People v. Rorke

• Decision Date: 04 January 1978
• Docket Number: Docket No. 30100
• Citation: 264 N.W.2d 30,80 Mich.App. 476
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank J. RORKE, III, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 30

264 N.W.2d 30

80 Mich.App. 476

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank J. RORKE, III, Defendant-Appellant.

Docket No. 30100.

Court of Appeals of Michigan.

Jan. 4, 1978.

Released for Publication April 6, 1978.

Zaums & Nearpass by Leslie J. Nearpass, Temperance, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Michael W. LaBeau, Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P. J., and R. B. BURNS and BROWN, ^* JJ.

BROWN, Judge.

Defendant was convicted of absconding on or forfeiting bond, M.C.L.A. § 750.199a; M.S.A. § 28.396(1). Defendant claims an appeal as of right from the conviction and June 9, 1976, sentence of 21/2 to 4 years in prison. Prior to trial, defendant timely moved to quash the order binding defendant over for trial and this motion was denied. We reverse.

The statute under which the defendant was charged reads in pertinent part as follows:

"Any person who shall abscond on or forfeit a bond given in any criminal proceedings wherein a felony is charged shall be deemed guilty of a felony."

At the preliminary examination it was shown that defendant failed to appear in circuit court on March 4, 1975, for a trial on a charge of breaking and entering an occupied dwelling with intent to commit larceny therein. ¹ No proofs were submitted to the magistrate showing that defendant was given notice of the trial date or that he was otherwise apprised of the trial date and neglected to attend. Thus, the significant issue in this appeal is whether the above-quoted statute requires proof of scienter. We hold that it requires minimal proof of reckless neglect or disregard of a known obligation to appear and defend.

In People v. Litteral, 75 Mich.App. 38, 43-44, n 2, 254 N.W.2d 643 (1977), this Court considered the mental element required for conviction of absconding under the statute. Litteral indicated that proof of a general criminal intent would be sufficient but a holding in this regard was made unnecessary by the finding of specific intent. Likewise, we need not resolve the question of whether specific intent or general intent is required for conviction, since there was no showing before the examining magistrate of any mental state.

We recognize that in civil law a forfeiture may be effected without any intent to forfeit, unlike an abandonment. See In re Manse Spring and Its Tributaries In Nye County, 60 Nev. 280, 287-288, 108 P.2d 311, 315 (1940). We also recognize that as between a bonding company and the State of Michigan, a bond may be declared forfeited without inquiry into intent of the principal to forfeit since "a surety bond * * * is a contract between the government and the principal and surety". People v. Tom Johnson, 72 Mich.App. 702, 707, 250 N.W.2d 508, 511 (1976). However, a felony prosecution for forfeiture of a bond requires a minimal showing that a defendant recklessly neglected or disregarded a known obligation to appear and defend. Before such a finding can be made, it must be shown that a defendant was apprised of his or her court date.

We so construe the statute in order to maintain its validity. This we are bound to do if possible. In re Petition of State Highway Commission,383 Mich. 709, 714, 178 N.W.2d 923 (1970). If the statute does not require proof of notice from which recklessness or intentional conduct can be proven or inferred, the statute may be fatally defective under Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). We acknowledge that the Legislature has great latitude in specifying offenses and excluding elements of knowledge and diligence from the definition of an offense. However, there are situations in which notice must be required in order to sustain the validity of a criminal law. This category is delineated in 21 Am.Jur.2d, Criminal Law, § 6, p. 87, as follows:

"(C)onduct which is wholly passive, unaccompanied by any activity or any circumstances to alert the defendant to a duty to act, cannot constitutionally be punished where the defendant did not know of the duty and there is no proof or probability of such knowledge."

We regard the present case as falling within this limitation. Absent proof of notice to a defendant of his court date, he cannot incur criminal liability under M.C.L.A. § 750.199a; M.S.A. § 28.396(1). Staying away from a courthouse...