People v. Johnson

• Decision Date: 29 August 1972
• Docket Number: No. 2,Docket No. 12309,2
• Citation: 42 Mich.App. 544,202 N.W.2d 340
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Thomas JOHNSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 340

202 N.W.2d 340

42 Mich.App. 544

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Thomas JOHNSON, Defendant-Appellant.

Docket No. 12309.

Court of Appeals of Michigan, Division No. 2.

Aug. 29, 1972.

Released for Publication Dec. 8, 1972.

Ralph B. Hoschner, Corunna, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Gerald M. Stevens, Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and DANHOF and VanVALKENBURG, ^* JJ.

Van VALKENBURG, Judge.

Defendant was found guilty on three counts. Originally the first one charged him with assault with the intent to commit murder, M.C.L.A. § 750.83; M.S.A. § 28,278, but the jury found him guilty of the lesser included offense of felonious assault, being M.C.L.A. § 750.82; M.S.A. § 28.277. The second count carried the charge of malicious destruction of police department property, M.C.L.A. § 750.377b; M.S.A. § 28.609(2), and the third one with the discharge of a firearm intentionally but without malice, M.C.L.A. § 750.234; M.S.A. § 28.431.

The defense at trial was one of intoxication. The trial court charged the jury that intoxication would negative the specific intent necessary for the crimes set forth in counts two and three and the intent necessary to convict for assault with intent to murder and assault with intent to commit great bodily harm less than murder; however, the trial court refused defendant's request to charge that intoxication was a defense to felonious assault. The court held and charged the jury that felonious assault was not a specific intent crime, and, therefore, intoxication was not a defense.

On appeal defendant asserts that the trial court erred in refusing to instruct the jury that felonious assault contrary to M.C.L.A. § 750.82, Supra, is a specific intent crime and thus subject to the defense of intoxication. In support of his position defendant cites People v. Crane, 27 Mich.App. 201, 183 N.W.2d 307 (1970). See, also, People v. Dozier, 39 Mich.App. 88, 197 N.W.2d 314 (1972). While Crane, supra, does hold that felonious assault is a specific intent crime, there is no citation of authority for that proposition, but rather the mere statement that:

'Plaintiff concedes that the trial court correctly rules that felonious assault is a specific intent crime.'

On the other hand the Supreme Court in People v. Burk, 238 Mich. 485, 489, 213 N.W. 717, 718 (1927), in construing the felonious assault statute, held:

'We think the instruction asked is objectionable in that it assumed that intent was a necessary element of the offense charged. The only elements necessary for the jury to find were that defendant made an assault with a dangerous weapon, and that he did not intend to commit murder or the offense of great bodily harm less than the crime of murder. If defendant assaulted Foster with a dangerous weapon, he would be guilty of the offense charged, regardless of his intent to injure him, if he did not intend to commit murder or great bodily harm less than the crime of murder.'

See, also, People v. Childs, 11 Mich.App. 408, 411, 161 N.W.2d 428 (1968); People

v. Hooper, 36 Mich.App. 123, 125, 193 N.W.2d 203 (1971).

Our reading of the felonious assault statute forces us to conclude that felonious assault is not a specific intent crime. M.C.L.A. § 750.82, Supra, provides:

'FELONIOUS ASSAULT--Any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a felony.'

By the clear language of the statute the crime is merely a simple assault committed with a dangerous weapon. ¹ While the statute specifically excludes certain types of specific intent, the only intent that would appear to be required is the intent necessary to constitute a simple assault.

As stated in People v. Comstock, 115 Mich. 305, 312, 73 N.W. 245, 248 (1897):

'Voluntary intoxication may be a defense to persons charged with some offenses, where it is of a degree which enables a jury to say that the accused was incapable of forming the specific and requisite intent. Thus an Assault and battery is not excused by voluntary drunkenness, but the more aggravated offenses depend upon the accompanying intent prescribed in each case, and anything that tends to show its absence is a defense.' (Emphasis supplied.)

Since assault and battery is not a specific intent crime that is excused by voluntary drunkenness, ² and felonious assault as defined by M.C.L.A. § 750.80, Supra, is but an assault committed with a dangerous weason, felonious assault is not a specific intent crime to which the defense of voluntary intoxication is available. ³ The trial court's charge in the instant case was thus proper. ⁴

Defendant further asserts that reversible error arose from the fact that the trial court refused to charge the jury as to assault and battery. Since the defendant was neither charged with a battery and here was no proof at trial that a battery took place, the trial court properly refused to so charge. See People v. Membres, 34 Mich.App. 224, 191 N.W.2d 66 (1971), lv. denied 386 Mich. 790 (1972); People v. Busby, 34 Mich.App. 235, 191 N.W.2d 70 (1971), lv. denied 386 Mich. 790 (1972); People v. Netzel, 295 Mich. 353, 294 N.W. 708 (1940). Defendant's remaining allegation of error is without merit.

Affirmed.

* WADE VanVALKENBURG, former Circuit Court Judge, sitting on the Court of Appeals by assignment, pursuant to Const.1963, art. 6, § 23 as amended in 1968.

1 The use of the term 'felonious assault' to describe the crime may well be much of the cause for the mistaken impression that it is a specific intent...