People v. Smith, Docket No. 8428

• Citation: 27 Mich.App. 73,183 N.W.2d 374
• Decision Date: 01 October 1970
• Docket Number: No. 3,Docket No. 8428,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred SMITH, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 374

183 N.W.2d 374

27 Mich.App. 73

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred SMITH, Defendant-Appellant.

Docket No. 8428.

Court of Appeals of Michigan, Division No. 3.

Oct. 1, 1970.

Released for Publication Feb. 12, 1971.

S. Jack Keller, St. Joseph, for defendant-appellant.

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

Before T. M. BURNS, P.J., and FITZGERALD and BURNS, ^* JJ.

T. M. BURNS, Presiding Judge.

Defendant, Fred Smith, was convicted upon his plea of guilty of assault with intent to do great bodily harm less than the crime of murder, M.C.L.A. § 750.84 (Stat.Ann.1962 Rev. § 28.279), and sentenced to imprisonment for 1 1/2 to 10 years.

From the record below it is difficult to understand the events that transpired before the assault with which defendant is charged. Apparently, however, the defendant and his wife had had an argument. She called the police who apparently found it necessary to protect defendant's wife from him. In response to the police protection of his wife, defendant took his three year old stepson to a bridge and informed the police that if they didn't bring his wife and baby to him, he would drop his stepson, Lawrence Dunn, off a bridge into the river.

While defendant had the child out on the bridge over the St. Joseph river, he held the child on his arm, with his arm resting upon the rail of the bridge, and reiterated his intention to drop the child into the river if his wife and baby were not brought to him.

The police brought defendant's wife and baby to him. When he then attempted to leave the bridge, the police seized him, and rescued the child.

At the arraignment the trial judge questioned defendant concerning what transpired on the bridge as follows:

'THE COURT: Do I understand then that you had this child on the bridge?

'DEFENDANT: Yes.

'THE COURT: Now, how old is this Lawrence Dunn?

'DEFENDANT: Three.

'THE COURT: Three years old. Now, how did you hold this child any way, did you hold him over the water or the rail, or what?

'DEFENDANT: I was leaning up against the rail and I had him sitting on my arm.

'THE COURT: Leaning up against the rail by the river?

'DEFENDANT: Yes, I had him sitting on my arm.

'THE COURT: About four feet high. And was the child above this rail?

'DEFENDANT: He was sitting on the rail. I had my arm laying up on the rail and he was sitting on my arm.

'THE COURT: In other words, you had the child actually up on this rail?

'DEFENDANT: And laying on my arm.

'THE COURT: Now, how long did you have the child sitting up there?

'DEFENDANT: About 10 minutes.

'THE COURT: And did I understand that--I don't know whether this is what Mr. Keller (defendant's counsel) had mentioned or whether you mentioned, that you told the police that you'd throw the child in the river.

'DEFENDANT: I told him I'd drop him in if they didn't bring her and the baby on.'

(Arraignment Transcript, pp. 13--16)

The defendant appeared for sentencing and when asked by the court stated that he had nothing to say.

A motion was made, after sentencing, to vacate defendant's plea, which motion was denied. From that denial, defendant appeals.

Did the court below commit reversible error in accepting defendant's guilty plea because the judge did not elicit from defendant sufficient facts with reference to 'intent' to support a conviction for the crime of assault with intent to do great bodily harm less than the crime of murder?

Defendant alleges that he qualified his plea of guilty insofar as having the necessary intent to commit the crime charged and that therefore his plea should not have been accepted by the court.

Plaintiff states that defendant waived the reading of the information, was represented and advised by counsel who explained the instant charge, and that, therefore, he was informed of the crime charged and its elements. In addition, the court further explained in detail the elements of the crime charged to the defendant during the arraignment.

Furthermore, it is clear from defendant's own words that defendant threatened to throw the child into the river, had the present means and ability to carry out this threat,...