need not be shown to have taken liberties with the private parts of the child to warrant conviction. People v. Hicks, Supra. An assault is a necessary element in the crime of attempting to take indecent liberties with a child under the age of 16. People v. Carr (1966), 2 Mich.App. 222, 139 N.W.2d 329; People v. Visel, Supra.
Defendant forcefully grabbed the two boys and told the older to pull down his pants. When the boy refused, defendant attempted to unzip and remove the older boy's pants. The trial judge found that defendant's forcible attempts to remove the pants of the...
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Dombkowski v. Johnson
...§ 750.336. Petitioner unsuccessfully appealed this state felony conviction to the Michigan Court of Appeals, People v. Dombkowski, 35 Mich.App. 264, 192 N.W.2d 286 (1971), and later to the Michigan Supreme Court, 386 Mich. 757 (1971). Although the petitioner alleged five assignments of erro......