People v. Rodgers
| Decision Date | 25 June 1969 |
| Docket Number | Docket No. 4534,No. 1,1 |
| Citation | 170 N.W.2d 493,18 Mich.App. 37 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald G. RODGERS, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Albert Summer, Weller, Summer & Feder, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Wayne County, Thomas P. Smith, Asst. Pros. Atty., Wayne County, Detroit, for plaintiff-appellee.
Before LESINSKI, C.J., and FITZGERALD, and V. J. BRENNAN, JJ.
Defendant was convicted of placing explosives with intent to destroy and causing damage to property. (C.L.1948, § 750.206 (Stat.Ann.1962 Rev. § 28.403)) and sentenced to a prison term of 4 1/2 to 25 years, the latter period being the maximum punishment under C.L.1948, § 750.206.
Defendant's alibi witness testified that defendant was at her home when the bombing in question occurred. On examination by the prosecution, the witness denied that she had told a police officer, on a previous occasion, that defendant had left her home just prior to the explosion with dynamite in his possession. The prosecution then called the police officer who testified as to the prior, inconsistent statements of the alibi witness. Although the testimony of the police officer was properly admitted, 1 the trial judge failed to instruct the jury that it could be considered only for purposes of impeaching the credibility of the alibi witness, and not as substantive proof of guilt. As this testimony tended to connect defendant directly with the Placing of the bomb, and the people's case was otherwise based solely on circumstantial evidence, the failure to give a cautionary instruction is reversible error even though one was not requested. People v. Durkee (1963), 369 Mich. 618, 120 N.W.2d 729; People v. Eagger (1966), 4 Mich.App. 449, 145 N.W.2d 221.
Defendant also contends he was sentenced under the wrong statute. Although this question may seem unnecessary to discuss because of our aforementioned ruling, we do so as the matter is remanded for trial and the trial court may be required again to face the issue.
There was no direct evidence that Rodgers was present at the scene of the bombing. Nevertheless if the jury found from the circumstantial evidence presented that he placed the bomb, the 25 year sentence of C.L.1948, § 750.206 could properly be imposed. However, if the jury found that Rodgers did not place the bomb, but merely aided and abetted, he could not be sentenced to the 25 year term under C.L.1948, § 750.206.
C.L.1948, § 750.208 (Stat.Ann.1962 Rev. § 28.405) makes unlawful the aiding or abetting of a person who places an explosive with intent to destroy the property of another. This felony is punishable by a maximum of 15 years in prison. The appellee contends application of C.L.1948, § 750.206 is nevertheless proper as it was sufficiently established that defendant aided and abetted the person who placed the bomb, and accessories are criminally liable as principals by force of C.L.1948, § 767.39 (Stat.Ann.1954 Rev. § 28.979).
It is a basic rule of statutory construction that a special statute, specific in its language and enacted subsequent to its more general counterpart, constitutes an exception to the general regulation should there be a variance. See Winter v. Royal Oak City Manager (1947), 317 Mich. 259, 265, 26 N.W.2d 893; Dewey v. Central Car Mfg. Co. (1880), 42 Mich. 399, 4 N.W. 179. C.L.1948, § 750.208 specifically covers aiding and abetting in the placing of explosives and was enacted after C.L.1948, § 767.39. 2 Therefore the distinction between accessory and principal is maintained as concerns the several crimes involving the placing of explosives. (C.L.1948, § 750.205 et seq.)
Appellee points out that C.L.1948, § 750.206 requires actual damage to property whereas C.L.1948, § 750.208 does not. From this reading, the conclude that the latter section does not proscribe aiding and abetting in the violation of C.L.1948, § 750.206, but instead makes aiding and abetting unlawful only where no damage occurs, a separate offense from that of C.L.1948, § 750.206. Since damage occurred here, C.L.1948, § 750.208 is not applicable. This position is untenable. Section 206 is only one part of a statutory scheme which also makes unlawful the placing of an explosive 'although no damage...
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Lucas v. Board of County Road Com'rs of Wayne County
...dictate that a special statute enacted subsequent to a general statute is an exception to the general regulation. People v. Rodgers, 18 Mich.App. 37, 40, 170 N.W.2d 493 (1969); Manville v. Bd. of Governors of Wayne State University, 85 Mich.App. 628, 636, 272 N.W.2d 162 (1978); In re Cole E......
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...People v. Durkee (1963), 369 Mich. 618, 120 N.W.2d 729; People v. Eagger (1966), 4 Mich.App. 449, 145 N.W.2d 221; People v. Rodgers (1969), 18 Mich.App. 37, 170 N.W.2d 493; People v. Anderson (1966), 2 Mich.App. 718, 141 N.W.2d 353. However, where it has, the prior, inconsistent statements ......
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...it was not requested nor objection made to its omission. People v. Durkee (1963), 369 Mich. 618, 120 N.W.2d 729; People v. Rodgers (1969), 18 Mich.App. 37, 170 N.W.2d 493. The evidence in the instant case is much stronger than was that in People v. Dozier 1 (1970), 22 Mich.App. 528, 532, 53......
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