143 N.W.2d 577 | Mich. Ct. App. | 1966
PEOPLE
v.
HOY.
Michigan Court of Appeals.
*668 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald L. Reisig, Prosecuting Attorney, and John Robert Dethmers, Special Assistant Prosecuting Attorney, for the people.
W. Charles Kingsley, for defendant.
Leave to appeal granted by Supreme Court December 20, 1966. See 378 Mich. 744, 380 Mich ___.
QUINN, P.J.
By a plea of guilty, defendant was convicted of being drunk in a public place, third offense in violation of CLS 1961, § 750.167 and CL 1948, § 750.168 (Stat Ann 1962 Rev §§ 28.364 and 28.365). Following sentence of 1-1/2 to 2 years in prison, defendant requested and was furnished post-conviction counsel. Thereafter, defendant filed a motion in the trial court to withdraw his plea of guilty, vacate sentence, and grant a new trial. From denial of this motion, defendant appeals and raises 4 issues, as follows:
1. Is the question of voluntariness or involuntariness (mens rea) to a charge of drunk and disorderly material?
2. Should the defense of chronic alcoholism be recognized in connection with the charge of drunk and disorderliness?
3. Is it cruel and unusual punishment to sentence to prison a chronic alcoholic on a charge of drunk and disorderliness who by statute[1] has a progressive illness and has lost the power of self-control with respect to the use of such beverage?
*669 4. Under GCR 1963, 785.4 should the trial court be required to furnish an indigent a transcript of the hearing on a motion to vacate sentence, et cetera for the purpose of appeal?
He concedes he was drunk in a public place for the third time.
This matter is before us on appeal from the trial court's denial of defendant's motion to withdraw his plea of guilty after sentence. Such motions are addressed to the discretion of the trial court. People v. Vasquez (1942), 303 Mich. 340. The action of the trial court on such a motion will not be disturbed unless a clear abuse of discretion is shown. People v. Barrows (1959), 358 Mich. 267. The only possible abuse of discretion presented by this record is the trial court's negative answer to questions 1 and 2 above. Being drunk in a public place is one of several offenses in the general classification of disorderly persons. CLS 1961, § 750.167 (Stat Ann 1962 Rev § 28.364). The specific language pertinent here is, "any person who shall be drunk or intoxicated * * * in any public place; * * * shall be deemed a disorderly person". The next section of the statute makes conviction of being a disorderly person a misdemeanor and provides the punishment therefor. The statute makes the mere performance of the act an offense; hence the issue of voluntariness is not present. The rule stated by the Supreme Court in People v. Roby (1884), 52 Mich. 577, 579 (50 Am Rep 270), is applicable here. It is, "many statutes which are in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible." We do not find any abuse of discretion on the part *670 of the trial court in answering the first two questions noted above in the negative.
With respect to question 3, while we are aware that some courts have recently held it is cruel and unusual punishment to sentence to prison a chronic alcoholic on a charge of drunk and disorderliness, such decisions are not controlling precedent for this Court and we decline to adopt them as the law of Michigan for 2 reasons. First, this record does not persuade us that defendant is a chronic alcoholic. Second, while we may agree that prison is not the most appropriate place for chronic alcoholics, we are not prepared to say it is cruel and unusual punishment[2] to place them there for their own protection as well as that of the general public.
With respect to question 4, GCR 1963, 785.4[3] does not provide for the transcript here involved.
On its own motion, this Court requested additional information and briefs on the question of compliance with GCR 1963, 785.3. Considering the transcripts made at arraignment and sentence together with defendant's testimony at the hearing on his motion, from the denial of which he now appeals, we find substantial compliance with the rule in question.
Affirmed.
McGREGOR, J., concurred.
The late Judge WATTS who was a member of the panel of judges to whom this case was submitted for determination took no part in this decision.
NOTES
[1] See CLS 1961, § 436.47a (Stat Ann 1965 Cum Supp § 18.1018[1]). REPORTER.
[2] Const 1963, art 1, § 16. REPORTER.
[3] See 373 Mich xv-xviii. REPORTER.
