People v. Joeseype Johnson

196 196 v JOESEYPE JOHNSON PEOPLE

PEOPLE v RING (Calendar 14, 58560, Argued 1978 Nos. 60557. November Docket Nos. 3). 29, 2, 1979. October Decided jury Wayne Joeseype convicted Circuit Johnson was Court, J., Stacey, felonious assault. The trial L. Michael request jury instruct the defendant’s court refused an felonious assault includes as element a crime of injury on and instead intent to inflict an another instructed jury assault must be an "intentional assault”. that a felonious Holbrook, Jr., P.J., McGregor Appeals, D. E. The Court of and JJ., Kaufman, unpublished per curiam and N. J. affirmed in 22311). (Docket appeals. No. Defendant ^{[21] [22] [36]} [34] [35, ^{[32] [33] [31] [23] [37] [30] [27] [18] [26]} [24] [25, [1, [2, [7, [15] [16, [3, [5, Fact 8] 4, 10, 14, 8, 12, 6, 9, 19, 29] ALR2d 1412. 6 Am Jur 38] 6 Am Jur 6 Am Jur 6 Am Jur 21 Am 21 Am Jur 6 Am Jur 21 Am Jur 6 Am Jur 6 Am Jur 6 Am Jur 20 Am Jur 20 Am Jur 17] 6 Am Jur 6 Am Jur 20] Am Jur 73 Am 16 Am 6 Am 11, 13, 13] Jur Am Jur gun 28] 6 Jur 2d, 2d, Am 2d, 2d, 2d, 2d, 2d, 2d, 2d, Jur Jur 17, 19, 2d, 2d, 2d, 2d, 2d, 2d, 2d, References 6 Am Jur was unloaded Assault Assault and Assault and Assault and Assault Assault and Assault and Assault Assault and 2d, Jur 2d, 2d, Statutes § Criminal Courts § Courts §§ Criminal Criminal Assault and 2d, Assault and 20] Constitutional Law 418. Statutes 225. 2d, Assault 6 Am Jur Assault 2d, 71. Law §§ Law 17.§ Law 355. Assault and Battery Battery Battery Battery Battery Battery Battery Battery Battery § Battery and Points §§ Battery affecting and 2d, 81-84. 110-112. Battery §§ §§ §§ §§ §§ § §§ §§ 53.§ Battery Assault §§ 97. 2-4. 2, 34, 28, 32, 34, 6, 3, 4, 8, 2.§ § Battery 3, Headnotes criminal 9. 3. §§ 53, 54. 6. §§ 49, and 33. 54. 9. 3, §§ 50. Battery 4. responsibility. 9, 37, 51. §§ 51, 53. Ring charged David with felonious assault. Kent Circuit Court, Letts, J., trial, prior granted John T. the defendant’s request for an instruction that an element specific bodily injury”. felonious assault is "a intent do to The Danhof, C.J., (M. Appeals, Beasley, Court of F. Cav- J., anagh, dissenting), appeal denied leave to from the order of 77-3295). (Docket people appeal. the court No. The Supreme opinion, signed by The Court issued a memorandum Justices, summarizing holding all of the the of the Court on points. holding. three At least four in Justices concurred each addition, opinions by joined by In there were Justice Williams Moody, by Ryan Chief Justice Coleman and Justice Justice by Fitzgerald, joined joined by Justice Justice Levin Kavanagh. Justice The memorandum held: simple 1. A criminal out assault is made from either an attempt battery places to a commit or an unlawful act which apprehension receiving another in reasonable of an immediate battery. jury 2. The should be instructed that there must be either an injure put intent to or an to intent the victim in reasonable apprehension battery. fear or of an immediate 3. The instruction in Johnson was deficient in that it failed adequately jury requirement to inform the of the intent and in neglected present appre- that it to the alternative "reasonable receiving battery” hension of an immediate form of felonious jurors Ring assault. The in should be instructed that the injure victim, defendant can be if he convicted intended the put battery. him in of an immediate Reversed and remanded for new trial Johnson. in Ring. Affirmed as modified and remanded for trial in Justice Williams wrote: The crime of felonious assault does not include as an element specific injury intent inflict an on another. statutory language 1. simply requires an assault with a dangerous weapon. fact, specific In the absence two kinds of intent, i.e., great intent to commit murder and intent to inflict

bodily murder, required. Consequently, harm less than is the necessary general intent is the intent acts to do involved the assault. 2. Felonious assault is but one of a number of assaultive chapter penal offenses listed XI of the code. Some other specifically assaultive offenses include an element of intent, example, great bodily "assault intent to do Legisla- harm less than murder”. This demonstrates that the requirement specific expressing capable of a intent ture is Legislature that the did not wish for an offense and assaultive specific require of felonious assault. intent as an element battery law were misdemeanors. 3. At common law, Legislature codifying the created a When criminal "aggravated” offenses which did not serious or series of more separate The obvious intent of crimes at common law. exist as punish severely Legislature those ac- is to more assaults aggravation, e.g., injury, companied by degree serious some Therefore, dangerous weapon, or a intent. use of a established, accompanied aggra- must basic assault be requirements particu- vating to meet circumstances requires an assault lar The offense of felonious assault sections. dangerous weapon. aggravated by no of a There is use argument requires support that the offense more than for the The intent element of felonious assault those elements. act, general an intentional unlawful the same shown previous simple To the extent that caselaw needed for assault. holding, it is conflicts with this overruled. given Johnson included the instruction charged pertinent parts crime of the and stated that the statute revolver, danger- a which is a intentional assault with "an apprise jury weapon”. ous This was sufficient to instruction of the of felonious assault. of the elements crime agreed give the trial to in 5. The instruction which court however, injury” mandatory Ring, bodily made to do “intent That is erroneous of felonious assault. instruction element prosecution specific require show a would to because it injury. intent to inflict reasoning agreed dispos- Ryan in Justice Levin’s Justice with ing includes as an the issue felonious assault of whether disagreed, specific bodily do harm. He element a intent to however, reading caselaw on the Levin’s of recent Justice his that in Michi- definition of criminal assault and conclusion apprehension gan unlawfully putting of another in reasonable injury not a crime. is simple 1. is out from either an A criminal assault made places attempt battery which or an unlawful act to commit receiving battery. apprehension The in reasonable another adopted assault different Court has a definition criminal Carlson, People v but from that of its decision in in there two merely the observation that are clarified restated assault, attempted putting battery in of criminal kinds fear. held, suggests in a 2. that the has also Levin Court Justice People v Doud, People v decision in before defendants Johnson and assault, Ring charged were with felonious that felonious assault by proof putting cannot be established of conduct another in case, however, apprehension injury. was concerned jury with the correctness instructions which shifted the inquiry away from the intent of the defendant and focused upon instead the belief or fear of the victim that the defendant weapon properly intended to fire a at him. The Court concluded governing upon that such fear is not to be understood as question purpose of the intent or of an accused under the say assault statute. The Court did not that the accused’s intent purpose put apprehension to the victim in reasonable of an battery support immediate would not a conviction of assault. jury 3. The instruction to the v Johnson was respects: adequately jury deficient in two it failed to inform the specific requirement neglected present intent and it to assault, put the alternative of felonious intent form apprehension battery. proposed victim in of an immediate jury People Ring present instruction to the also did not alternative form of felonious assault. The court in each case should instruct on the alternative definitions of as- sault, specific and on intent that there must be either an intent injure put or an intent to the victim in reasonable fear or battery. of an immediate Levin, dissenting, Justice wrote: Although Legislature’s controlling, intent is since agree dissenters with the lead it intended that felonious assault be common-law assault committed with a dangerous weapon, the meritorious constructional issue turns solely on the elements of the common-law offense. The presented is whether the definition of the common-law crime of judicially expanded Michigan assault has been or should be menacing injure. to include without intent A particular element, injure, required mental Legislature commission of the common-law offense. The incor- porates "assault”, that mental element when it uses the term and its explicitly failure to restate the element in the statute many does not it eliminate as an element. There are common- penal law offenses for which no mental element in is stated the particular code but for which there is a mental required. argument Legisla- element Thus the based on the required ture’s failure to restate the "intent to” for commission jurisprudence. Statutory of an assault is at odds with the analysis determining does not assist in what constitutes "the 196 200 407 Mich agreed it common-law crime that is the basic once is assault” of assault. law, attempted of was an the crime assault At common necessary attempts battery. all is an intention to element of A here, An element of the other offense commit another offense. touching, injurious battery, or offensive. Hence is a either at common law was an inten- of the crime of assault element offensively. injuriously or tion either to touch appre- necessary of the tort of civil assault is 3. A element expanded injury. jurisdictions the which have hension of Those menacing (creating the crime of assault include definition of recog- injury) generally apprehension done so without of have nizing law civil and crimi- the distinction at common between however, Michigan, that distinction has hereto- nal In assaults. Court, construing preserved. first the fore This when been Doud, People in v Mich in 1923 223 felonious assault statute (1923), 120; upon full of the law in 884 consideration 193 NW question jurisdictions whether an assault this other on and by menacing (creating apprehension in- of can be committed controlling jury), that defendant’s intention was concluded that it cannot convict and must be instructed that ("inflict injury” that he intended "to do an unless it concludes hurt”), menacing injure corporal without out The does not make the offense. distinction between carefully was and civil-law definitions of assault criminal- preserved. observed and Burk, People 485; opinion v 238 Mich 213 4. The lead cites Sanford, 460; (1927),People NW2d NW 717 Johnson, App 544; (1978), v Richard (1972), "controlling law”. Burk as the case Neither NW2d 340 opinion speaks "specific all of in Sanford at nor the lead holding opinion that menac- intent”. Neither adverts Doud’s assault; ing party no in Burk or Sanford contended not incorrectly crime Doud The whether the was decided. presented, by menacing not be assault can committed argued, lead or discussed in Burk. declaration opinion can in Sanford that the common-law offense attempted battery or creation be committed either an necessary injury to deci- reasonable was not sion, dictum, "controlling case law”. Nor is and is Appeals in Johnson "control- of the Court of Richard decision ling concurring opinion case in this states case law”. "adopted presently Court four members of the seated accepted reasoning conclusion of Justice Williams signed Three Justices Justice Williams’ Sanford". People y Joeseype agreed and two in the result with Sanford concurred issues, agrees disposition of some of the but a Justice who disposition adopted reasoning or has the result not or opinion; dictum of an a Justice is free to later state that he adopts reasoning or dictum of an but such a later agreement cannot law. have retroactive effect on the concurring opinion in this case is in its correct statement words, say, many put that Doud did not in so that intent to in battery victim reasonable of an immediate However, support not could a conviction of felonious assault. an analysis clearly of Doud the Court shows that considered and rejected "menacing” the alternative form of assault. The con- curring opinion Carlson, in this case relies on 426; (1910), holding 125 NW 361 as that there are two assault, attempted battery putting of criminal kinds fear, merely and states that Sanford restates and clarifies hold; Carlson. Carlson did so it that said rather the two definitions, together, may "taken be said to include all neces- sary changed elements”. Thus assertion that the law was Sanford is before incorrect. Sanford, today, It could not be said before or after until threatening menacing had this Court declared that or assaults part simple of the or were law of felonious assault. It cannot properly be said that a defendant had been forewarned. The case, concurring opinions lead and in this in combination with opinion, changed the memorandum have the law. adopted jurisdic- majority Whether the rule is the rule in a not, acknowledge or doing tions this Court should what it is give doing a better than reason are it others for adoption overruling of a new rule of law a decision of the Court, nearly contemporaneous with the enactment of the statute, guided disposition which has of cases more than century. half a general specific 5. The of an characterization offense as a or crime, important purposes, intent while for some is at best a generally conclusion derived from the elements offense. It is therefore circular to decide what those elements are based general specific on the conclusion that the offense is a or intent crime. menacing 6. Even if be is to an alternate means commit- ting assault, the crimes of assault and felonious it does not particular follow that there is no or mental element. In jurisdictions menacing those common where at law is an alter- offense, committing nate means of to threaten intent an element of the There offense. thus must be either an intent appears offensively injure/touch to threaten. It an intent jurisdiction any the com- unprecedented to hold that to be by the intentional can be committed of assault mon-law crime regard whether without of an "unlawful act” commission offensively injure/touch intent to committed with act is intent threaten. Johnson, Instructing jury, find an that must not differentiate between "intentional assault” does injure or inference of intent to commit an act from which an drawn, injure may or The and intent to threaten. threaten be therefore, not, The error in refus- "sufficient”. instruction was cannot, ing the then extant to law instruct accordance facts, harmless. the be said to have been on concepts empowered is to redefine common-law 8. The Court However, although they incorporated it is a are into statute. apprehen- thing the creation of an to hold that henceforth one injury crime to the common-law sion of is sufficient constitute misdemeanor, assault, incorporate quite to another a and of Assimilating the felonious assault statute. that definition into felony in a statute results substantial such a redefinition into Legisla- penalties. aggravation of criminal The of scheme punishment is all as a misdemeanor ture indicated that has malice, intentionally, pointing or is without that warranted despite any person, aiming any or toward other firearm at causing apprehension dangers inducing peace or of a breach of public accompanies It such actions. which decide, Legislature and to policy, should whether which the one potentially penalties law severe criminal what extent brought apprehension of on one who creates should to bear be causing intending injury. injury to or cause without implicated question plainly address a The Court should also holding, policy lesser its on instructions on policy offense The has been that a lesser included offenses. charged given can be where the offense instruction shall not years the lesser to lead to a sentence of two more and respect recently policy revised with more than one. The $100, larceny now in and a similar revision is over under and intentionally pointing respect order with to the lesser offense of simple gun perhaps and assault. even Heretofore, changed the definition when this Court has offense, ruling prospectively. applied it has its new a criminal Ring, acts before and who committed Defendants Johnson dictum, have their cases entitled to Sanford decision and its are and felonious of the crimes of assault tried under definition were committed. assault extant when their offenses op the Court Battery — Elements of Crime. and 1. Assault attempt an simple is made out from either A criminal assault places battery another in an unlawful act which commit a receiving battery. apprehension of an immediate reasonable Battery — — 2. Assault of Crime. Intent Elements simple required is either an for a criminal assault The intent put injure victim in reasonable or an intent to intent to battery. apprehension of an immediate fear or Battery — — — Ele- Intent Felonious Assault 3. Assault Jury. — of Crime Instructions ments prosecution jury assault must be ade- in a for felonious requirement, quately and must be informed of 'the intent receiving apprehension of an on the "reasonable instructed battery” as well as the form of felonious assault immediate 28.277). (MCL750.82; "attempted battery” MSA form Battery — — — In- Intent Felonious Assault 4. Assault Jury. structions prosecution must instructed in a for felonious assault be injure be convicted if he intended to that a defendant can receiving put him in reasonable victim or 28.277). (MCL 750.82; battery MSA immediate

Opinion Williams, Battery — — 5. Assault Intent. Assault and Felonious not include as an element a The crime of felonious assault does (MCL 750.82; speciñc injury MSA intent to inñict an on another 28.277). Battery — — 6. and Felonious Assault Elements Assault —Crime Intent. assault) (felonious dangerous weapon Assault with a is a crime of general intent; only clearly requires an assault statute 28.277). (MCL 750.82; dangerous weapon MSA which is with a Battery Legislative — — and Intent. Assault Statutes assault, concerning Legislature, codifying the criminal law obviously punish severely assaults intended to more those e.g., injury, accompanied by degree aggravation, serious some weapon, speciñc dangerous another use of a or a intent to harm (MCL seq.; seq.). 750.81 et MSA 28.276 et Battery — — 8. Assault Elements of Crime and Intent. general intent;

Simple only a crime of criminal assault is prosecution necessary for the to show an intentional unlawful 28.276). (MCL 750.81; act MSA Battery — — — 9. Assault and Felonious Assault Intent Evi- dence. The intent element of felonious assault is shown an inten- 28.277). (MCL 750.82; tional MSA unlawful act Battery Weap- — — — 10. Assault and Felonious Assault Intent Jury. —ons Instructions jury pertinent parts An instruction to the which included the charged the felonious assault statute and stated that the crime revolver, danger- was "an intentional assault with a which is a weapon” apprise jury ous was sufficient to of the elements (MCL 28.277). 750.82; of the crime MSA Battery — — — 11. Assault and Felonious Assault Intent In- Jury. structions bodily An instruction to the which made "intent to do injury” mandatory erroneous; element of felonious assault is prosecution only general need show the intent which is assault, required simple the commission of an unlawful act (MCL 28.277). 750.81, 750.82; 28.276, MSA Ryan, J. See headnote 15. Battery —

12. Assault Words Phrases. simple attempt A criminal assault is either an to commit a battery places or an unlawful act which another in reasonable (MCL apprehension receiving battery 750.81; an immediate 28.276). MSA Battery Weapons. —(cid:127) — — 13. Assault Intent Fear The belief or fear of the victim that the accused intended to fíre a weapon govern upon at him does of the intent purpose of the accused under the assault and felonious statutes; however, it has not been held that the ac- purpose put cused’s intent or the victim in reasonable battery support of an immediate would not (MCL 750.81, 750.82; conviction of assault or felonious assault 28.277). 28.276, MSA Battery — — 14. Assault and Felonious Assault Instructions to Jury — Intent. jury in a trial for felonious assault Instructions to the should assault, i.e., attempt include the alternative definitions of an to battery places which or an unlawful act commit a another in apprehension receiving battery, reasonable of immediate injure must be and also that there either an or an put victim in fear intent to reasonable or of (MCL 750.81, 750.82; 28.276, battery an 28.277). MSA immediate

Opinion by Levin, J. — n Battery — Weapons — Felonious Assault Assault and Legislative Intent. Legislature intended that felonious assault be the common- dangerous (MCL weapon law crime of assault committed with a 28.277). 750.82;MSA Battery (cid:127)— — — 16. Assault and Intent Elements of Crime Common Law. (intent speciñc particular injure) A or mental element required for commission the common-law offense of assault. Battery — — 17. Assault and Felonious Assault Elements of — —Crime Intent Common Law. Legislature incorporates into felonious assault the mental element of the common-law crime of assault when it uses the "assault”; term failure to restate that mental element in the (MCL 750.82; statute 28.277). eliminate it does not as an element MSA — — — 18. Criminal Law Intent Elements of Crime Penal Code —(cid:127) Common Law. generally There is an "intent to” element of common-law of- fenses; expect requisite intent, one not does to ñnd the offense, any indeed element of a common-law restated in the penal (although stated), code elements are sometimes but looks complete to the law common for a deñnition. Battery — — — 19. Assault and Intent Elements Crime — Common Law Statutes. speciñc particular differentiating The delineation of intents categorical penal legislative assaults in the code evidences purpose provide penalties differential for different kinds penalty, assaults that otherwise would all the same entail purpose change the mental element the undifferentiated 407 (MCL seq.; et MSA 28.276 of 750.81 offense common-law assault seq.). et Weapons — — Battery — 20. Assault Assault and Felonious Punishment. punish agree Legislature the intended to more One can degree aggrava- accompanied by severely of some those assaults weapon, tion, i.e., dangerous injury, of a or a use serious implication intent, agreeing speciñc the without with dangerous enlarged penalty may imposed simply because a be (MCL seq.). seq.; weapon et MSA 28.276 et 750.81 used op — Battery — Elements 21. Crime Common Law. and Assault attempt to commit a A at law was an criminal assault common battery only. and that Attempts — — 22. Intent. Criminal Law speciñc attempt any requires a crime intent An to commit that crime. commit Battery — — — Ele-

23. and Intent Felonious Assault Assault — Words and Phrases. ments Crime law, meaning the common another word "assault” has one law, meanings ordinary meaning still other in tort bodily usage; intent cause a involves an criminal and, hence, injury of felonious as an element of offense assault, proof made of the victim’s and the offense is not out (MCL 28.276, 750.81, injury 750.82; MSA 28.277). Battery — —(cid:127) 24. and Phrases. Intent Words Assault injury necessary a of a reasonable fear of immediate is Creation case, ’’assault” has of an assault in a civil but word element law; consequence, meaning different criminal support dependence gives civil little to a on a law deñnition (MCL required crime on the intent for the of assault statement 28.276). 750.81;MSA — Battery — — Com- Felonious Assault Intent Assault Overruling —Law Decision. mon give Supreme obliged than better reason Court adoption jurisdictions doing of a rule of law are for new other required overrules a felonious assault which on the intent for Court, nearly contemporaneous enact- decision statute, guided which felonious assault has ment (MCL disposition 750.82; century of cases for more than half a 28.277). MSA Specific — — 26. Criminal Law Intent Intent. general speciñc of an

Characterization offense as a intent crime, important purposes, while for some is at best a conclu- generally offense; sion derived from the elements of the it is therefore circular to decide what those elements are based on general speciñc the conclusion that the offense is a crime. Battery — 27. Assault and Intent. justiñcation requiring

There nois a lesser mental element for assault; a criminal assault than for a tortious the caselaw in jurisdictions those where at common law the crime of assault by menacing uniformly can be committed holds that an inten- injury tion to create is an element of the offense, appears unprecedented and it to be to conclude other- (MCL 750.81, 28.277). 750.82; 28.276, wise MSA Battery — — — 28. Assault and Felonious Assault Intent In- Jury. structions to Instructing jury a on the crime of felonious assault that it must ñnd an "intentional assault"' does not differentiate between to commit an act from which an inference of intent may injure drawn, injure or to threaten be and intent so to threaten; not, therefore, sufficient, the instruction was and the refusing law, existing error in to instruct the on the on the pointed pistol complainant, facts that the defendant a at the ordered him not to move from the door of a motel room where complainant making delivery, attempted the was to force

open complainant the door of the motel the room while stood outside, ñnally complainant go and occupants let the when the door, open of the motel room refused to cannot be said to (MCL 28.277). 750.82; have been harmless MSA Supreme — — 29. Common Law Statutes Court. Supreme empowered The Court is to redeñne common-law con- cepts although they incorporated are into a statute. Battery — — — 30. Assault and Intent Evidence Inferences. injure The trier of fact must ñnd an intent to sustain a assault, although may conviction of the defendant’s intent be accompanied by inferred from evidence of threats an unlawful (MCL 750.81, 750.82; 28.276, condition and a show of force MSA 28.277). — — Battery — and Felonious Assault Intent Evi- Assault Weapons. — dence gun prosecutor required prove that a is not defendant’s assault; was loaded his intent in a trial felonious to show unloaded, case, gun if that is is a the fact that was 28.277). (MCL 750.82; matter of MSA defense Battery — — 32. Assault and Felonious Assault Intent. may of assault or felonious trier of convict defendant fact injure persuaded that defendant intended to when complainant complied with an unlawful condition unless he showing proscribed kind with a stated the defendant force, persuaded injury that no was in- acquit when threat, complain- frightening to the albeit tended and that the 28.277). 28.276, ant, (MCL 750.81, 750.82;MSA was idle Battery Policy. Weapons — — 33. Assault Public compensation person wronged provide Tort law to a seeks to him, having gun pointed regard injury at without whether intended; public policy, was it is a different how- ever, decide, Legislature which and to what should whether potentially penalties law extent severe the criminal brought be should to bear. Battery — — — 34. Assault Felonious Assault Common Law Prospective Application. changed Supreme Heretofore when the Court has the deñnition offense, applied ruling prospectively; of a criminal it has its charged his defendant with felonious assault entitled to have case tried under the common-law deñnition of the crime of when assault and felonious assault extant the offense (MCL 28.276, 28.277). 750.81, 750.82; committed MSA Prospective Application. — — Law Law 35. Criminal Common Application change of the common-law deñnition of a crime by judicial without of statute to the defendant decision the aid announcing change in the case the not does violate the consti- against post tutional bar ex laws because that bar is facto legislative body, clearly directed to but violates underlying punished doing principle that no be for one should what had done not been deñned a crime at time it was 10). (US Const, 9, 1963, 1, 10; art art §§ § Const Supreme Opinions Holding — — — Law 36. Common Court Concurring —Case in Result. agrees disposition A Justice who with the a case has result or is, adopted reasoning opinion; of an he dictum op the Court course, adopts reasoning free to state later he dictum, agreement but such a later have cannot retroactive' effect on the law. — — (cid:127)— Law Words and Phrases Common Observation Dictum. is, deñnition, nothing An "observation’’ the Court more dictum; "clarifying” than dictum dictum still dictum. Application. — — 38. Criminal Law Law Common Retroactive fundamentally wrong apply law, It is a new rule of substantive crime, making menacing retroactively assault a act to an done Supreme before the Court declares the ñrst time opinion signed by four new Justices that the rule is to be the Michigan. law Kelley, Attorney General, Frank J. Robert A. Derengoski, Solicitor General. Prosecuting Attorney, Cabalan, L.

William Ed- Reilly Principal Appeals, Attorney, Wilson, ward Baughman, Timothy Prosecuting A. Assistant Attorney, people in for the Johnson. Sawyer, Prosecuting Attorney, H.

David Appellate Attorney, Johnston, A. III, Donald Chief people Ring. for the Appellate (by State Defender Kathleen M. Cum-

mins) for defendant Johnson. Riddering, Wierengo (by Varnum, & Christenson Kolenda) Ring. Dennis C. for defendant Opinion. These consolidated Memorandum arising prosecutions cases, out of for felonious assault, concern on instructions the mental element of the common-law offense of assault and statutory offense of felonious assault. people’s proofs at trial in Johnson and at preliminary Ring examination in tended to pointed show that in each case the defendant 407 Mich the Court of gun complainant no was fired. The at but shot the they to had no intention claim that defendants injure jury instructed that it the must be and that may it intent. The finds such not convict unless in Johnson; in before trial instruction was refused Ring agreed judge to so instruct. the majority the Justices are of

A of 1) simple "is made out from criminal assault attempt battery commit a or an either an places in which another reasonable unlawful act apprehension receiving battery”, an immediate of People Sanford, 460, 479; 265 NW2d v (1978),

2) jury that there must should be instructed put injure intent either intent or an be apprehension fear or of the victim in reasonable battery, an immediate

3) in Johnson was deficient the instruction respects: adequately to inform the it failed two neglected requirement and present alternative "reasonable receiving battery” form feloni- an immediate Ring jurors instructed assault; should be ous if he intended to that defendant can be convicted appre- put injure him in reasonable the victim receiving battery. hension of an immediate trial for a new We reverse Johnson and remand Ring affirm the trial court’s decision modified remand for trial. defense

Johnson did not raise an intoxication or felonious whether assault purpose assault are intent crimes voluntary is not raised intoxication defense argued been the facts and has not briefed opinion on us; no and is not before we intimate question. Opinion Williams, J. signed by This memorandum seven separate concurring There are Justices. and dis- senting opinions. However, at least four Justices every holding, disposition in concur statement and opinion. of this memorandum C.J., Coleman, Kavanagh, Williams, and Blair Levin, Fitzgerald, Ryan, Moody, Jr., JJ., concurred. appeal granted J. Leave to

Williams, single question: these cases to consider a "whether specific felonious assault includes a intent as an 750.82; element.” MCL MSA 28.277. 402 Mich 855 (1978). granted precedents

We leave because the in this give Court do not a clear answer to the recently, prevailed and, until the same situation Appeals. the Court of speciñc

Our answer is that intent is not an 750.82; element MCL MSA 28.277: Any person "Felonious who shall assault assault — revolver, gun, pistol, knife, bar, another with a club, iron dangerous brass knuckles or other weapon, but intending without murder, to commit the crime of intending great without bodily inflict harm less than murder, the crime of guilty shall be felony.” of a specific We hold intent is not an element for these reasons:

(1) specific There is no intent written into the specific par- section while two forms of intent are ticularly excluded from the section.

(2) 750.82; MCL MSA 28.277 is one of a number in Chapter penal of assault sections XI of the code. particularly 750.82; MCL MSA 28.277 does not Mich 196 Opinion Williams, of the others intent, most whereas define a do.

(3) history 750.82; of MCL The structure this section entitled MSA 28.277 demonstrate felonious assault properly called more be should just weapon. dangerous that, It is assault with danger- aggravated simple of a the use necessary only weapon. is the intent ous necessary general an assault.

(4) controlling Burk, 238 law, v case (1927); People Sanford, v 485; 213 NW 717 Mich (1978); People Rich- 460; 265 NW2d App 544; 202 NW2d 340 Johnson, ard (1972), an element is not holds assault. of felonious People trial court refused the

In v Johnson separate give criminal intent for instruction on a prosecu- assault, instruct that but did felonious tion must prove assault. The Court an intentional Ap- Appeals affirm the Court affirmed. We of peals People v Johnson. agreed People Ring in- court the trial In v bodily in- "intent to do struct necessary jury” felonious assault. element of was a appeal. Appeals We denied leave to The Court of reverse the decision give of the trial court bodily injury” re- instruction "intent to do opinion. this consistent with for instructions mand

I. Facts People v Johnson A. complainant, 1974, 3 a.m. at about

On June pizza motel Jefferson, to a delivered a Ramone Highland ten-dollar Park. He received a room payment and returned his customers from bill complainant change. When to his automobile Joeseype Johnson Opinion by Williams, J. by- returned he was met outside the motel room pointed pistol Johnson, defendant who a at him and ordered him not to move. The custom- pointing gun ers slammed the door. While at attempted Jefferson, Johnson to force the door open. This went on for about ten minutes. Defen- right "stay dant then told Jefferson to there”. Complainant remained in front of the motel room nearby while walked out to a terrace. again attempted When Johnson returned he gain entrance to the motel room. When the cus- open door, tomers refused to defendant told complainant go. that he could

Complainant immediately manager’s went to the reported leaving office and the incident. After manager’s complainant office the saw Johnson walking (complainant’s) Complain- toward his car. manager’s ant then returned to the office. After a manager’s office, few minutes Johnson entered the pulled up indicating shirt, his that he did not have pistol legal said, "See, I’m now.” Jefferson police reported left, drove to a station and manager’s incident. He returned to the office with police standing officer. Johnson was still in the manager’s complainant office. The identified John- promptly son and Johnson was arrested. charged

Defendant assault, with felonious violation of 750.82; trial, MCL MSA 28.277. At requested separate defense counsel on criminal "a instruction judge intent”. The trial stated that People App Clark, v 645; 210 NW2d 906 (1973), specific "indicated that is not an * * * element of crime —of '[T]he felonious assault. only necessary prove elements and sustain a conviction of felonious assault are assault and that dangerous weapon making was used in the as- sault.’” 407 Mich 196 Opinion Williams, on following instruction judge gave

felonious assault: case, charged with an of- the defendant is "In this assault; known as felonious commonly

fense which is the statute from which drawn, is so far the information any person provides as follows: material as the same [is] revolver, pistol, gun, another with a who shall assault bar, club, dangerous knife, knuckles or other brass iron intending commit the crime of weapon but without and without intending great bodily to commit murder guilty of a murder shall be deemed less than harm attempt with force and or offer felony. An assault is violence to harm another. Mr. testimony satisfied from you

"If are a re- an intentional Johnson committed weapon likely produce dangerous which is a volver great bodily injury accurately is one more described attempted to be used to in which in the manner commit great bodily harm.” con- affirmed defendant’s Appeals

The Court of 10, unpublished per 1976 in an on March viction 22311). (Docket granted We curiam No. 1978, 20, 402 Mich 855 appeal January leave to (1978), following issue: whether "limited to the intent as an includes a felonious assault element.” Ring

B. 1977, roofing of March morning On blocking temporarily work crew was company’s driveway. truck into a One backing traffic while Heney, Tom company’s employees, truck. Defendant directing traffic around stopped traffic. Ring approached David ex- preliminary presented at testimony the events interpretations amination offers two stopped that he testified followed. Defendant Heney. the truck directed around and was Opinion by Williams, J. passing truck, defendant heard a loud While coming side of his automobile. He thud from the direct-, got person stopped and out of his car. The ing very angry with defendant and traffic gestures obscene and comments. Defendant made got in his car and left. back working presented crew a differ-

Members of They incident. ent version of the testified that ignored signal stop, defendant wove and way through out of traffic and forced his striking Heney. nearly bottleneck, The truck was subsequently parked off the street. 20 min- About company personnel noticed utes later defen- returning dant’s automobile and came down from license-plate roof to obtain his number. Defen- stopped Complainant, Roger dant on the street. VorenKamp, was the first to reach the street. He approached defendant’s automobile. Defendant and VorenKamp exchanged Ring produced words. then pistol pointed from the seat beside him and it at VorenKamp sped away. employees and then license-plate noted defendant’s number called police. Defendant testified he returned to the site work get the truck license number and that complainant, carrying roofing ap- tools, his proached within a foot or two of defendant’s car and shouted loud and obscene comments at defen- complainant pull dant. When told defendant driveway into the so that the matter could be picked up toy pistol settled, defendant from the pointed front seat of his it at the automobile complainant. Complainant immediately left defendant drove off. police registration sup- traced the vehicle

plied by the work crew to defendant and at- tempted Subsequently to find him. defendant went Opinion Williams, J. police headquarters of own volition. He his VorenKamp acknowledged the confrontation pistol toy only a he had it was but claimed that plastic pistol. Ring police a The used. handed gun VorenKamp toy who to officer showed the gun which defendant not the stated had it was police pistol pointed checked the him. at safety inspection records found defendant safety presented .38-caliber revolver had a They inspection confiscated this on June identify weapon. complainant was unable to pointed gun him. at the confiscated the one charged with later defendant was About five weeks dangerous weapon, 750.82; MCL with assault a 28.277. MSA requested to instruc-

Prior trial defendant dangerous with a tion on elements weapon. Proposed "A” Instruction reads:

Defendant’s defendant, charged Ring, David "The is dangerous weapon. is of assault with a This crime crime often to as felonious assault. very referred "To establish the crime felonious assault and crime, Ring’s guilt prosecu- of that establish David following prove must all three of the elements tion beyond a doubt: reasonable "(1) Ring pointed danger- deliberately That David complainant; weapon at the ous "(2) That, so, so, Ring he did if he did David when complainant although bodily harm intended harm less than murder do great bodily than and less harm, and

"(3) Ring justifi- excuse That David acted without cation. bodily necessary "The is intent do second element do knowingly mind to

harm. Intent a decision [objective] formed fully an act with conscious Opinion Williams, J. which a The intent with result. a certain accomplishing it expresses he way is known an act person does by his conduct. When way he indicates crime, that of a necessary element is a certain crime intent did not if the committed have been cannot no crime of felonious there can be Accordingly, exist. assault bodily harm.” intent to do there is no where found, The trial court Proposed In- hereby that defendant’s ordered "It is that, having ruled given, court 'A’ be this

struction Michigan Jury Instructions Criminal contrary to the crime of felonious respect to the Commentary with and assault, injury to the com- bodily specific intent to do of felonious assault element of the crime plainant is an beyond a reasonable prove must people which doubt.” leave to application filed an

The prosecution giving requiring the decision appeal instruction, Appeals. Court of with the requested 30, 1977 September was denied application The 77-3295). then filed an (Docket prosecution No. Supreme with the appeal for leave to application 20, appeal January leave granted Court. We (1978), the follow- 1978, "limited to 402 Mich 855 includes felonious whether ing issue: an element”. intent as specific Specific 750.82; MSA MCL II. No Intent

28.277 750.82; MSA 28.277 states: MCL gun, with a another "Any person who shall assault knife, bar, club, knuckles or revolver, brass pistol, iron intending to com- weapon, dangerous but without other mit intending to murder, and without the crime of Mich Opinion by Williams, great murder, inflict bodily harm less than the crime of added.) guilty felony.” (Emphasis shall be of a statutory language require any does not specific simply requires intent, it an assault with a dangerous weapon. language negates In fact the requirement types specific intent, i.e., of two great intent to commit murder and intent to inflict bodily wording Consequently, harm less than murder. support allega-

of the statute cannot specific tion that a intent is an element of feloni- only necessary gen- ous assault. The intent is the eral intent to do acts involved in the assault. The requiring only statute is clear an assault and dangerous weapon. with a

Generally dangerous weapon assault with a is interpreted general as a intent crime. "No is necessary to constitute the- crime, may other than such as be embraced in the act making dangerous of embraces weapon. assault with a This simply the intentional and unlawful use of a dangerous weapon, by means of which an assault weapon upon person

committed with such other.” 1 cedure of an- Anderson, Wharton’s Criminal Law and Pro- (1957 ed), 361, p 720. § III. Other Assault Sections Have Specific Particular Reference Intent "Chapter penal XI. code, Assaults” MCL seq.; seq., 750.81 et MSA 28.276 et derives from prior 1931 PA which in turn was based on "Chapter enactments. XI. Assaults” lists a series punishable of assaults as either misdemeanors or depending severity felonies on the of the offense. points importance to the issue in the first, instant case are: felonious assault is one but of a number of assault offenses listed in successive 219 Opinion Williams, J. language 328, second, and 1931 PA

sections of not include a does assault section of the felonious specific in catch- harm another either intent to setting the offense forth or in the text line title punishment, a number of other whereas the in- offenses where deal with assault sections specifically set forth harm another tent text of the title and the catchline both offense. "Chapter XI. As- listed

The assault offenses follow: saults” battery, 328; PA and assault and

1. assault 28.276 750.81; MSA MCL injury, 1931 of serious and infliction 2. assault 750.81a; 328, 237; 1939 PA MCL PA as added 28.276(1) MSA 750.82; assault, 328; PA MCL

3. felonious 28.277 MSA murder, 1931 intent commit with

4. assault 750.83; MSA 28.278 328; PA MCL gréat bodily harm intent to do 5. assault with 328; 750.84; murder, MSA less than 1931 PA MCL 28.279 maim, 328; 1931 PA

6. assault with intent 750.86; 28.281 MCL MSA felony commit 7. assault with intent punished, 750.87; 328; PA MCL otherwise MSA 28.282 being to rob steal

8. assault with intent unarmed, 328; 28.283 750.88; 1931 PA MCL MSA being

9. assault intent to rob steal 94; armed, as 1939 PA PA amended 750.89; MCL 28.284. MSA require a intent list The sections which example element, assault with intent great bodily murder, to do harm than less 750.84; MCL 28.279: MSA 407 Mich Williams, great bodily "Assault with intent to do harm less person Any than with who shall assault another murder— harm, great bodily intent to do less than the crime punishable guilty felony shall be of a murder, imprisonment prison in the state not more than 10 years, by added.) 5,000 fine of not more than dollars.” (Emphasis compared This is to be with the felonious assault section, which reads as follows: "Any person gun, who shall assault another with a pistol, revolver, knife, bar, club, iron brass knuckles or intending other but without to com- dangerous weapon, intending murder, mit the crime of and without great bodily murder, inflict shall be harm than less the crime of added.) guilty felony.”(Emphasis of a

Comparison "Chapter of those sections of XI. specifically require- Assaults” which set forth the specific ment of a intent to harm another with the points. felonious assault section demonstrates two Legislature beyond perad- First, the demonstrates particular venture that when it intends a offense require specific intent, to, a it knows how require specific Leg- does, Second, intent. islature demonstrates that in the case of felonious require specific it does not intend to consequence, intent. As a this Court should follow legislative require intent and not intent for felonious assault. Simple Only 750.82;

IV. MCL MSA 28.277 Is Dangerous Weapon Assault Plus battery At common law assault and were misde codifying law, meanors. When the criminal Legislature created a series of more serious or "aggravated” sepa offenses which did not exist as Opinion Williams, J. Although partly law. based

rate crimes at common battery, crimes of assault and on common-law aggravated now offenses are felonies. some "Although crimes common law created twin (misdemeanors) battery, in times assault and modern legislatures everywhere crimes have added more serious (felonies) aggravated assaults and batteries of rape; battery (e.g., assault, kill, rob, assault, with intent to dangerous weapon).” battery LaFave & p80, Scott, Law, § 603. Criminal Michigan codification, Code, The 1931 Penal "aggravated” Chapter XI as- which lists contains essentially unchanged to It remained saults. has day. this Chapter XI is

The basis of the offenses listed assault; this is evident from catchlines an particular of sections. The obvious intent text punish severely Legislature is to more those of degree aggrava- accompanied some assaults e.g., dangerous injury, tion, of a serious use weapon Therefore, intent. the basic accompanied by established, assault must be requirements aggravating circumstances to meet particular of the sections. requires 750.82; "assault MCL MSA 28.277 an *

* * * * * dangerous weapon”, other with a aggravated by words a dan- an assault use of gerous People Goolsby, weapon. 375; In (1938), prosecution 279 NW 867 for felonious automobile, assault with said: the Court penal interpretation of a statute "Construction or requires ized. sought penal- consideration the evil to be legislative evil, consideration, under dangerous weapons.” aggravated by assaults, of 284 Mich use 375, 379. 407 Mich Opinion Williams, J. analysis legislative This concerns demon- strates that (1) the elements felonious assault are (2) dangerous employment an assault and of a weapon. again supra, Burk,

In this Court listed the ele- "an ments of felonious assault as assault with a dangerous weapon” without the intent to murder great bodily harm the intent to do less than said, murder. The Court "If defendant assaulted dangerous weapon Foster with a he would be charged, regardless guilty of the offense of his injure him.” 238 intent to is, We conclude that felonious assault as the dangerous weapon. states, statute assault with a allegation support There is no for the requires offense more than those elements.

Simple acknowledged criminal assault as a general only words, intent crime.1 In other it is necessary to an intent to commit an show unlaw- satisfy simple ful act the intent element of assault. Since felonious assault is assault with a dangerous weapon, the intent element of felonious by type i.e., act, assault intentional is shown the same of specific act. in- unlawful There is no necessary gen- only assault, tent for felonious the simple eral intent needed assault.

V. Present Case Law There are four critical cases to consider in re- viewing position the of this Court on the specific "whether felonious assault a in- includes They chronologically: tent as an element”. are 1 acknowledged This is in to the intoxication defense. relation Generally only specific In intoxication is a defense intent crimes. context, this not available to one has been found that the defense is assault, Comstock, 312; charged simple People v 115 Mich (1897). 73 NW 245 People 223 v Opinion Williams, 193 884 Doud, 120; 223 Mich NW v

(1923); People Burk, 485; Mich 213 NW 717 v 238 (1927); People Counts, 45; 27 v 318 Mich NW2d (1947); People 460; Sanford, (1978). NW2d subsequent Burk both considered

Doud and charge. giving specific giving a intent or not of required it, Burk ruled it but the later Doud appropriate. required Counts indi- nor neither rectly felonious assault considered holding of intoxication was evidence crime required negate Sanford, intent. admissible considering case, definition recent the most of assault which is basis felonious criminal " simple 'a criminal ruled that assault "is attempt to commit out from either an made places battery unlawful act which another or an receiving apprehension an immedi- reasonable ’ signifi- battery” ”, 460, 479. ate holding, obviously, is that the second of this cance kind of criminal assault focuses on whether put acts "in reasona- assaultee was defendant’s receiving an immediate bat- ble tery”, was, and, if he it would be immaterial bodily do or not the defendant intended to whether injury assaultee. light particularly interesting case in

Doud is a develop. Burk and Sanford as we shall both in Doud that Doud confronted critical facts were up boundary trying put fence, on what men Doud claimed was his ordering

property, by them report showing off and his revolver. The case continues: permitted testify fully "At trial defendant was purpose as to intent and claimed he entertained no his injury. though

to inflict claim was refuted Even such words, right acts, a to his demeanor and defendant had 407 Mich Opinion Williams, J. go jury to the what he to claimed have been his purpose. judge gave The trial the no instruction upon to intent, although requested the issue of defendant’s so, charged: do but " people say pointed gun 'The that he at Daven- port; such people say pointed gun and the that he under imported circumstances an intent to fire his (it gun people say off. The do not did that he intend to it), necessary they say prove is not if should but pointed gun he under such circumstances that Davenport grounds had reasonable believe that he off, pointed intended to fire it at and it guilty at Davenport was time, charged.’ then of the he offense assaulted, arising "While the fear one from reason- hurt, bodily able having tioned in some of the books as threatened another ability same, means and to inflict the is men- proper go evidence to jury, the upon governs we do not understand that fear such purpose of the intent or of an ac- cused under this statute. We think defendant was enti- following portion tled charge given: request to have the sixth his " 'As actually you to what his intention was must that, to, you determine if are able from evidence in case, considering did, said, what he what he 120, what he testifies to as his intent.’” 223 Mich 124- This Court granted reversed and new trial. Burk, Doud,

In defendant, as in was con- victed of requested felonious assault and had charge defendant, including convict you "[t]o * * * must find that did intend to [defendant] upon inflict harm bodily replied, him”. This Court "We think the objectionable instruction asked is it assumed that necessary was a ele- * ** ment of the If charged. offense defendant dangerous assaulted Foster with a weapon he would be guilty charged, regardless offense * * injure of his intent him 489. The conviction affirmed. Opinion Williams, J. specifically fact, In overrule Doud. not

Burk did it. But the Burk rule is refer to it did not even opposite diametrically the neces- the Doud rule on supersedes charging specific sity intent, Burk so of point. on that Doud interesting charge in Doud is trial court

But the charge point states of view. from another part: that gun the under such circumstances pointed "if he grounds reasonable Davenport had assaultee] [the off, pointed fire it and it was that he intended to

believe time, guilty is Davenport that then he at at 120, 124-125. charged.” 223 Mich offense — ruling charge anticipates the in Sanford This " simple "is made out from 'a criminal assault * * * places another an unlawful act which receiving apprehension of an immedi- reasonable ’ battery” 460, ”, 402 Mich 479. ate quoted above, in Doud said: this Court As assaulted, arising from reason- "While the fear of one hurt, by another apprehension bodily threatened able same, having ability to inflict is men- means and proper go to tioned in the of the books as evidence to some governs jury, do not understand that such fear we purpose of an ac- upon of the intent or 120, cused under this statute.” consequence, recognized As a rule it must be this Court in Doud as law as stated put existing merely is an assault not if the victim of what reasonable fear or doing changed, too, and Doud is defendant is has overruled here also. only line the rule

This leaves Counts out of specific of felonious intent is not an element in that case said: assault. It is true that this Court 407 Mich 196 Opinion Williams, J. information, as charged "The in the well as offense of which defendant was lesser and included offense assault], specific intent convicted involved [felonious Presumably testimony as an essential element. drinking indicating had was of- that defendant been bearing might legitimately fered have on for such condition, and on the reason or defendant’s mental testimony by the reasons for his conduct as disclosed in the case.” 318 Mich 47-48. the various witnesses However, indicate does an element issue whether direct issue in that case. attempt felonious was a were, hold that point, Even if it at this we supersedes. Burk-Sanford precedent conclusion, this is of interest supporting As Appeals, beginning People with v the Court of Johnson, 544; 202 NW2d 340 App Richard (1972), of Burk. The Court of has followed the rule said: Appeals Johnson "By language of the the clear [felonious assault] merely simple a assault committed

statute the crime is specifically dangerous weapon. While the statute intent, specific only types certain intent excludes necessary appear required that would to be is the simple assault. to constitute specific intent battery "Since assault and is not a drunkenness, by voluntary crime that is excused 750.82, supra, felonious assault as defined MCL dangerous weapon, but an assault committed with a to which felonious assault is not a intent crime voluntary is available.” the defense of intoxication 544,.546-547. App addition, proposed In it is noteworthy follow Michigan Jury Criminal Instructions rule, 17:4:01. Burk CJI People v Johnson Opinion Williams, J. Ring Application

VI. Johnson A. given by in- the trial court

The instruction jury as- the elements of felonious formed pertinent parts ways. First the in two sault jury: read to the were statute drawn, information is from which the "[T]he statute any provides [is]material as follows: as the same so far person pistol, gun, revolver, another with a who shall assault club, bar, knife, knuckles or other iron brass intending weapon dangerous but without to commit great intending to commit murder and without crime of guilty bodily than murder shall be deemed harm less felony.” Second, told: was also testimony you that Mr. from the "If are satisfied a re- an intentional assault with Johnson committed volver which is a dangerous weapon.” apprise sufficient to We find this instruction was necessary jury of the elements for felonious dangerous one, two, assault, i.e., assault; an with weapon. People Ring

B. v agreed court had The instruction that the trial give requires It "intent to do is in error. an bodily injury” mandatory as a element of felonious element of assault. A intent is not an only prosecution need show felonious assault. The general unlawful criminal intent to commit an necessary simple act assault. 407 Mich Ryan, J.

VII. Conclusion appeal granted in these cases to We leave spe- includes felonious assault determine whether spe- conclude that element. We cific intent as an of felonious assault. an element cific intent is not given by the trial Therefore, the instruction defining assault as an intentional court in Johnson We assault was sufficient. element of -felonious Appeals in Johnson. affirm the Court of has However, the trial court the instruction requiring Ring agreed give intent an in injure reverse the trial court’s We is erroneous. give and remand for instruction decision to opinion. with this instructions consistent J., C.J., Moody, Jr., con- Coleman, Blair Williams, curred with agree reason- with Justice Levin’s J. We

Ryan, only upon ing disposing issue which leave of the granted appeal case—whether felo- this to nious assault harm as an bodily specific to do

includes element. disagree, however, Justice read- We Levin’s

ing Sanford, 402 of this Court’s (1978), regarding the defini- 460; 265 NW2d 1 that in and his conclusion tion of criminal assault Michigan unlawfully putting in reasona- another injury In is not a crime. ble presently seated Sanfordfour members accepted adopted reasoning Court simple crim- that a conclusion of Justice Williams attempt "is made out from either inal assault People 229 v Opinion Ryan, J. battery or an unlawful act to commit which places apprehension in another reasonable of re- ceiving battery”.1 460, an immediate 402 Mich 479. pronouncement not this

That was Court’s first on the matter. This Court said as much (1910). Carlson, 426; 125 361 NW suggestion my In contrast brother’s adopted Sanford Justice Williams a definition of criminal assault different from that which was merely clarify- Carlson, noted in ing we read Sanford as restating the Carlson observation attempted there are two kinds of criminal assault — battery putting in fear. admittedly something Carlson,

In less than clarity, model this Court stated there are two which, definitions of criminal assault "taken to- gether, may necessary be said to include all ele- ments”: " offer, any attempt 'An assault is with force or

violence, corporal another, to do a hurt to whether from wantonness, malice or with such circumstances as de- note, time, it, at the coupled intention to do with a present ability carry such intention into effect.’ 3 Cyc, p 1020.” " any force, 'An physical partly unlawful motion, fully put of creating a reasonable injury being.’ immediate Bishop a human 2 on (7th ed), 426, Criminal Law 23.” 160 Mich § quoting Sanford,

In while the definitions of crim- they inal assault as were stated in Perkins on (2d ed), p Criminal Law we noted that Carlson acknowledged the existence of at least two forms of criminal assault: signed by Justice Williams’ Chief Justice Coleman Moody. Fitzgerald separate opinion

and Justice concurred in the result reached In a Justice and I disposi Justice Williams and the tion of the assault issue. Ryan, the Cyclopedia the either hold that "We also adequate definition is an Bishop a form of assault and the in Carlson definition in forms are actionable that both 2 Sanford, supra, 479. laws.” criminal conceding suggests My that even further brother arguendo the existence of established that Carlson question, in here assault forms of criminal the two viability set forth there two definitions of the the intervening by deci- this Court’s undermined was People 120, Doud, 125; 193 NW 223 Mich sion in v (1923), Court held that in Doud the and that 884 proof be assault cannot felonious established injury. apprehension putting another conduct Ring therefrom, concludes, that defendants He charged pre-Sanford mis- Johnson, who were menacing type conduct, be convicted cannot the Carlson and San- of which of criminal spoke. opinions ford disagree.

We only with the was concerned in Doud The Court challenged jury instructions correctness of inquiry away the intent of from which shifted upon the belief focused instead defendant and the or fear of to fire intended the defendant the victim properly weapon him.3 That Court at 2 misinterpreted the Carlson Appeals had in Sanford The Court requirement that "the conjunctive to include definition in the convic put harm” before a fear of immediate victim be in reasonable they had been lie. We concluded of criminal assault would tion disjunctive stand alone. definition could in the and that either framed 101, Sanford, App Sanford, supra, citing People v See (1975). 105; 237 201 NW2d fully testify his permitted as to trial defendant was "At the injury. purpose Even no to inflict claimed he entertained intent and words, acts, though his demeanor claim was refuted such right go jury claimed to have with what he to the defendant had upon judge gave purpose. no instruction The trial been his the issue of defendant’s so, intent, requested although to do but charged: " Davenport; pointed gun people say at 'The that he gun say pointed circumstances people under such that he Ryan, not understand that such

concluded that "we do governs upon of the intent or fear purpose of an accused under this statute”. added.) (Emphasis Court The Doud 120, 125. purpose say that the accused’s intent or did not put of an the victim reasonable support battery immediate would an assault conviction. jury in Johnson was instructed that attempted if he defendant could be convicted injure the victim and the assault was "inten- tional”, there no instruction that defen- but alternatively may dant be convicted of intention- putting appre- ally the victim reasonable fear or imported did intend to gun people say an intent to fire his off. The do not that he (it it), necessary they say prove that it is not should pointed gun Davenport but if he under such circumstances that had off, grounds reasonable was to believe that he intended to fire it and it time, Davenport pointed guilty at at the then he is of the offense charged.’ assaulted, arising apprehen- "While the fear of one from reasonable hurt, bodily by having ability sion of to inflict the threatened another means and same, proper is mentioned in some of the books as go jury, evidence to to the we do not understand that such fear governs upon purpose intent or of the of an accused under this statute. We think defendant was entitled to have the following portion request charge given: of his sixth to " that, actually you 'As to what his intention if must determine to, case, you considering are able from the he evidence in the what ” did, said, Doud, what he and what he testifies to as his intent.’ supra, 124-125. 4 Doud, requested jury In the defendant that the be instructed that: case, "Applying you this definition to the facts in this I instruct pointing distance, gun shooting that a loaded at another within if the person pointing not an assault intention to do gun it, discharge But it intends to is an assault. point gun to a loaded at another if there is no bodily harm.” judge request. appeal, The trial denied defendant’s the defen- On give requested dant claimed that the failure to his instruction was a (see Michigan Supreme reversible error Court and Briefs Records April Term, Brief, 8), 1923], Appellant’s p Docket but [112-128 No requested this Court failure to did not refer to this instruction or hold that give Accordingly, it was reversible error. we conclude injure required Doud did in not hold that an intent to or batter is every criminal assault case. Levin, J. injury. The instruction immediate hension of an adequately respects: it failed in two was deficient require- specific jury intent to inform the neglected present the alternative to ment and assault. form of felonious Ring jurors instructed should be in specifically if he convicted could be

defendant they injure to victim, were not but intended to form of assault— on the alternative be instructed apprehension put anof victim in the intent battery. be instructed should immediate assault. of felonious on both forms juries summary, in of the cases each In the definitions on should be instructed before us along Sanford, awith in assault outlined either an there must be intent intent instruction put injure in the victim or an an immediate fear or reasonable battery. for a and remand reverse

We would court’s decision the trial trial and affirm new Ring for trial. and remand as modified J., J. Ryan,

Fitzgerald, concurred with (This dissenting opinion was written Levin, response Justice lead written to the subsequently added IX was Part Williams. concurring opinion response written response Ryan. the to X added in Part was Justice opinion.) memorandum prosecu- arising cases, out of consolidated

These jury assault, instruc- concern felonious tions for the common-law the mental element tions on statutory offense and the of assault offense felonious assault. people’s proofs at trial in Johnson at by Levin, Ring preliminary tended to examination

the pointed a in each case the defendant show that gun complainant no shot was fired.1 The at the but that there was insufficient do not claim defendants injure support finding of intent to a evidence they rather, intention and but, that had no such may instructed that must be it finds such intent. The instruction convict unless Ring Johnson; before trial was refused people judge agreed contend to so instruct. The injure not an element of assault is jury may convict if assault and that a or felonious it finds that the defendant injury. created granting issue, the orders as framed appeal, in- is felonious assault leave to "whether a intent as an element”. cludes

A i) felonious as- The lead declares delivering pizza complainant, who was to a motel In Johnson the room, pointed pistol was met outside the defendant. Defendant at pointing complainant him not to move. While the gun and ordered complainant attempted open door to the at defendant to force ten Defendant then told room. This went on for about minutes. right Complainant complainant "stay there”. remained in front of nearby the room while defendant walked out to a terrace. When again attempted gain defendant returned he entrance to the room. door, occupants open When the plainant refused to defendant told com trial; go. undisputed that he could facts were at These testify. defendant did not Ring, dispute preliminary In examina- while there was some at the facts, regarding particularly respect tion to whether the pointed toy gun complainant, presiding defendant or real at the shown, judge proof was "satisfied the rather clear and convinc- ing young anything testimony man know who doesn’t about here, guns VorenKamp, gun, found Mr. that this was a real which he him, pointed hurriedly”. Complainant that defendant had talking. had very at and which him to leave the scene caused preliminary examination had testified at the pointed gun at him and said he would do the police he A officer that defendant had told him that testified stated, pointed "[djon’t any toy gun complainant at come alone, my closer. Better me or else”. leave car 196 234 407 Mich Levin, J. Opinion the added ele- assault with sault is common-law ii) weapon, dangerous common- ment of use of a specific, general, crime, intent is a law assault iii) injure an element of assault or intent to is not iv) may assault, be committed an assault felonious injury by creating apprehension of a reasonable v) (menacing), "sufficient” in Johnson to it was of felonious assault was instruct that an element an "intentional assault”. opinion that intent

The lead rests its conclusion injure necessary element of assault is not can and that those offenses be felonious assault menacing, although no in- there is committed injure, statutory analysis and an on a tent Michigan analysis case law: of the 1) specific [felo- [is] intent written into "[N]o specific two forms of assault] nious section while particularly excluded”, and most other intent are specific "particularly define a in- assault sections legislative "[T]his tent”. Court should follow require specific intent for feloni- intent and not assault.” ous

2) only statute, "[t]he intent neces- Under sary general ["to intent commit an unlawful is the "controlling necessary for an assault”. The act”] People Burk, law, 485; 238 Mich 213 NW case v (1927); People Sanford, 460; Johnson, 42 v (1978); People Richard NW2d 1 v (1972), App 544; holds that 202 NW2d felonious as- is not an element of sault”.

B agree the ele- the lead We i) assault are those ments of felonious ii) assault, the added crime of common-law Levin, the assault is committed with element disagreement weapon. dangerous concerns Our assault. of common-law elements because We dissent

1) Although Legislature’s intent is control- agreement ling, it intended are in since we common-law assault com- assault be that felonious dangerous weapon, the meritorious mitted with a solely turns on the elements issue constructional offense. the common-law of question presented is whether the definition or crime of assault has been the common-law of Michigan expanded judicially to in- should be menacing injure. without intent clude 2) law, At the crime assault was common necessary attempted battery. of all A element attempts intention to commit another of- is an here, An of the other offense bat- fense. tery, element touching, injurious or offensive. a either crime of assault at com- Hence an element of the injuri- mon was an intention to touch either law ously offensively. or

3) necessary A the tort of civil as- element of injury. Those sault is reasonable expanded judicial jurisdictions deci- which have in- sion the definition of the crime of assault menacing (creating apprehension injury) clude recognizing generally have done so without crimi- distinction at common law between civil and Michigan, however, In nal assaults. that distinc- preserved. tion heretofore has been 4) construing Court, the feloni- This when first People Doud, ous assault statute in (1923), upon 120; 193 full consideration of NW jurisdictions case law in this and other question on whether an assault can be committed menacing (creating apprehension injury), con- Levin, J. eluded that defendant’s intention was control- ling and that must be instructed that it cannot it convict unless concludes that the defen- ("inflict corporal injury” dant intended "to do an hurt”), menacing injure and that without intent to does not out the make offense.

5) opinion Neither Burk nor the lead in Sanford speaks "specific at all of intent”. holding

Neither even adverts to Doud’s menacing party assault; is not no in either incorrectly case contended that Doud was decided sought overruling. its whether the by menacing, crime of assault can be committed presented, argued Doud, decided discussed in question differently. was not purport Burk, nor did to decide that completed battery Burk, In charged injure assault; was as an intent to requisite battery element because crime of recklessly negligently. can be committed or opinion The dictum in the lead Sanford is not "controlling”, nor is the decision of the Court of Appeals in Richard Johnson.

6) gen- The characterization of an offense as a specific important crime, eral or intent while purposes, generally some is at best a conclusion derived from the It elements of the offense. is therefore circular to decide what are based on the conclusion that those elements

the offense is a general specific or intent crime. menacing

7) Even if is to be an alternate means committing the crimes of assault and felonious assault, it does not follow there is no particular jurisdic- mental In element. those menacing tions where at common law nate means of is an alter- committing offense, an intent to threaten element of the offense. There thus injure/touch must be either an intent offen- Opinion by Levin, J. sively appears or an intent to threaten. It to be unprecedented any jurisdiction to hold that the common-law crime of assault can be committed the intentional commission of an "unlawful act” regard without to whether that act is committed injure/touch offensively with intent to or intent to threaten.

8) Instructing jury, Johnson, as in that it must find an "intentional assault” does not differentiate between intent to commit an act from which an injure inference of or, intent material, if may injure drawn, threaten be and intent so to threaten. The not, instruction therefore, "suffi- refusing cient”. The error in to instruct in accor- dance with the cannot, law then extant on the (see 1), facts fn be said to have been harmless.

9) changed Heretofore, when this Court has applied offense, definition of a criminal it has its ruling prospectively. Ring new Johnson and are entitled to have their cases tried under the defini- tions of the crimes of assault and felonious assault prior extant when their committed, offenses were to the Sanford dictum.

I A) The lead concludes based on verbal analysis chapter penal of the assault code B) text, sentence in a that assault with a dangerous weapon general is a crime, intent from which it injure/ further concludes that offensively touch is not an element of the offense.

A It reasons that because felonious assault is 196 407 Levin, J. specific intent2 3and two forms of defined to exclude although specific stated, most other no is intent specific particularly in- define a assault sections tent, specific Legislature there did intend that be a not argued It is felonious assault. perad- Legislature beyond that "demonstrates particular it intends a offense venture that when specific require to, intent, it knows how to does, Legisla- specific require The intent”. specific intent "demon- ture’s failure to state of felonious assault does the case strates specific require a intent”. not intend to categori- argument that because a assumes specific in certain as- intent has been stated cal specific particular generic in- sault sections a stated, consider, in and fails to tent would also be statutory analysis, mental element its crime of assault. common-law Legisla- agree lead that the with the We felonious assault be com- ture intended that awith dan- mon-law crime of assault committed particular gerous weapon. mental A (intent injure) required for commis- is element Legislature the common-law offense. sion of incorporates it uses the that mental element when explicitly term "assault”.8 Its failure to state does not eliminate mental element in statute generally "intent to” it as an element. There element of common-law offenses. requisite expect intent, or to find a

One does any element, common-law offense indeed (although are some- in the statute elements stated negativing purpose Legislature’s Court has said that This crime of intent was "to save the declared the two excluded forms Doud, falling from within other defined felonies”. (1923). 120, 122; 193 NW 24, infra, concerning assaults. See fn conditional People 239 v Opinion Levin, J. stated),

times but looks to the common law for a complete definition.

Among the common-law offenses for which no penal mental element stated code for specific particular which there is or mental (malice aforethought), element are murder4 tary volun- (intent kill), to rob- larceny,6 manslaughter5 breaking entering and and intent to bery,7 (wrongful taking commit larceny8 deprive with intent property permanently). the owner of his specific particular No mental element or intent attempt penal code9 is stated in the sections yet necessary it is well settled that a element attempt any to commit another offense is an intention to commit that offense.10 Although "specific no intent” is stated in the pertinent penal code, sections of the this Court has held that untary entering)12 argument intoxication, are, for larceny based on the ^[11] purposes specific burglary (breaking of the defense of vol Legislature’s crimes.13 failure required to restate the "intent to” for commission jurispru- of an assault is thus at odds with dence. 750.316; MCL MSA 28.548. 750.321; MCL MSA 28.553. 750.356; MCL MSA 28.588. 750.529, 750.530; 28.797, MCL MSA 28.798. 750.110; MCL MSA 28.305. 750.91, 750.92; 28.286, MCL MSA 28.287. Bauer, People 659, 661; (1921); See v 216 Mich NW People Coleman, 268, 276, 278; (1957); v 350 Mich 86 NW2d 281 (2d Gillespie, Michigan ed), 1071, 1016; p Criminal Law & Procedure § Scott, Law, 59, p LaFave & Criminal § Walker, accord, Scott, (1878); v 38 Mich 156 LaFave &

supra, 45, p 343. § (1915). People Eggleston, 510; v 186 Mich 152 NW 944 has, Appeals authority, The Court of on that reached the same regard robbery. People Kelley, App conclusion with 619; (1970). 176 NW2d 435 407 Mich 196 Levin, particular intents delineation categorical differentiating assaults evidences penal- legislative provide purpose differential that otherwise ties for different kinds assaults purpose penalty, not a would all entail the same change the undifferentiated mental element of assault. offense of common-law incorporating suggest that all statutes We do not require of the offense an an element assault as bodily Legis- injury. When intention to commit frightening is, or is to be lature indicates assault, as, it is: treated an violence, shall, by or force "Any person who fear, rob, feloniously steal and putting assault or in another, presence, any in person or his take from the money of subject may be the of property which or other dangerous being armed with a robber not larceny, such felony, punishable by weapon, guilty be a shall prison not more than 15 imprisonment in the state (emphasis supplied).14 750.530; MSA years.” 28.798 MCL B support text relied on to sentence a "[generally in the lead assertion interpreted dangerous weapon is as awith general supplemented in the is a crime” juris- pocket part by those "[i]n statement injury that an intent to inflict dictions which hold is simple the crime of essential element of example legislative purpose that the victim’s state Another of a rob, is with intent of mind be determinative the assault shall armed statute: any "Any being dangerous weapon, person, or article armed with a person reason- or in a manner so assaulted used fashioned lead ably dangerous weapon, who assault another it to be a shall believe guilty felony, punishable shall be with intent to rob and steal life, years.” any imprisonment prison or for term state 750.89; (emphasis supplied). MCL MSA 28.284 Opinion by Levin, J. necessarily

assault, follows that such intent is required for the offense of assault with a also deadly dangerous weapon”.15 That

or statement physical upon harm Anno: Intent to do based deadly of crime of assault with essential element dangerous weapon, 92 ALR2d 635, 637, appears from the annotation that whether It physical bodily injury” harm or "an intent to do element of the crime of assault with a was an dangerous weapon, jurisdictions deadly those statutorily not defined the crime of which had generally jurisdic- assault, turned on whether the (see expanded the common-law definition tion had infra) II, Part menacing (creating of the crime of assault to include injury)

an majority jurisdictions In a clear assaults. listed16 an intent injury physical bodily to do harm or say was an element. That is that the by counting noses, should be decided but adopted in it does indicate that prevailed the view Doud jurisdic- in a substantial number of other tions.

C agree opinion can "[t]he One with the lead that Legislature punish obvious intent of the is to more severely accompanied by those assaults some de- gree aggravation, injury, i.e., serious use of a 15 (1979 Anderson, 1 Wharton’s Criminal Law & Procedure Pocket Part), 361, p 159. § 16 physical We note that the Anno: Intent to do harm as essential deadly dangerous weapon, element of crime of assault with 92 635, 636, following limiting ALR2d contains the statement: "* * * attempt No has been to collect numerous cases made including which have defined the offenses here considered without harm, specific physical element of intent to do in which no but necessary, contention was raised or dealt with that such intent was although may support arguably such cases the contention that an physical necessary intent to do harm is not a of the crime.” element 407 Mich Opinion by Levin, dangerous weapon specific or a intent” without agreeing implication enlarged with the that penalty may imposed simply danger- be because weapon ous was used. acknowledges opinion

As in the the lead next sentence, accompanied established, "the basic assault must be aggravating

by the circumstances”. question approached, However the is neces- sary to constitutes "the basic as- determine what again, which, sault” turns on the common-law Statutory analysis definition. not does assist determining constitutes "the basic assault” what long agree, maintains, as the lead as we that it is the common-law crime of assault. noteworthy

In this connection it is that in hold- ing bodily do harm was element acknowledged assault, Doud felonious legislative penalties purpose was to increase the dangerous when an is committed with a weapon but nevertheless concluded that such a purpose from did eliminate consideration purpose”.17 the actor’s "intent

II At common law "a criminal assault was an attempt battery only”.18 to commit a and that "An attempt any requires to commit crime crime; intent to commit that and so assault requires attempted-battery sort an intent to com- 17 "Evidently feeling penalty simple for assault did not dangerous weapon legisla- employed meet occasions where a greater penalty aggravated did not ture fixed a such assaults but purpose, every intent or case of eliminate the involved Doud, supra, p (emphasis assault of a criminal nature.” supplied). (2d Perkins, ed), 114; Marshall, p of Criminal Law Clark & Law (7th ed), 10.15, p Crime 720. § Levin, J. physical battery, i.e., to cause an intent

mit a injury to the victim.”19 judicial many jurisdictions, statute or

In causing concept decision, reasonable the tort physical injury apprehension incorporated is actionable20 was of of the crime of into the definition scope jurisdictions In those of the assault. [emphasis origi- in "in addition to crime includes nal] tery to) (not attempted-bat- as an alternative concept type assault, the tort civil one, assault, when with intent which is committed a reasonable of immediate to cause harm), (though bodily not to inflict such does harm apprehension”.21 act which causes such some enlargement by A text writer states that judicial jurisdictions scope in decision some menacing to include of the crime alternative assault committing means of the crime "did not come about as a result of a conscious effort to enlarge consequence scope offense, of a criminal but as a

of the confusion caused the use of represent the same word to two different con- cepts”.22 meaning one The word "assault” has meaning law, law, the criminal another in tort usage. meanings ordinary and still other Scott, 82, 610; Marshall, supra, p supra, LaFave & Clark & § 10.15, 725; Perkins, p supra, p 114. § 20"(1) subject liability An actor is another for if "(a) intending he acts to cause a harmful or offensive contact with person person, apprehen- of the other or a third or an imminent contact, sion of such a "(b) thereby put apprehension. the other is in such imminent “(2) An action which is not done with the intention stated a) (1, Subsection apprehension does not make the actor liable to the other for an thereby although caused the act involves an unreasona- and, therefore, causing negligent ble risk of would be or reckless if Torts, 2d, 21, bodily p harm.” 1 Restatement 37. § the risk threatened (4th Prosser, ed), 10, James, Similarly, p 37; Harper see Torts & § Torts, 3.5, See, also, Richter, p 396; Law 221. Tinkler v § (1940). 295 NW 201 Scott, supra, p LaFave & § 22Perkins, supra, p 117. 244 407 Mich 196 Opinion by Levin, Michigan

In the distinction between the crimi carefully nal and civil law definitions was observed preserved judge in Doud. The trial in had determining structed that whether a felonious gov assault had been committed "defendant’s acts concluding erned and not his secret intention”. In erroneous, that the instruction was this Court said purpose that an assault "involves an intent or corporal inflict a hurt "[t]he another”. While injury may usually intent to do an be found and found accused”, from the acts of the "[t]he defen liberty purpose, dant, however, is at to tell his though by every even act, contradicted his go jury. have the same to the Such is the law of simple though assault”. Even the defendant’s purpose claim that "he entertained no to inflict injury” acts, "was refuted his demeanor and right go words, defendant had a to the with purpose” People what he claimed to have been his supra, pp Doud, 123, v prosecutor argued Bishop, had Crimi- (7th ed), People § 23,

nal Law Carlson, cited in v (1910), authority 426; 160 Mich 125 NW 361 merely for the view that if defendant created a apprehension bodily injury reasonable on com- plainant’s part this was sufficient to constitute a rejected criminal assault. Doud confronted and argument: this assaulted,

"While the arising fear of one from reason- hurt, able bodily threatened another having ability same, means and is men- to inflict tioned in some of the proper go the books as evidence to

jury, we do not governs upon understand that fear purpose of the intent or of an accused (em- People Doud, under this supra, p statute.” v phasis supplied). v Levin, J. People Lilley,

Doud is consistent (1880), 524-525; where the Court 5 NW was an to commit violence indicated judge had instructed The trial of assault. element to "in- actions were sufficient if defendant’s ordinary that he firmness to believe a man of duce is in receiving danger such threat- immediate guilty injury” of an the defendant would be ened assault. quate, inade- This Court deemed the instruction complainant concluding if the that even injury, apprehended defendant must neverthe- present ability carry possessed a out have less did to commit violence” and whether he "an intent proper question jury for the under instruc- was a tions. People Counts, 45; 27 318 Mich NW2d

In v (1947), sufficient Court said that there was the jury which the could infer "intent from evidence injure”. supra, People Counts, Carlson, In v the sufficiency of evi- issue was not instructions but concept applying Court, of condi- dence. tional assault23 (a threat a show of force and condition), concluded that there was an unlawful sufficient evidence jury

from which the could infer requisite Doud reiterated elements of assault. declaring concept, with a show of that force on an unlawful condition threats sufficient

constitute jury evidence from which the could infer an intent injure.24 question sufficiency While the of of evidence to 23 "Where, case, threatened, coupled with an as in this an assault is condition, question whether the acts unlawful to be decided is jury done are sufficient to he submitted to a to find an assault as a Carlson, 426, 429; question fact.” 125 NW 361 (1910) (emphasis supplied). concept A text states the of conditional assault thus: attempted battery, may point defined in one "With assault terms another, face, threat, gun in his with a a loaded at or flourish a knife 407 Mich 196 Levin, J. jury go jury of what and the to the related, reason than if for no other are must find offense, of the the elements because involve both sufficiency not conclude the does mere matter. The mere reassessment ing of evidence

jury of more than a consists function regard- judge’s decision sufficiency prima of the evidence. facie persuaded by jury it is whether must determine guilt beyond a reason- defendant’s such evidence of able Accordingly, like Counts and decisions doubt. only sufficiency of —which concern Carlson of the ade- there is no issue and where evidence quacy guid- often of little of the instructions —are may an instructional indeed obscure ance on and phrased in terms of sufficien- issue; an instruction stating prosecutor merely cy evidence, what the stating prove must what must find, question but concerning lay jury instruct a does not it. before

Ill separately, seriatim did not Burk and Sanford holdings Doud’s overrule and sub silentio bodily injury element of was an intent assault to cause assault, and, hence, and that of felonious apprehen- by proof made out the sion is not offense injury. A physical proofs Burk an actual The showed out, injure carry to the other unless latter which he intends to doing obliged something legally from to do or refrains he is not does A, gun something legally where with loaded he is entitled to do—as B, you you you say again’ if pointed, or 'I’ll fire 'I’ll shoot if tells attempted- your hands.’ It is no defense to assault don’t raise acceding injury by battery to the victim can and does avoid sort that condition; or, way, putting the re- it another other’s unlawful the quired accompanies injure negatived which such a condition intent to Scott, supra, threat.” LaFave & the defendant’s act and 82, p 613. § 247 Levin, J. injury. Completed infrequently batteries were not charged as assaults as well as assault and batteri injure es,25 and in such cases intent was not a necessary Negligent element of the offense. causing injury reckless acts or mere unlawful touching may battery.26 constitute a disputed factual issue was whether Burk Foster, had in fact struck not whether he intended days. him. to strike Burk had been sentenced prosecutor appeal challenge did not on cite or injure Doud or assert was not an but, rather, element of the offense there was no reversible error.27

B Michigan In its discussion of case law the lead opinion Lilley, in Sanford cited Carlson and Doud but made no Burk; reference whatsoever opinion claim in the lead in the instant cases that part holding Burk overruled a of the Doud was not opinion advanced in the lead in Sanford.

Sanford was not a case of felonious assault but of assault with intent to rob. The declaration in opinion the lead in Sanford that the common-law offense of assault can be committed either an attempted battery appre- or creation of reasonable injury necessary hension of was not to decision. No signed by majority of the Court. 25Perkins, 115-116; Scott, 80, supra, pp supra, p 603; LaFave & § Wharton, 229, supra, p 676. § 26Perkins, pp 129-130; supra, Scott, 81, supra, pp LaFave & 605- § 606. testimony "When the case is reviewed connection with .of charges explained these it is submitted that the law was to the say with sufficient clearness so that the court should not there is (138- Michigan Supreme reversible error.” Court Records and Briefs Term, January 1927), Brief, Appellee’s p Docket No. 407 Mich 196 Levin, in nor Burk was cited either the Neither Doud opinion prosecutor’s brief. The lead defendant’s or in made no reference whatsoever Sanford Doud’s felonious assault is not conclusion showing apprehension injury established did not seek to overrule

it. The issue in Sanford was whether assault with attempted robbery not armed28 and rob unarmed29 are identical crimes. The decision that they are not and a reason therefor is there stated opinion. in the Three and in fn 1 of the lead conclusion signed opinion; two Justices concurred agreed disposition in its result and with the of that disposition issue; others concurred in the two separate opinion. that issue in a opinion, heavily Part II of the Sanford lead opinion case, relied in the lead in the instant on any but, rather, did not deal with issue in Sanford expressed disagreement Appeals with the Court of statement that creation of a reasonable fear of necessary injury immediate was a element of the opinion in crime of assault. The lead Sanford pointed correctly out that while that is rule cases, civil mean- the word has a different ing in the criminal law: "Traditionally, represented 'the word "assault” entirely concept different in criminal law than did (2d ed),

the law of torts.’ Perkins on Law Criminal Assault, p consequence, dependence 114. As a on a civil gives Ap- support law definition peals position.” little to the Court of Sanford, People supra, p v might lead Sanford well have stopped there. than There was no need to do more Appeals correct the Court of misstatement 750.88; MCL MSA 28.283. 750.530; 750.92; MCL MSA 28.287. 28.798. MCL MSA Opinion by Levin, J. (a apprehension injury necessary of of creation assault) necessary the tort a element of of was also the element of crime of assault. There was no need apprehension to consider whether creation of an of committing injury is an alternative manner of the crime of assault. opinion on, however, in

The lead Sanford went exegesis attempt to an the law of of the crime of adversary presentation of assault without benefit any on that and without to do need so opinion Ap- either peals correct the of to the Court of question presented. any recog- or to decide It correctly Bishop nized that the reference to in "ambiguous”, ignored Carlson was holding rejecting apprehension but Doud’s injury

of as an committing means alternative of the crime of as- adopted summary sault, and Perkins’ the of alter- recognition native kinds of without assaults of his jurisdictions adopted by caveat that those that had judicial part injury decision of by making the criminal law definition had done so precisely the same error for which it chided the Appeals failing distinguish Court of to between — the tort law and criminal law definitions of as- sault. opinion

In instant cases the lead dismisses (a opinion statements of the Court in Counts case), ground felonious not on that does appear they that concerned "a direct issue in case”, that but elevates the dictum lead (not case) opinion in Sanford a felonious assault to "holding”, "ruling”, "controlling a case law” and "superseding” Doud. gives

The lead in the instant case no injure reason for its conclusion that is not an element the offense other than Burk part holding one overruled of the Doud and San- 407 Levin, overruling reason such No ford another. pur- case, neither of which stated either was ported only intimation of a Doud. to overrule rule such in a is is Sanford reason in jurisdictions.30 majority of majority juris- the rule is Whether obliged give a not,31 this Court dictions doing it for others are than that better reason overruling adoption law a decision rule of of new nearly contemporaneous the the Court, of enactment guided statute, which has century. disposition for more than half a of cases Michigan proposed commentary commentary Jury Instructions,32 Criminal 30 infra, 52, 31, accompanying fn see 51 and and See infra. But fns definition, statutory in most as a of which indicate that result text offenses, separately jurisdictions menacing separate are assault dangerous weapon, menacing, deadly punishable, a or even with felony. not, jurisdictions, punished majority those as a in a of is 31 say jurisdic "majority” of that a Perkins do LaFave & Scott and apprehension injury is an that creation of of tions have declared alternative means of They committing of cite as the crime assault. Code, authority commentary Draft to Model Penal Tentative the the not, however, 9, 1959, commentary §201.10, p does 83. That No support so jurisdictions which have done its list statement judicial decision. 141-142, pp appendix commentary, indicates that when to the An (1959) published commentary prepared the of crime was or the statutorily jurisdictions and in 10 32 assault was defined jurisdictions require "to commit so an intent defined as injury”. violent infra, indicating most that since that time See fns 51 and jurisdictions statutorily the offense. have now defined Anno, concerning appears supra, assault with from an As the (see text, supra), accompanying deadly the dangerous weapon fn 16 and jurisdictions the majority context of which considered issue bodily required intent to inflict the common-law definition of injury. 32 attempted types two of criminal assault: are distinct "There battery apprehension of battery type and the intentional creation of majority recognized of type. in the these as an assault Both of are minority jurisdictions, rejected by view but the second is ” (Ann Michigan. Michigan Jury Insti Arbor: 2 Criminal Instructions Education), Commentary, p (emphasis Continuing Legal 17-26 of tute supplied). v Levin, Michigan proposed

the Gillespie’s revised criminal code33and Michigan treatise34 are in accord that recognized only attempted battery type has apprehension and not the creation of injury type of assault.

IV general The characterization of an offense as a important crime, or purposes, while for some generally

is at best a conclusion derived from the elements of the offense. It is therefore circular to decide what those elements are based general on the conclusion that the offense is a specific intent crime. says

The lead in the instant cases simple "acknowledged criminal assault as a Michigan "It is not clear under case law whether the several being 'assault with intent’ statutes cover infliction of the fear of Carlson, [People 426; victim of a criminal act. In one case (1910)], Supreme rejected 125 NW 361 Court defendant’s conten physical tion that a accompanied by threat to use violence not in fact physical contact could not constitute an assault with intent to commit rape, actual find an intent to might and held that such an assault be committed without an Since, however, touching. the Court felt the could in fact rape, necessarily authority the case is not for the proposition creating receiving physi serious injury assault; logic cal constitutes an of statements in other cases ” suggests attempt purpose probably required. that an or Michigan to batter is Special Committee of the State Bar for the Revision of the Jurisprudence, Criminal Code and Committee on Criminal Bar State (Final Michigan, Michigan Draft, Septem Revised Criminal Code ber, 1967),p (emphasis supplied). expressly negatives "While the statute [felonious certain assault] question felonious intents this does not eliminate the of criminal definitions, practically carry intent. An assault under all must on the attempt face of its attendant circumstances offer or with force or corporal violence to do hurt to another. This involves an intent or * * * purpose corporal to inflict hurt to another. While of the fear assaulted, arising one bodily from reasonable of harm by having same, ability threatened another means and to inflict the is proper go jury, mentioned in some books as evidence to to the such govern upon purpose fear does not of the intent or of an Gillespie, supra, p (emphasis accused under the supplied). 2 statute.” 988 § 407 Mich 196 252 by Levin, general intoxica- intent crime” "in relation to the citing People Comstock, 115 Mich defense”, v tion (1897), where, 305, 312; 73 245 in a case NW banking concerning law element for a mental violation, in dictum that "an the court stated voluntary battery and is not excused assault drunkenness”. (Emphasis supplied.) "Assault and battery” of an actual bat- means the commission tery. & indicates that the Comstock LaFave Scott battery correct "since can be committed dictum is only physical of an intent to do act not striking (which person can the other intoxication any negative) also, intent but without such striking; by recklessly strike, and recklessness can- weight authority, negatived by not, be intoxication”.35 (in battery) here, which, there was no

Counts specific is a intent felonious assault stated crime is a de- and indicated that intoxication fense.36 general kinds of identifies four

Fletcher specific Hall states: three kinds of intent.37 resulting uses current confusion from diverse "The aggravated 'general efforts intent’ dubious 'specific La- intent.’”38 to differentiate that from best to Fave & Scott concludes would be general murky abandon distinction between and fre- intent which does not assist quently analysis: avoids 35 Scott, supra, 45, p LaFave & 344. § 36 Johnson, App 544; People 340 Mich 202 NW2d v Richard 42 (1972), "controlling opinion People case characterized Court as Counts, 45;

law”, 27 NW2d made no reference to v Comstock, (1947), authority on the concluded (1897), 305; is not 73 NW 245 the defense of intoxication prosecution. in a felonious assault available concerning presented in the defense of intoxication is No issue instant case. Law, 6.5.6, Fletcher, Rethinking p 453. Criminal § (2d Hall, ed), p Principles of Criminal Law General 253 Opinion Levin, J. conclusion, better, it is

"By way may be said considering effect when voluntary defendant’s upon liability, intoxication his criminal stay away misleading concepts general from those intent and ask, specific first, intent. Instead one should what intent (or knowledge) any if does the crime in re- then, quire; and if requires the crime some intent (knowledge), did the defendant in fact entertain such an (or, intent did he in fact know what requires the crime know).” Scott, him Law, LaFave & §45, Criminal p 344.

V menacing Even if is to be an alternate means of committing assault, assault and felonious it does particular not follow that there is no jurisdictions mental In element. those where at menacing common law committing is an alternate means of offense, an intent to threaten is an element of the offense. There thus must be either injure/touch offensively an intent or an intent to threaten. attempted battery

LaFave & Scott states that "requires battery, assault an intent to commit a physical i.e., injury an intent to cause to the creating apprehen- victim”,39 and that reasonable injury requires sion of assault "an actual intention to cause unless there exists the mor- ally bodily worse intention to cause harm”.40 Per- explained kins states: "As one [Hall] writer after research, exhaustive 'there can be no assault physical injury [emphasis original], without un- [emphasis supplied] less there was an intention apprehension,’ inflict harm or at least to cause but Scott, supra, p LaFave & 610. § 40 Id., p Levin, injurious required no such battery].”41 [i.e., jurisdictions at where decisions those assault can be commit- law the crime of

common uniformly menacing that an intention hold ted injury apprehension of is an element to an create unprecedented appears to to be of offense.42It conclude otherwise. battery, like

Further, "[a]ssault, civil is since regarded tort it is neces- as intentional because an sary to either have intended the defendant battery plaintiff cause in the an or to commit apprehension considering battery”,43 ironic, it would of a be expansion jurisdic- in some scope to include of the crime of assault tions of apprehension largely injury came about

of assaults concept, by adoption if the mental that tort law of required required for tort was not element ordaining justification for There is no the crime. culpable mental for criminal assault state less assault.44 than for tortious 41Perkins, supra, p 130. Motorist, Hall, Battery L J Crim & the Reckless 31 Assault and 133, (1940), development Criminology analyzes the of the doctrine 158 actually committng injurious does not an assault that a conviction of require negligence. injure only to recklessness or but criminal scope slight expansion respect of criminal to this With even concluded, they "[wjith legislatures active are as assault Hall today, position judge to of the in a than most courts better citizens, judicial their restraint seems wiser than ever”. desires of 42 (1872); Baker, White, v 407 v Commonwealth 110 Mass State See Hazen, (1897); 733; 275; 165 P2d 234 20 (1946); 38 A State v 160 Kan RI 653 (1959); Wilson, 575; Ball v United v 218 Or 346 P2d 115 State (Del (CA Paxson, 9, States, 1906); v 99 A Ct Gen F 32 State 46 147 (DC 202, App, States, Sess, 1916);Anthony 361 Ct v United A2d 206 (1962). 135; 1976); Slaney, 185 NE2d 919 v 345 Mass Commonwealth 3.5, supra. James, p Similarly, Harper supra, & see fn § scope undertaking expand crime assault the to In issues, pertinent to of which are confront several some Court will instant cases. charged split authority whether when a defendant There is a put actually creating apprehension injury be the victim need with Opinion by Levin, J. VI Johnson, Instructing in jury, as must find an "intentional assault” does not differentiate between intent to commit act from which an injure or, material, of intent if inference drawn, threaten, may be and intent to injure or not, therefore, threaten. instruction was "sufficient”. The error in refusing to instruct cannot, accordance with the law then extant on (see 1), fn the facts be said have been harmless. charged jury: judge attempt "An is an assault or offer with force and violence to harm another. you

"If are testimony satisfied from the that Mr. Johnson committed an intentional a re- dangerous weapon produce volver which is a likely to great bodily injury accurately or is one more described attempted the manner which it is be used to great bodily commit harm.”

The defendant sought was refused an in- struction that jury may convict unless it finds he that intended inflict physical injury. prosecutor Although now maintains creat- ing an apprehension of injury is sufficient for conviction, instructed, the jury was not so no doubt because that was not then the law. in fear or it whether is sufficient that a reasonable man would be in majority actually apprehensive fear. The hold that the victim need be (CA receiving bodily States, 9, injury. of v See Price United 156 F 950 1907); White, Deso, (1872); Commonwealth v 110 Mass 407 State v 110 1; (1938); 725; Blankenship State, Vt 1 A2d 710 v 95 130 Miss So 81 (1923); 598; Barry, (1912); Hazen, State v 45 124 Mont P 775 State v Wilson, supra; 575; (1959); fn 42 State v 346 218 Or P2d 115 State v 490; State,

Sawyer, App (1976); 28 NC 221 518 v SE2d Dawson 338 So (Fla (CA 1976); 539, App, Bell, 7, 2d 242 United States v 505 541 F2d (1975). 1974), 964; 1357; cert 420 den US 95 S Ct 43 L Ed A 2d few cases seem to hold that the standard be whether a should apprehensive injury. Anthony reasonable man would be v United (DC States, 1976); App, Slaney, 361 A2d Ct v Commonwealth Bell, supra. supra. fn 42 But see United States 407 Levin, J. given reference to the makes no

The instruction repeats simply It Haw- defendant’s mental state. (1 Hawkins, definition Pleas of kins’ timeworn 1) has 62, § ch which now different [6th ed], Crown meanings and the true mean- in the several states appeals. engendered ing text, A these of which analyzing definition, states: Hawkins’ offer,’ phraseology, 'attempt or disjunctive

"The readers ascribe to because modern troublesome meaning. This criminal-law 'attempt’ its technical word reading the balance of approach tends toward exclusionary 'or’ which containing an phrase as one alternative, appearing as results though 'offer’ having qualita- different referred behavior requisite than an quantitative aspects tive * * * employed by Haw- attempt. But the illustrations suggest that would and could lead to kins physical behavior description mani- with the victim. His

contact pattern punishable describing struggle fests a physical produced has not actual harm. behavior which These do examples are consonant with an 'offer’ to also text corporal to another. Some modern writers hurt attempt corporal to inflict apparent define assault as another, ignore appearing completely on harm thus part on the issue criminal intent the actor.” (7th Marshall, ed), 10.15, p 720 & of Crimes Clark Law § (emphasis supplied). difficulty

Given the that courts and commenta- surely definition, with we tors have had Hawkins’ say jurors confidence that understand cannot meaning. Adding comprehend the true find assault” but must an "intentional begs of whether it is sufficient cause the injury tends to show intention to evidence jury must harm or whether other injure. additionally subjective find a intent to Opinion by Levin, VII empowered The Court is indeed to redefine com- concepts although they incorporated mon-law are into a statute.45

A thing would, however, It be one for this Court to apprehen- hold that henceforth the creation of an injury sion of is sufficient to constitute the com- (a misdemeanor), mon-law crime of assault quite incorporate another that definition into Assimilating the felonious assault statute. such a felony redefinition into a statute results in a sub- aggravation stantial penalties. of the scheme of criminal subjects persons felony It convictions punishment possible years prison of a four Legislature for the commission of acts which the implied punishment only has elsewhere deserve provides only A misdemeanors. misdemeanor statute that it is "intentionally, malice, without point any any or aim fire-arm at or toward other person”,46 despite dangers inducing a breach peace causing apprehension accompa- which nies such actions. aggravation penalties compounded

This of the gun felony which, law47 as a result of the today redefinition assault, the crime of felonious may require years a minimum sentence of two newly felony menacing gun created awith although injure. there is no intent to

B appears history development It from the Fisher, (1979). Gruskin v 58; 273 NW2d 893 750.233; MCL MSA 28.430. 28.424(2). 750.227b; MCL MSA 407 196 by Opinion Levin, J. in this and assault that courts crime of jurisdictions need other have felt a to sustain prosecutions there is evidence of where accompanied a of force. The Mich- threats show igan cases, Doud, Carlson and conditional assault jurisdictions permit policy. reflect that While some threaten, intent to trier finds an conviction if the gone Michigan that far has not heretofore has position. requires It the taken intermediate per- injure, although to trier to find an the infer that intent from evidence of mits threats trier to

accompanied an unlawful condition prosecutor required is not a of force. The show prove gun loaded; "the fact that was that fact) (if gun is matter was unloaded such be defense”.48 position adopted by

The intermediate the Court allowing injure Doud, in the trier to infer intent to coupled threats with statement from evidence of pro- evidence of the of an unlawful condition and force, the trier to convict scribed kind of allows persuaded when the defendant intended complied injure complainant or she unless he acquit persuaded condition, when injury threat, no and that was intended frightening complainant, albeit was idle.

C proposed, in a Penal When the Model Code majority jurisdictions of the crime the definition governed by law.49 of assault was common (1892), Herron, 230; quoted People v State v 12 Mont 29 P 819 Doud, supra, pp 128-129. See, affecting gun generally, Anno: Fact was unloaded as responsibility, 79 ALR2d criminal (Tentative 9, 1959), app Model No See Penal Code Draft art h, pp 141-143. Levin, J.

Subsequently, statutory revision of law most only states has left nine states in addition to Michigan in which a common-law definition still governs. legislative disparity judgments, reflected statutes,

in such reinforces our belief that it is not appropriate for this Court to make the choices involved in a redefinition of the common-law statutory offense of assault and the offense of menacing felonious assault menacing to make a crime and gun felony. with a a 40 Of the states statutorily which have defined assault and feloni- majority assault, ous a substantial have followed rejecting punishment the Model Penal Code50in as felony menacing a deadly for whether committed with a dangerous weapon

or or not: punish menacing punish —26 do not at all or typically subjects as a misdemeanor which punishment year offender to a maximum imprisonment, of one through not enhanced use of a deadly dangerous weapon.51 or 50 simple While the Model Penal Code includes as a assault "at tempts by physical put menace to another in fear of imminent serious ULA, bodily injury”, 211.1(l)(c), 10 Model Penal Code § offense is punishable as a misdemeanor. The code does not enhance the offense deadly dangerous when weapon. Only committed with a attempts or bodily punishable to cause serious harm are as felonies under the Id., 211.1(2), p code. § 51 states, following following Code, The punish the Model Penal menacing offense, as an penalty but do not enhance the when it is deadly dangerous Code, committed with a weapon: 13A, or Ala tit (eff. 1, 1979); Ann, §§ 13A-6-20—13A-6-23 June Ark Stat Conn Gen Stat 41-1604— §§ 41-1607; Code, 240, 245, 417; Ann, Cal Penal §§ 53a- §§ 59, 53a-62; Ann, 11, 602, 611-613; Ann, Del Code tit Iowa §§ Code §§708.1, (West, Special Stat, 708.2 Pamphlet); Ky 1979 Rev §§508.010-508.050; Stat, (Vernon, Mo Ann §§565.050-565.070 Special Pamphlet, Code); Stat, 28-310; Criminal Neb Rev §§28-308— 631:1-631:4; NH Rev Stat Ann (McKinney), NY Penal Law 120.00- §§ 120.15; Code, §§12.1-17-01, 12.1-17-02, 12.1-17-05; ND Cent Page’s Ann, 2903.11-2903.22; Ann, 21, Ohio Rev 641, Code §§ Okla Stat tit §§ 645; Stat, 163.160-163.190; (Purdon), 18, Or Rev §§ Pa Stat Ann tit §§2701-2702; Ann, Compiled §§22-18-1, 22-18-1.1; SD Laws Vt Stat Ann, 13, §§1023-1024; Ann, tit W Va Code §61-2-9. Utah defines Levin, menacing punishment for —14 enhance the dangerous deadly a or when committed with up weapon,52 typically maximum of four or to a aggra- imprisonment. years In 3 of 14 the five menacing deadly weapon a is with vated offense of punished as or like a misdemeanor.53 apparent there is no consensus

It is legislative judgment. 29 of the 40 states54 men- In dangerous weapon acing deadly or with threat, accompanied by encompassing imme- a show of assault as "[a] another”, violence, bodily injury to Utah Code force or to do diate Ann, 76-5-102, aggravated punishes com- assault an assault § 76-5-103(1)03).However, id., aggra- deadly weapon, § mitted with vated assault interpreted require do an intent to statute been has 396; (1913); Potello, bodily 132 P 14 Green State v 42 Utah harm. (CA 1969). Turner, 409 F2d 215 statutory provisions explicitly following which states have no dangerous menacing menacing deadly punish weapon: awith or mere 18-906, 707-715; Code, Stat, Idaho §§ Hawaii Rev §§ 18-901— 35-42-2-3; Stat, 200.471; Code, 35-42-2-2, 18-910; Wis Nev Rev § Ind §§ Ann, 6-4-501, 939.32, 940.19; Stat, Wyo 6-4-506. §§ Stat §§ punishment menacing following aggravate the states Stat, dangerous weapon: deadly Alas when committed (1978 Ann, 11.15.190, 11.15.220; Stat 13-1202—13-1204 §§ Ariz Rev §§ Ann, Ann, 18-3-206; Pamphlet); Special Stat Fla Stat § Colo Rev 26-1301, Stat, Ann, 26-1302; 784.011, 784.021; Ann Ga Code §§ §§ Ann, (Smith-Hurd, 12-1, 38, Supp); 1979 Cum Kan Stat Stat 12-2 ch §§ Ann, Stat, 14:36-14:38; 21-3408, 21-3410; tit La Me Rev §§ Rev §§ 17-A, 609.22, (1978 Ann, 209, Supp); Special 1252.4 Minn Stat §§ §§ Ann, 94-5-201, Ann, 94-5-202; 609.225; NJ Stat Mont Rev Codes §§ (eff. Ann, (1979 1, September 1979); Special Supp) NM Stat 2C:12-1 § §§ Ann, 22.01, 30-3-1,30-3-2; 22.02. Tex Penal Code §§ assault, deadly punishes including menacing, a Illinois imprisonment weapon year. of one a with a maximum as misdemeanor 12-2, (Smith-Hurd, 38, Supp), 1005- Ill Ann Stat 1979 Cum ch §§ 8-3. imposes punishment months and of six Louisiana maximum $500 La Rev Stat § fine. 14:37. aggravated punishes menacing Jersey with a firearm as an New manifesting only ex- under when committed circumstances penalty then maximum indifference human life and with a treme (1979 Special Supp), $7,500 and a fine. NJ Stat Ann of 18 months 1979). (eff. 1, 2C:12-l(b)(4), September § menacing punished aas is not a or The 26 states which crime dangerous deadly regard to whether a misdemeanor without crime, aggravated, weapon when is used and 3 in which even punished as or a misdemeanor. is still like Opinion by Levin, J. punished felony. singularly inappropriate as a It is change for this Court to the definition of the crime and, effect, of felonious assault mandate — gun felony reason of the law—a minimum sen- years years tence menacing two and a maximum of six for creating appre- firearm, i.e., awith injury causing intending hension of without injury. cause readily identify

One can with the fear of a person gun pointed who has at him. The conclu- person sion that a so confronted has been as- regard injury saulted without to whether although, intended, inconsistent with the common- assault, law definition of ordinary is consistent with the usage of the word "assault” and with tort provide compensation law which seeks to to a person wronged. so It is a different public policy, Legislature however—one which the should decide—whether and to what extent penalties potentially severe of the criminal law brought should be to bear. repeat Legislature

We has indicated punishment as a misdemeanor all is (See accompanying supra.) warranted. text fn

VIII changed Heretofore, when this Court has applied offense, definition a criminal it has its ruling prospectively:

"As for defendant Neumayer, we affirm the circuit court’s reversal of his conviction at the time because he committed the charged, conduct this Court had not California, construed the per statute Miller 413 US [v 15; 2607; 93 S Ct 37 L Ed (1973),] proscribe 2d 419 to 407 Mich 196 262 Opinion by Levin, J. 341, 368; People Neumayer, v

such conduct.” 275 NW2d 230 (1979).55 to have their Ring are entitled the crimes definitions cases tried under when their extant felonious assault assault committed, prior to Sanford were offenses dictum.

Perkins states: redefined to jurisdiction where "In each [assault statute, first menacing] without aid include theory new resulted in conviction adopting the case a crime at the time not defined as for what had been This did not violate the 'assault’ was committed. the constitutional post since that against ex facto laws bar body, it legislative but provision is directed to principle that no one underlying clearly violated doing had been defined what not punished should be change time it was done. Had the a crime at the enactment, would by legislative the courts been made Per- have effect.” permitted have retroactive (2d ed), kins, p Criminal Law

IX disagreeing with the opinion, concurring opinion, lead

i) intent is particular that a indicates and states element of felonious an of felonious assault injure element committed, alternatively, be but the offense can a reasonable an intent create (menacing), injury

ii) of the failure would hold that because element alternative mental instruct on the (On Remand), 79, 81; Similarly, see Bloss (1975). NW2d Opinion by Levin, J. "sufficient”, instruction in Johnson was not and would remand for a new trial in Johnson.56 agree concurring in

We with the indication the opinion specific particular that there is a or men- tal element and with its statement that the i) should be instructed that be there must an ii) injure to or if it menacing is is or to the become Michigan law of that is an alternative committing offense, of means the an intent frighten put in of an immediate battery. disagree, menacing however,

We that is such an committing alternative of means the offense. The concurring opinion Ring reasons that Johnson and concurring opinion only upon states that the issue which granted specific leave was is "whether felonious assault includes opinion dissenting opinion intent as an element”. The lead this do, indeed, of leave to' beyond by grant address issues those covered that limited appeal. opinion response This was written in to the lead opinion only which would decide not that felonious assault does not include a intent but also what are the elements of the offenses of assault and felonious and would overrule Doud. responsible respond I saw but no alternative to the additional points opinion. opinion in lead covered the Statements in an of the controlling profession by regarded Court are read as the and are even by controlling disposition of members the Court as the of future cases regard they beyond scope without to whether are the of a limited grant appeal. Although opinion leave the lead not has become Court, opinion concurring opinion engen- the it and the have which, opinion opinion, dered the memorandum like lead is not grant. by limited to the issue covered connection, noteworthy In this Sanford the lead opinion, any question, without need to address the declared that the menacing part Michigan. form of criminal assault was law dictum, That —concerning party, an issue not raised either counsel, briefing by —written without aid of —in opinions which did not consider the earlier this implicated by dictum, Doud, particularly court opinion which the lead Sanford, says partially instant cases overruled Court, —inconsistent Doud and other earlier decisions of controlling by concurring opinions is now to be said both the lead adopted opinion. and has been in the It memorandum therefore appears ignored expectation that dictum cannot be in the that mem- regard precedential. bers of the Court will not it as 407 Mich 196 Levin, "menacing type of criminal can be convicted of although "misconduct” with which assault”, they charged preceded Sanford, because were

i) say defendant’s "intent did that the Doud not appre- put purpose the victim reasonable battery sup- would of an immediate hension port conviction”, and an assault ii) merely clarifying read] [is Sanford restating there are observation Carlson attempted battery of criminal two kinds and assault — (Emphasis supplied.) putting in fear”. A concurring opinion states that four mem- The "adopted presently the seated Court bers of the accepted reasoning conclusion of Justice and the signed Justices his in SanfordThree Williams (the concurring opinion signers of the and two cases) opinion they "concur in these stated that agree and reached Justice result Williams disposition II, of the issues found Parts with the opinion. III, IV V” of his agrees the "result” or "dis- A who Justice "reasoning” adopted position” or dic- has not opinion. course, is, free to tum A Justice of an reasoning adopts that or dictum state later he agreement, opinion. however, of an Such later on the law. cannot have retroactive effect pertinent only to that in Sanford "issue” II, fn case the one there discussed Part opinion rejecting that at- claim lead robbery tempted and assault with unarmed being are to differing penalties unarmed identical crimes rob Due Process

thus violated the Equal Protection Clauses. distinguishes frequently cases earlier This Court Levin, J. opinions or declines to follow statements in earlier ground on the that what was said in the earlier case was obiter dictum. A clearer case than San- characterizing opinion ford for statements in an imagine. dictum obiter is difficult to The lead and concurring opinions in the instant cases fail to deciding state a basis for what obiter dictum is controlling may ignored. and what or should be

B concurring opinion is correct that Doud did say, many words, in so the accused’s purpose put intent or apprehension the victim in reasonable battery

of an immediate could not support argu- a felonious assault conviction. An ment can be made that all that Doud decided was must be instructed that it must determine what the was, defendant’s actual intent pre- but did not define the mental element more cisely beyond saying that the defendant’s actual intent was determinative. persuaded

We are the Doud Court consid- rejected menacing ered and the alternative form of assault, a view shared the lead in instant cases:57 simple

—The Court said that the law of assault purpose corporal "involves an intent or to inflict a supra, p hurt to Doud, another”. 123. The thereby unmistakably Court said that there must injury be an intent to inflict an to constitute a simple assault.

—It question then went on to address whether the felonious assault statute made it an "point accompany- offense to ing another, a revolver at employment the act with a threat of of its 57 X, See Part infra. 196 Levin, power made not com- in case a demand is

lethal aggres- plied regardless with, intent of the of the p responded Id., in the next sentence: sor”. 124. It speaks of with a revolver "The statute an assault weapon, dangerous as offense other formerly punished thereby as a sim- was covered ple assault, that, in the must infer use we Legislature to intended the same term 'assault’ the meaning ordinary carry with connection its p (emphasis violenceId., crimes of offered supplied). immediately statement follows

Since latter explicating the "law of sim- the earlier statement ple clear what Court was assault” it is simple saying is is that the definition of assault incorporated assault statute. into the felonious analysis That, course, of the lead is premise proceeds which on the in the instant cases with that felonious assault common-law assault concurring opinion The does added element. an agree signers its indicate with not whether analysis. explain meaning, Doud went on to its Court

stating the felonious assault statute while aggravated penalty as- increased the sault such it "did eliminate the of intent purpose, every involved case p Id., "[a]t then nature”. 124. It stated criminal the trial defendant fully permitted testify was no to his intent and claimed he entertained though purpose injury. claim to indict such Even words, acts, refuted his demeanor and right jury go what had a defendant p purpose”. Id., he claimed to have been his (emphasis supplied). defen- that the statement right dant had a have the determine purpose injury”— he to "inflict whether had 267 by Opinion Levin, J. conjunction question posed read in with when the by point the Court whether it was an offense to a gun accompanied rejection threat a and its of judge’s that instruction the acts defendant’s govern and not a "secret intent not to inñict an wholly incompatible pur- injury, with a declared pose corporal accompanied manifesting injure, acts immediately thereby

hurt one menaced p (emphasis supplied)]” [Id., that —indicates rejected concept Court that one can be threatening menacing convicted injure. an intent to without Any question rejected whether the Doud Court concept that is eliminated —and the lead agrees by following in the instant cases state- — arising assaulted, ment: "While fear one bodily from hurt, reasonable having ability threatened another means and same, inflict the is mentioned in some of the books proper go jury, as evidence to to the we do not governs upon ques- understand that such fear purpose tion the intent or of an accused under p (emphasis supplied). Id., this statute.” thereby The Court indicated it had consid- argument prosecutor’s calling ered the in the brief jurisdic- the Court’s attention to decisions in other making menacing threatening tions assaults an offense and concluded that was the law of Michigan. say can, course,

One that all that the Court saying engendered was that the fear does not govern say did not the intent govern. Reading opin- create such fear did not whole, however, ion it is clear that the Court rejected concept also that the offense is estab- upon proof lished of the intent to create such fear. The defendant in- Doud had stated that he 407 Levin, frighten Court indi- the victims. The tended to enough: minimally, cated, is not that harm to the intended no "It claimed that defendant is effect, to for moral had revolver its workmen and the a land; the was bor- his that revolver scare them off it loaded know whether was and he did not rowed one or not, it and in the brief is said: " bar, the is at the attention of 'In the case court proof that is no whatever to the fact that there invited only testi- Doud was loaded. the revolver held himself, Doud point given that Mr. mony on the is gun know whether the was that he did not who testified or not. loaded " no that presumption there is 'It has been held that and the burden of a so used was loaded that revolver proof [1870]; LRA State;’ citing Napper, is on the State v 6 Nev 113 (15 States, 247; Price v United 85 CCA 156 F 950 1272); State, Fastbinder v supra, p St 341 Ohio [NS] Doud, People v [1884].” gun the that evidence that conclusion The Court’s plainly is matter of defense is unloaded a was any the felonious construction of inconsistent threatening make or statute that would assault menacing an offense. argued indeed, could, that Doud Court

It be adverting assault to the definition of not then was —all that gun saying for a the Court was that was "dangerous weapon” loaded, it and to a must be be it was not if dangerous. threatening finds it was not loaded that already that

But had said the Court not at common assaults were offenses simple not be hence assault could law menacing threatening proved by evidence of corporal It would hurt. without inflict reasoning process which have been convoluted brought that the Court conclude would have theatening pur- menacing was Levin, J. poses felonious assault but evidence that of gun by way unloaded was material of was defense. defendant victim Unless the states be- gun perhaps is unloaded lieves that even hopes unloaded, if the pointed gun believes or it is victim likely is create a sense fear and apprehension. Query: point pointing What except may it to cause the that it be belief loaded? thought legislative it If the purpose was Court engender to make intent create or fear committing or assault, a means felonious that a

so redefinition common-law as- required, sault would have concluded gun evidence was unloaded was by way admissible of defense. had that

The Court noted the authorities were materiality gun divided the on whether the compelled loaded. It was not to find that evidence that it was unloaded was matter of defense. It could have concluded with other courts that such evidence is not a defense. The most reasonable conclusion is that it concluded that it was a de- already fense it because had that concluded the govern upon creation of fear did not the intent or purpose creating accused, that such fear and apprehension was not felonious assault.

Any regarding doubt the view taken the following paragraph Court is resolved in the of its opinion: "Several of the cases last cited the rule involved with simple

reference to and it part on the claimed of applied simple defendant that the rule in cases of assault weapon. Having application has no to dangerous assaults with a statute, the language mind our that it specifically revolver, forbids assault with enactment, underlying the evident reason its that purpose involves no or beyond such as 407 Levin, grade only simple and raises assaults relates designated forbidden committed when assaults are weapons, to the cited with reference we cases think (em- p applicable.” simple Id., 129 are rule in phasis supplied). assaults that the statute Doud statement Court’s beyond purpose such as no intent or "involves coupled simple earlier with its assaults” relates simple assaults involves the law of statement that corporal purpose hurt inflict a an intent another makes did not leave clear that Court threatening open question or menac- whether Michigan. ing part of the law of were assaults C threatening not hold In all events Doud did part menacing of the law of assaults were Michigan. criminal assault The concur- return to Carlson Sanford. We ring Sanford, than relies on Carlson more merely stating clarifies and restates Sanford that Carlson was "observation” and Carlson pronouncement on matter. the first By stating was resolved in grapple concurring opinion Carlson, the need not i) assault and of felonious with whether the law of ii) giving changed, so, reason if should be assault for the iii) change change, in the and be whether properly Ring applied retroactively to John- can law preceded the Sanford son and announcement. whose offenses may did have Carlson "observed” While are two kinds of criminal there "hold” putting —attempted battery not, in fear. It did Cyclopedia Sanford, that either as did or declare Bishop forth in Carlson definition set People v Levin, J. adequate definition. It said rather the two together” "may definitions "taken be said” to in- necessary clude all elements. To conclude that two "may definitions, which be said” to include all necessary together”, elements when "taken can be separately taken and establish two different kinds ignore cautionary of criminal assault is to both the "may together”. said” and be the collective "taken definitionally, nothing is, An "observation” more (in Sanford) "clarifying” than dictum. The dictum (in Carlson) Query: dictum is still dictum. Do two holding? plus No, "dictums” make a dictum dic- tum are dicta. although hold,

That Carlson did not it did ob- serve, that there are two kinds of criminal assault —attempted battery putting in fear —was the conclusion in the lead in Sanford: introductory "While the language presenting treatises, two, definitions of the two 'We cite which together, may taken be said to include all necessary susceptible elements’ is to the conjunctive interpreta- given tion Appeals the Court of making this case the Bishop definition a necessary along element Cyclopedia definition, disjunctive interpretation possible, also namely Bishop that either or the Cyclopedia definition is sufficient alone. The facts Carlson do not establish either conjunctive or the disjunctive interpretation because the record disclosed facts that satisfy would either or both definitions.” Sanford, supra, pp (emphasis 477-478 sup- plied). signers concurring opinion of the have now reasoning associated themselves with the Sanford disposition as well as the conclusion and presented square issue in that case. It is difficult to subject the Sanford conclusion that Carlson is interpretations concurring opinion’s two with the 407 Levin, Opinion apparent that the instant cases in the conclusion threatening Michigan proscribed or menac- law charged ing commission the assaults before the opin- were, as that who the defendants offenses "charged pre-Sanford puts it, miscon- ion duct”. in to make choice was no need Carlson

There The Carlson observa- the definitions. between two had two kinds of assaults been tion that different together that taken to in the books and referred necessary they may the be said to constitute all deciding judicial merely overture to was elements presented instruc- in that case—not an issue concerning sufficiency one tional issue but applying Court, doctrine of con- evidence. "[wjhere, only as in this assault, that ditional held coupled threatened, case, with an an assault condition, to be decided is unlawful done are sufficient be submit- acts whether supra, p People jury”. Carlson, v ted (emphasis supplied).

Further, were two if had held that there Carlson criminal assault— kinds of common-law different attempted putting battery Doud in fear —then simple properly have said could corporal purpose to inflict a an intent or "involves injury”. another”, hurt do an "intent citing Court, aware of and therefore The Doud creating Carlson, two different did not read simple kinds of or criminal assault. concurring opinion, in it is asserted

Thus changed opinion, the law not the lead but threatening to include Sanford was decided before opinion menacing although assaults, the lead say says did not the Carlson Court Sanford say opinion signers concurring now reasoning, adopt they and there is an Sanford Levin, J. acknowledgment the lead the instant Doud is inconsistent with the Sanford cases that superseded by that it was that and a claim dictum dictum. has been that a "criminal

The rule in this state unambiguous ought plain that be so statute may read, and understand whether 'he who runs’ provisions”.58 conduct is in violation of its his standard, or it that standard a lesser Measured plurality after not be said before or even could pronouncement, today, until this Sanford threatening menacing had declared that or Court assaults were part simple of the law of felonious Gillespie If and two commentators con- assault. (see accompa- contrary to the fns 32-34 and cluded supra) judge Ring nying text, circuit contrary and it takes the kind concluded to explication opinion distinguishing set forth the lead and, indeed, in the instant cases the over- ruling properly decisions, it cannot earlier be or, run said that a defendant could and read more simply, that he had been forewarned.

D concurring opinions, The lead and in combina- opinion, changed tion with the memorandum have change the law. That has been made because a majority apparently of the Justices feel threatening menacing subject assaults should be greater penalties imposed by than the statute pointing gun which makes malice a without simple misdemeanor. question power

We do not of the Court to change the definition of a common-law offense or to revise an earlier construction of a statute. Our

58 (1918). People Ellis, 157, 161; 169 NW 930 Mich 196 Levin, that that does state concern is that the Court doing, but, rather, reaches result is what it is precedent. reading of earlier an unwarranted its earlier decisions When a Court overrules should doing acknowledge what it is and should give a therefor. reason

E Having changed law, should Court so plainly promptly which is im- address a holding today. plicated by In v Cham- its (1975), this blis, 408; NW2d 473 policy matter of a lesser Court that as a said given not be where the offense instruction shall charged a sentence of two or offense can lead to years than lesser to not more one. more Recently, and the People 244; Miller, v (1979), policy that we revised with NW2d regard larceny over and under $100. regard now in order A revision is similar intentionally pointing gun the lesser offense of and simple perhaps even assault. jury that the defendant

If a is convinced wrongdoing guilty it should be able to some of rather than convict him of lesser offense convict him of the greater only the alternative offense as question acquittal. of In these the cases such as subjective guilt generally or turn on innocence will questions and (whether close of the defendant’s often menace). injure The or to threaten opportunity, as now have such should regard property, of choos- to valuation of has with ing a offense. lesser

X opinion implicitly decides The memorandum by Levin, Ring convicted of feloni- can be and that Johnson although menacing theory their aon ous assault justify preceded this It not does Sanford. conduct following: light of result i) opin- concurring memorandum lead, The proposition rely that a on Sanford ions simple by made out an can be criminal places in reasonable another act which unlawful battery. receiving immediate ii) acknowledges opinion Doud that The lead law so and that the rule of "rule of law”59 stated not made out an assault was was that stated apprehen put[ting] "merely fear or in reasonable changed, of law "has rule and states sion” change also”, such too, here and Doud is overruled having apparently overruling effected been opinion signers thus the lead Sanford.60 acknowledge stated Doud was the law superseded Sanford. before concurring opinion signers not, in do many rule stated as words, claim that so opinion was earlier in Sanford in the lead dictum holding. they Rather, Sanford as read stated rejected acknowledges threaten Doud had The lead following menacing by quoting from the Doud ing opinion: assaults assaulted, apprehen- arising from reasonable "While the fear of one ability hurt, having bodily means threatened another sion to evidence to governs upon under this statute.” proper same, of the books as inflict the is mentioned in some go jury, that such fear we do not understand to the purpose of an accused of the intent or Doud, supra, p 125. Immediately following quotation from Doud it states: recognized consequence, the rule of law it must be "As a existing victim if the in Doud as to an assault not stated is this Court merely put what the defen- fear or in reasonable changed doing here also.” too and Doud is overruled dant is has specifically opinion while Burk did not 60 The lead states that necessity Doud, directly opposite it on overrule charging specific superseded Burk Doud: "so and to that extent supersedes point.” Doud on that 407 Mich Levin, restating "merely clarifying Carlson obser- of criminal vation that there are two kinds —attempted battery assault putting fear”. But proposition Sanford, which is relied on for the Michigan law makes it a crime to commit menac- ing edged threatening expressly assaults, or acknowl- subject

that Carlson was to alternative in- terpretations. concurring opinion only claims observation, that Sanford "clarified” Carlson’s opinion acknowledges observation which the lead holding, was followed in the felonious assault stating contrary Doud, rule of to the case of and law rejecting reading the alternative of Carlson today adopted. (the majority of the

While there is a clear Court signers concurring opinions) of the lead and menacing threatening state that crime, assaults are a they agreed have not on a rationale which was, addresses the fact that this new rule of law following newly suggested Doud, in Sanford —after Ring alleged. Johnson and had committed the acts joined We have with the Court the memoran- opinion, although disagree dum we with its under- lying attempt having thesis, because, taken these cases clarify area, the law this we should opinions. not leave it unresolved with 3-2-2 very signing of a memorandum in these non-precedential cases, decisions, to avoid further non-precedential underscores that Sanford was changed only today and that the law is when a joins majority opinion, of the Court in one opinion. memorandum

Henceforth, dissent, over our the law of Michi- gan threatening menacing will be that a is a crime. But that law. The has not heretofore been

populace this has not been forewarned of being ap- Court’s decision is nevertheless which plied retroactively. Levin, J. overruling expressed de- about is often

Concern gives usually the Court Court and this cisions of change impact rule in the consideration prospective or it should be whether of law and recognition no this issue There is retroactive. opinions. concurring memorandum lead, wrong apply fundamentally this new rule It is menacing making law, assault a of substantive crime, retroactively to acts committed before pronouncement or, indeed, to acts commit- Sanford opinion filing the memorandum ted before time declares the first which for signed by that the rule there stated Justices four Michigan. the law be for a Johnson and remand

We reverse would Ring for trial. trial, affirm and remand new J., Levin, Kavanagh, concurred

Case Details

Case Name: People v. Joeseype Johnson

Court Name: Michigan Supreme Court

Date Published: Oct 29, 1979

Citation: 284 N.W.2d 718

Docket Number: Docket Nos. 58560, 60557. (Calendar Nos. 2, 3)

Court Abbreviation: Mich.