People v. Rohr, Docket No. 12770

• Decision Date: 26 March 1973
• Docket Number: No. 3,Docket No. 12770,3
• Citation: 45 Mich.App. 535,206 N.W.2d 788
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wendell L. ROHR, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 788

206 N.W.2d 788

45 Mich.App. 535

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wendell L. ROHR, Defendant-Appellant.

Docket No. 12770.

Court of Appeals of Michigan, Division No. 3.

March 26, 1973.

Released for Publication May 11, 1973.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David A. Dimmers, Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and FITZGERALD and VanVALKENBURG, ^* JJ.

LESINSKI, Chief Judge.

In a nonjury trial, defendant was convicted of felonious assault. M.C.L.A. § 750.82; M.S.A. § 28.277.

The charge arose from a dispute between defendant and complainant over the right to cut hay in a certain hayfield. Complainant, Wayne Ritchie, and Harold Ritchie, all testified that defendant drove into the field, alighted from his car, pointed or aimed a gun at the complainant, and ordered him off the field. Defendant and William Devine testified that there were no threats and that defendant pointed the gun at a fox. Upon conviction, defendant appeals as of right.

Defendant alleges on appeal that the trial court erred in finding him guilty of felonious assault without making a specific finding that he entertained a specific intent to commit such an assault; and that the trial court erred by permitting the prosecutor, over objection by defense counsel, to reiterate portions of its case in chief during rebuttal.

Defendant erroneously contends that specific intent is an element of the crime of felonious assault. Reliance on People v. Dozier, 39 Mich.App. 88, 197 N.W.2d 314 (1972), and People v. Crane, 27 Mich.App. 201, 183 N.W.2d 307 (1970), is improper as these cases are in error on this point. This writer was in error when he signed the above per curiam opinions. While the result in those cases was correct because of the issue presented in them, it was error to elevate the intent required to a specific intent. The correct rule is stated in People v. Burk, 238 Mich. 485, 489, 213 N.W. 717, 718 (1927). '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. Richard Johnson, 42 Mich.App. 544, 202 N.W.2d 340 (1972); 6 Am.Jur.2d, Assault and Battery, § 53, p. 51; 2 Gillespie, Michigan Criminal Law & Procedure (2d ed.), § 1044, p. 1436. Additionally, we would reject defendant's allegation that the trial court committed reversible error where it failed to make a specific finding of fact that defendant had entertained the intent required. In People v. Thomas, 387 Mich. 368, 378, 197 N.W.2d 51 (1972), the Court held that no specific findings of fact are required in a judge-tried crimianl case.

Trial testimony obviously believed by the judge and reasonable inferences therefrom, as evidenced by the record and the guilty verdict, support a finding of guilty of felonious assault. From the evidence the trial judge could properly find that the defendant threatened and pointed a gun at the...