People v. Killarney, Docket No. 78-2326

• Decision Date: 06 February 1980
• Docket Number: Docket No. 78-2326
• Citation: 290 N.W.2d 156,95 Mich.App. 396
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Thomas J. KILLARNEY, Defendant-Appellee. 95 Mich.App. 396, 290 N.W.2d 156
• Court: Court of Appeal of Michigan — District of US

Page 156

290 N.W.2d 156

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Thomas J. KILLARNEY, Defendant-Appellee.

Docket No. 78-2326.

95 Mich.App. 396, 290 N.W.2d 156

Court of Appeals of Michigan.

Feb. 6, 1980.

Released for Publication April 4, 1980.

[95 MICHAPP 397] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward J. Grant, Pros. Atty., John L. Wildeboer, Asst. Pros., for plaintiff-appellant.

Charles J. Falahee, Jackson, for defendant-appellee.

Before MAHER, P. J., and MacKENZIE and PIERCEY, ^* JJ.

PER CURIAM.

The people appeal as of right from an order of the Jackson Circuit Court granting defendant's motion for directed verdict in a prosecution for felonious assault, contrary to M.C.L. § 750.82; M.S.A. § 28.277.

The court granted the motion on the ground that the people had failed to show that the defendant's actions had placed anyone in fear. While this element may suffice to establish that an assault took place, it is not a necessary element of assault. People v. Sanford, 402 Mich. 460, 265 N.W.2d 1 (1978). A criminal assault may occur where there is an intentional attempt or offer to harm another, together with the present ability to act. People v. Sanford, supra, at 477, 265 N.W.2d 1; People v. Carlson, 160 Mich. 426, 125 N.W. 361 (1910); see People v. Syakovich, 32 Mich.App. 356, 188 N.W.2d 642 (1971); People v. Williams, 57 Mich.App. [95 MICHAPP 398] 612, 226 N.W.2d 584 (1975). Moreover, felonious assault may be established by the showing of an intent by the defendant to put the victim in reasonable fear or apprehension of an immediate battery. See People v. Johnson, 407 Mich. 196, 284 N.W.2d 718 (1979).

The trial court erred when it granted defendant's motion for directed verdict. However, defendant may not be retried for this offense. The trial court's erroneous decision was a determination of guilt or innocence on the facts of the case. Therefore, retrial is barred by the constitutional prohibition against placing defendants in double jeopardy. People v. Smith (On Rehearing), 89 Mich.App. 478, 280 N.W.2d 862 (1979); Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962); United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); People v. Killingsworth, 80 Mich.App. 45, 263 N.W.2d 278 (1977).

Thus, we hold that the trial court erred, but that the double jeopardy provisions of the Michigan and Federal Constitutions prevent the retrial of defendant.

* JOHN H. PIERCEY, 14th Judicial Circuit, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. 6, Sec. 23, as amended 19...