People v. Johnson

Decision Date29 October 1979
Docket NumberDocket Nos. 58560,Nos. 2,60557,3,s. 2
Citation284 N.W.2d 718,407 Mich. 196
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joeseype JOHNSON, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. David RING, Defendant-Appellee. Calendar407 Mich. 196, 284 N.W.2d 718
CourtMichigan Supreme Court

Kathleen M. Cummins, Detroit, for defendant-appellant.

David H. Sawyer, Kent County Pros. Atty., Donald A. Johnston, Chief Appellate Atty., Asst. Pros. Atty., Grand Rapids, for plaintiff-appellant.

Varnum, Riddering, Wierengo & Christenson by Dennis C. Kolenda, Grand Rapids, for defendant-appellee.

MEMORANDUM OPINION

These consolidated cases, arising out of prosecutions for felonious assault, concern jury instructions on the mental element of the common law offense of assault and the statutory offense of felonious assault.

The people's proofs at trial in Johnson and at the preliminary examination in Ring tended to show that in each case the defendant pointed a [407 MICH 210] gun at the complainant but no shot was fired. The defendants claim that they had no intention to injure and that the jury must be instructed that it may not convict unless it finds such intent. The instruction was refused in Johnson ; before trial in Ring the judge agreed to so instruct.

A majority of the Justices are of the opinion that

1) a simple criminal assault "is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery", People v. Sanford, 402 Mich. 460, 479, 265 N.W.2d 1, 7 (1978),

2) the jury should be instructed that there must be either an intent to injure or an intent to put the victim in reasonable

fear or apprehension of an immediate battery

3) the instruction in Johnson was deficient in two respects: it failed adequately to inform the jury of the intent requirement and it neglected to present the alternative "reasonable apprehension of receiving an immediate battery" form of felonious assault; the jurors in Ring should be instructed that defendant can be convicted if he intended to injure the victim or put him in reasonable apprehension of receiving an immediate battery.

We reverse Johnson and remand for a new trial and affirm the trial court's decision in Ring as modified and remand for trial.

Johnson did not raise an intoxication defense and the question whether assault or felonious assault are specific intent crimes for the purpose of the voluntary intoxication defense is not raised by the facts and has not been briefed or argued and is not before us; we intimate no opinion on that question.

[407 MICH 211] This memorandum opinion is signed by seven Justices. There are separate concurring and dissenting opinions. However, at least four Justices concur in every holding, statement and disposition of this memorandum opinion.

COLEMAN, C. J., and MOODY, LEVIN, KAVANAGH, WILLIAMS, FITZGERALD and RYAN, JJ., concur.

WILLIAMS, Justice (concurring in part and dissenting in part).

Leave to appeal was granted in these cases to consider a single question: "Whether felonious assault includes a specific intent as an element." M.C.L. § 750.82; M.S.A. § 28.277. 402 Mich. 855 (1978).

We granted leave because the precedents in this Court do not give a clear answer to the question and, until recently, the same situation prevailed in the Court of Appeals.

Our answer is that Specific intent is not an element in M.C.L. § 750.82; M.S.A. § 28.277:

"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."

We hold specific intent is not an element for these reasons:

(1) There is no specific intent written into the section while two forms of specific intent are particularly excluded from the section.

(2) M.C.L. § 750.82; M.S.A. § 28.277 is one of a number of assault sections in Chapter XI of the penal code. M.C.L. § 750.82; M.S.A. § 28.277 does not particularly [407 MICH 212] define a specific intent, whereas most of the others do.

(3) The structure and history of M.C.L. § 750.82; M.S.A. § 28.277 demonstrate that this section entitled felonious assault should more properly be called assault with a dangerous weapon. It is just that, a simple assault aggravated by the use of a dangerous weapon. The only intent necessary is the general intent necessary for an assault.

(4) The controlling case law, People v. Burk, 238 Mich. 485, 213 N.W. 717 (1927); People v. Sanford, 402 Mich. 460, 265 N.W.2d 1 (1978); People v. Johnson, 42 Mich.App. 544, 202 N.W.2d 340 (1972), holds that specific intent is not an element of felonious assault.

In People v. Johnson the trial court refused to give a separate instruction on criminal intent for felonious assault, but did instruct that the prosecution must prove an intentional assault. The Court of Appeals affirmed. We affirm the Court of Appeals in People v. Johnson.

In People v. Ring the trial court agreed to instruct the jury that the "intent to do bodily injury" was a necessary element of felonious assault. The Court of Appeals denied leave to appeal. We reverse the decision of the trial court to give the "intent

to do bodily injury" instruction and remand for instructions consistent with this opinion
I. Facts
A. People v. Johnson.

On June 1, 1974, at about 3:00 a. m. complainant, Ramone Jefferson, delivered a pizza to a motel room in Highland Park. He received a ten dollar bill in payment from his customers and returned to his automobile for change. When complainant [407 MICH 213] returned he was met outside the motel room by defendant Joeseype Johnson, who pointed a pistol at him and ordered him not to move. The customers slammed the door. While pointing the gun at Jefferson, Johnson attempted to force the door open. This went on for about ten minutes. Defendant then told Jefferson to "stay right there." Complainant remained in front of the motel room while Johnson walked out to a nearby terrace. When Johnson returned he again attempted to gain entrance to the motel room. When the customers refused to open the door, defendant told complainant that he could go.

Complainant went immediately to the manager's office and reported the incident. After leaving the manager's office the complainant saw Johnson walking toward his (complainant's) car. Complainant then returned to the manager's office. After a few minutes Johnson entered the manager's office, pulled up his shirt, indicating that he did not have a pistol and said, "See, I'm legal now." Jefferson left, drove to a police station and reported the incident. He returned to the manager's office with a police officer. Johnson was still standing in the manager's office. The complainant identified Johnson and Johnson was promptly arrested.

Defendant was charged with felonious assault, a violation of M.C.L. § 750.82; M.S.A. § 28.277. At trial, defense counsel requested "a separate instruction on criminal intent." (60a) The trial judge stated that People v. Clark, 48 Mich.App. 645, 210 N.W.2d 906 (1973), "indicated that specific intent is not an element of crime of felonious assault. * * * '(T)he only elements necessary to prove and sustain a conviction of felonious assault are assault and that a dangerous weapon was used in making the assault.' " (60a) [407 MICH 214] The judge gave the following instruction on felonious assault:

"In this case, the Defendant is charged with an offense which is commonly known as felonious assault; the statute from which the information is drawn, so far as the same (is) material provides as follows: 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 commit great bodily harm less than murder shall be deemed guilty of a felony. An assault is an attempt or offer with force and violence to harm another.

"If you are satisfied from the testimony that Mr. Johnson committed an intentional assault with a revolver which is a dangerous weapon likely to produce great bodily injury or is one more accurately described in the manner in which it is attempted to be used to commit great bodily harm." (65a)

The Court of Appeals affirmed defendant's conviction on March 10, 1976 in an unpublished per curiam opinion (Docket No. 22311). We granted leave to appeal January 20, 1978, 402 Mich. 855 (1978), "limited to the following issue: whether felonious assault includes a specific intent as an element."

B. People v. Ring.

On the morning of March 7, 1977, a roofing company's work crew was temporarily blocking traffic while backing a truck into a driveway. One of the company's employees, Tom Heney, was directing traffic around the truck. Defendant David Ring approached the stopped traffic.

The testimony presented at the preliminary examination offers two interpretations of the events that followed. Defendant testified that he stopped and was directed around the truck by Heney. [407 MICH 215] While passing

the truck, defendant heard a loud thud coming from the side of his automobile. He stopped and got out of his car. The person directing traffic was very angry with defendant and made obscene gestures and comments. Defendant got back in his car and left

Members of the working crew presented a different version of the incident. They testified that defendant ignored the signal to stop, wove in and out of traffic and forced his way through the bottleneck, nearly striking Heney. The truck was subsequently parked off the street. About twenty minutes later the company personnel noticed defendant's automobile...

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