People v. Olary
| Decision Date | 06 October 1969 |
| Docket Number | No. 20,20 |
| Citation | 170 N.W.2d 842,382 Mich. 559 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George OLARY, Defendant-Appellant. |
| Court | Michigan Supreme Court |
Walter W. Turton, Pros. Atty., Port Huron, for plaintiff-appellee.
William R. Walsh, Jr., Port Huron, for defendant-appellant.
Before the Entire Bench.
Defendant was convicted by jury verdict in a justice of the peace court of the crime of cruelty to animals in violation of C.L.1948, § 752.21 (Stat.Ann. 1962 Rev. § 28.161). He was there sentenced to 2 years probation and to pay fine and costs of $79.75. He took an appeal to circuit court and, as provided by law, had a trial de novo there before a jury. A verdict of guilty was again returned and the circuit court imposed a sentence to serve 75 days in the county jail and pay costs of $75. On appeal therefrom to the Court of Appeals, 10 Mich.App. 640, 160 N.W.2d 348, it affirmed the circuit court judgment and sentence. From that, defendant's appeal is here on leave granted. 381 Mich. 777.
Two questions are raised on this appeal by defendant: (1) whether the proofs sustain a verdict of guilty of cruelty to animals under the statute and, particularly, whether proof of failure to provide medical treatment for cows, as needed, establishes such guilt; (2) whether it was lawful for the circuit court, upon conviction at the de novo proceedings in that court, to impose a greater sentence than that previously pronounced by the justice of the peace.
The statute making cruelty to animals a crime reads as follows:
'Whoever overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, cruelly beats, mutilates, or cruelly kills, or causes or procures to be so overdriven, overloaded, driven when overloaded, overworked, tortured, tormented, deprived of necessary sustenance, cruelly beaten, mutilated, or cruelly killed, any animal, and whoever having the charge or custody of any animal, either as owner or otherwise, inflicts unnecessary cruelty upon the same, or wilfully fails to provide the same with proper food, drink, shelter, or protection from the weather, shall, for every such offense, be punished by imprisonment in jail not exceeding 3 months or by fine not exceeding 100 dollars, or by both such fine and imprisonment * * *'
This is a misdemeanor.
The warrant charged defendant as follows:
Witnesses for the people at the circuit trial were an inspector for the Humane Society, a deputy sheriff, and a veterinarian. They saw a lame, injured, disabled and emaciated cow on defendant's farm that appeared to have been beaten and had a puncture wound of the stifle joint and other wounds that looked like they had been caused by forceful pressure on the cow's side and back with a pitchfork. An abscess had formed at one puncture wound which the veterinarian estimated had been developing for a period of from 30 to 45 days. Witnesses also saw, lying in the pasture there, the emaciated bodies of 2 dead cows, partially decayed, which had been beaten and abused, covered with abrasions and dead for some length of time. They talked with defendant at the time of their visit at his farm and he told them that the cows had been well just a short time before. The witnesses said that the evidences were such that this could not have been true. He also told them, when asked why the cattle were in the shape they were in, that the cows had been fighting and that two had died but that he did not know the cause of death. Defendant testified at trial, however, that enemies of his had beaten and injured the cows. He said that he had not called a veterinarian nor treated or caused the injured cows to be treated nor placed in the barn. He just left them in the pasture. It did appear that there was ample pasturage and water for these and defendant's other cattle.
Defendant, on this appeal, argues that there was no evidence that defendant had caused the injuries to the cows, that the Court of Appeals has upheld the conviction on the theory that, regardless of who inflicted the injuries, defendant was guilty of cruelty to animals by his inattention to the condition of the animals and failure to provide them with medical treatment, but that the statute does not, in its definition of cruelty, include failure to give medical attention.
Defendant also says that to hold defendant's inattention to constitute a violation of the statute would amount to permitting a criminal conviction for action or inaction which an advance reading of the statute would not have informed defendant was a criminal offense.
We think, however, that the record, as briefly sketched above, is ample to support a finding of cruelty consisting of conduct which defendant, a farmer, could well have realized was cruel and which the jurors readily recognized as such. We think the conviction lawful and proper.
Defendant had a right to take an appeal from justice to circuit court. Such appeal calls for trial de novo in the circuit court. This the defendant had before a second jury. That appeal amounted to a vacating and superseding of the judgment appealed from and placed the case within the circuit court jurisdiction to be proceeded in as if it were an original proceeding in that court. People v. Underwood, 209 Mich. 348, 176 N.W. 568. As said in People v. Powers, 272 Mich. 303, 261 N.W. 543, about an appeal from justice to circuit court in a criminal case:
'The defendant, however, had a right to appeal * * * and, when he did so, he conferred jurisdiction upon the circuit court to try the case anew and render judgment thereon as provided for in the statute.'
The sentence here imposed in circuit court was within the limits provided in the governing statute above quoted. The fact of a lesser previous sentence by the justice of the peace, which had been vacated by the appeal to the circuit court, in no way limited the circuit court powers to fix sentence at any amount permitted by that statute.
In this connection we are aware of the decisions and opinions handed down by the supreme court of the United States on June 23, 1969, in the combined cases of State of North Carolina et al. v. Pearce and Simpson v. Rice, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. These are State cases in which convictions in trial courts were later set aside by State appellate courts because they were held to have been the product, in part, of procedures which represented denial of Federal constitutional rights. Accordingly, the cases were remanded to the trial courts from which they had come, for retrial, and, upon second convictions, the original sentencing trial courts imposed harsher sentences than the first. While it appears that...
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