People v. Thomas

• Decision Date: 01 December 1971
• Docket Number: No. 6,6
• Citation: 197 N.W.2d 51,387 Mich. 368
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James L. THOMAS, Defendant-Appellant, and Ben Palmore, Defendant. ,
• Court: Michigan Supreme Court

Page 51

197 N.W.2d 51

387 Mich. 368

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James L. THOMAS, Defendant-Appellant and Ben Palmore, Defendant.

No. 6, December Term, 1971.

Supreme Court of Michigan.

May 4, 1972.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Luvenia D. Dockett, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Robert L. Friedman, Southfield, for defendant-appellant.

Before the Entire Bench.

ADAMS, Justice.

I

On September 28, 1968, Brenda Dimbo, age 18, was picked up by defendants Thomas and Palmore as she was walking home late at night. She was crying, having had a fight with her boy friend. She was driven to Thomas' apartment where she had intercourse with the two defendants.

They testified that Brenda voluntarily entered the car and the apartment and voluntarily engaged in intercourse. She testified that she was forced into the car and the apartment and hit, choked and threatened into submission.

Thomas and Palmore were charged with unlawful carnal knowledge of a female over the age of consent. (M.C.L.A. § 750.520; M.S.A. § 28.788). A jury trial was waived. Trial was had before Hon. John R. Murphy of the Recorder's Court. At the conclusion of the trial, the court said: 'I am going to find both defendants guilty of carnal knowledge of a female over the age of 16, based on all the facts.'

Thomas filed a delayed application for leave to appeal to the Court of Appeals, asserting: 1) inadequate findings of fact, as required by GCR 1963, 517.1; and 2) insufficiency of evidence to find a rape by force. The Court of Appeals, one judge dissenting, denied Thomas' application.

Thomas filed an application for leave to appeal with this Court. Leave to appeal was granted. The Court of Appeals was summarily affirmed 'for the reason that GCR 1963, 517.1 does not apply to criminal cases.' (384 Mich. 804).

Defendant applied for a rehearing 'limited solely to the issue of whether GCR 1963, 517.1 applies to criminal cases.' We vacated our previous order and granted leave to appeal to consider the question as to whether GCR 1963, 517.1 applies to criminal cases.

II

On this appeal, defendant has raised a second issue which we shall dispose of first. Defendant challenges the sufficiency of the evidence to support the judgment beyond a reasonable doubt. Defendants admit that they had intercourse with the prosecutrix. The only contested element is whether such intercourse was 'by force and against her will.' The testimony of the prosecutrix, if believed, provided sufficient evidence to conclude that the intercourse was against her will and that she resisted to the utmost of her ability under the circumstances. People v. Geddes, 301 Mich. 258, 261, 3 N.W.2d 266 (1942).

The trial judge obviously believed her version to be true beyond a reasonable doubt. As we have frequently held: 'The trial judge saw and heard the witnesses and he was in a far better position than is this Court to determine their credibility.' People v. Szymanski, 321 Mich. 248, 254, 32 N.W.2d 451, 454 (1948). See, also, Prople v. Eger, 299 Mich. 49, 55, 299 N.W. 803 (1941); People v. Chesbro, 300 Mich. 720, 722--723, 2 N.W.2d 895 (1942); People v. Bailey, 341 Mich. 592, 597, 67 N.W.2d 785 (1954).

III

Defendant's contention that GCR 1963, 517.1 ¹ applies to criminal cases, as well as civil cases, presents an issue about which there has been considerable uncertainty.

Thomas argues that GCR 1963, 517.1 requiring the Court to 'find the facts specially and state separately its conclusions of law thereon,' must be followed by the Court in criminal cases for the following reasons:

(1) Application of GCR 1963, 517.1 to criminal cases is compelled by GCR 1963, 785.1(1), which provides as follows:

'(1) The provisions of the Rules of Civil Procedure shall apply to criminal cases, except as otherwise provided by rule or statute, and except when it clearly appears that they apply to civil actions only, or where statutes or special court rules provide a different procedure.'

(2) The Court of Appeals has consistently construed GCR 1963, 517.1 as applying to judge-tried criminal cases. ²

(3) Modern criminal procedure, as evidenced by criminal procedure under the federal rules and a growing practice in other state jurisdictions, provides that the judge shall make findings of fact in bench-tried criminal cases.

Does GCR 1963, 785.1(1) compel application of GCR 1963, 517.1 to criminal cases since there is no other rule or statute which provides differently? A General Court Rule does not apply to criminal cases 'when it clearly appears that * * * (it applies) to civil actions only.' GCR 1963, 785.1(1).

Despite the Court of Appeals cases holding GCR 1963, 517.1 applicable to criminal cases, ³ historical and policy considerations lead us to conclude that GCR 1963, 517.1 should apply only to civil actions.

Although it was recognized early in Michigan jurisprudence that complex questions of fact and law in civil cases frequently require special verdicts, ⁴ only a general verdict has been allowed in jury-tried criminal cases.

The verdict of guilty necessarily encompasses a finding against the defendant on every element of the crime. If sufficient proof does not exist from which the trier-of-the-fact could find every element of the crime beyond a reasonable doubt, a conviction will be reversed, regardless of whether a judge renders the judgment or a jury brings in the verdict. People v. Fairchild, 48 Mich. 31, 11 N.W. 773 (1882); People v. Aikin, 66 Mich. 460, 33 N.W. 821 (1887); People v. Gadson, 348 Mich. 307, 83 N.W.2d 227 (1957).

As early as 1853, Michigan law provided for special findings of fact upon proper request in judge-tried civil cases. ⁵ From 1916 to 1930, Circuit Court Rule No. 45(1) provided in part that 'whenever the court is requested in writing before judgment, the facts as well as the law shall be embodied in the findings.' In People v. Ingersoll, 245 Mich. 530, 532, 222 N.W. 765, 766 (1929), this Court declined to apply Circuit Court Rule 45 to criminal cases, saying:

'We are asked to extend the provisions of circuit court rule No. 45 to the trial of criminal cases before the court without a jury, it being contended that unless this be done a defendant so tried will be deprived of adequate method of review. The Constitution, art. 2, § 19, accords to every accused the right of trial by jury and the Criminal Code recognizes such right, but leaves it to an accused to have such trial or waive the right and be tried before the court.'

The 1931 revision of the Court Rules limited special findings of fact by the judge in civil cases.

Court Rule No. 37, § 11 (1931), provided:

'When an action at law is tried by the court without a jury:

'(b) No special findings shall be required, but it shall be sufficient for the trial judge to find generally for or against the several parties.

'(c) It shall be the duty of the trial judge to sign and file, or to dictate to the stenographer, an opinion in which he shall set forth his decision and the substance of the judgment with a concise statement of his reasons therefor.'

The Committee Notes under § 11 explained this change was desirable because of the overly technical nature of appeals from findings of fact:

'Section 11 is new. It takes the place of Circuit Court Rule 45, which authorized either party, if he saw fit, to demand special findings of law and fact. Unless such special findings were made, it was held that the evidence could not be reviewed by the Supreme Court to determine whether it was sufficient to support the judgment.

'It is an opinion widely held by the bar and bench of this state, that the greatest obstacle to the waiver of juries in civil cases is the requirement of special findings. The preparation of findings in burdensome and there is a great risk of error involved in taking exceptions so as to save the questions which the parties desire to have reviewed.

'Special findings of fact, when employed, become the foundation for the judgment, and the evidence cannot be looked to as in equity cases. It results from this that after a case has been properly established by proof it will always be jeopardized and may frequently be ruined in the process of transcribing it into the form of findings. Every fact necessary to support the judgment must be set out in the findings, and the accidental omission of any one, even though established by undisputed testimony or by admission at the trial, will be ground for reversal, Gray v. Pike, 38 Mich. 650, and the findings cannot be extended by inference or intendment.'

The requirement for findings was not re-established until the General Court Rules of 1963. There is no historical basis for applying GCR 1963, 517.1 to criminal trials.

Turning to policy considerations, defendant mistakenly relies on F.R.Civ.P., 52, to support his position. As the Committee Notes indicate, F.R.Civ.P., 52, was the source for GCR 1963, 517.1. ⁶ However, judge-tried criminal cases are not covered by Rule 52, but by Rule 23(c). ⁷ Federal Rules of Criminal Procedure, which requires special findings of fact Only when specifically requested by counsel. Even Rule 23(c) has been subjected to criticism. ⁸ The Preliminary Draft of the Advisory Committee on the Federal Rules proposed that the Court 'may' make special findings on request, but the United States Supreme Court, in adopting the rules, changed 'may' to 'shall,' making the duty mandatory. ⁹ Criticism of Rule 23(c) has led the Commissioners on Uniform Laws to adopt the discretionary approach of the Advisory Committee on the Federal Rules. Rule 34(c) of the Uniform Rules of Criminal Procedure provides:

'(c) Trial without a Jury. In a case tried without a jury the court shall make a general finding and may in addition find the facts specially.'

This rule, along with the other Uniform Rules of Criminal Procedure, have been approved by the American Bar...