*1 1980] v Kubasiak
PEOPLE v KUBASIAK 6, 1980, May Rapids. Docket No. 47476. Submitted at Grand Decided 2, 1980. July applied appeal Leave for. assault, charged David W. Kubasiak was with felonious assault, and with intent to commit felonious and first- degree charges criminal sexual conduct. The arose out anof incident which a codefendant broke into the apartment estranged They pursued of Kubasiak’s wife. a visitor attempted engage and then Kubasiak in sexual intercourse with his wife. Kubasiak was bound over to circuit court for quash information, trial. Before trial he made a motion to denied, Court, Letts, which was Kent Circuit T. John J. Kubas- granted, appeals by contending iak leave that there was insuffi- cient evidence at the examination for the examin- ing magistrate to bind him over for Held: trial. provides 1. inter-spousal immunity The statute which extends degrees person to all of criminal sexual conduct. A does not degree any commit criminal sexual conduct where the victim legal spouse parties living apart is his or her separate one of them has filed for maintenance or divorce. Here, living apart were but neither had filed Therefore, maintenance or divorce. could not be convicted of criminal sexual conduct and the examining magistrate binding abused his discretion in charge. defendant over on that examining magistrate admitting 2. The erred in into evidence report investigating reflecting of the officer a statement made visitor, the victim of the felonious assault. There was no indication that the victim had examined the [1, [3-5] [6] [8] [9, 73 Am Jur 65 Am Jur 29 Am Jur 610] Am Jur rape, on wife. 84 ALR2d 1017. 21 Am Jur 21 Am Jur responsibility 2d, 2d, Rape 2d, 2d, Reference for Points in Headnotes 2d, Statutes 300. Evidence 2d, Criminal Law Assault and Criminal § 27. § of husband for §§ §Law Battery §§ 877. 13,17. § 48 et rape et seq. seq. or assault to commit memory adopted report it at a time when his fresh. incident was presented to that a evidence show 3. There was insufficient *2 place. assault is assault had Felonious felonious assault taken pres- dangerous weapon. was no evidence of with a There dangerous weapon may and one not be inferred ence or use of a presented Binding here. the defendant over from the evidence charge an abuse of discretion. this was support a find- 4. insufficient evidence Because there was there was also insufficient evidence of felonious assault finding that assault was intended. The a a felonious binding the defendant over his discretion in abused charge intent to commit and on the of felonious assault. Reversed, quashed. and the information however, J., would, urge the Riley, concurred. She D. C. inter-spousal
Legislature modify providing immu- the statute nity sexual conduct act to eliminate the from the criminal necessity filing separate of maintenance or divorce before a against spouse convicted of criminal conduct could be recognize a law which would his her mate. She recommends or may spouse sexual assault if the assault be convicted of a length separation time of after of after is made a certain spouses. Magistrates Examining — — — Probable Cause 1. Criminal Law Evidence. duty examining magistrate to bind a defendant It of an appears a been committed and over for trial if it crime has probable that the defendant committed there is cause to believe it; guilt positive proof required must be of is not but there crime or evidence evidence on each element from which those elements be inferred. Mag- Examining Preliminary — — 2. Criminal Law Examination — istrates Abuse Discretion. A determination at a a should not be disturbed absent clear abuse of discretion. — 3. Statutes Construction of Statutes. language precluded Judicial construction of a statute is where the unambiguous. plain of the statute is — — 4. Criminal Law Statutes Strict Construction. construed, strictly cannot and a defendant Criminal statutes are clearly be convicted under a statute unless his acts are unequivocally encompassed by its terms. — — 5. Law Courts Crimes. Criminal authority have no to infer the Courts existence of crimes not precedent. or defined statute common-law Spouses — — — 6. Criminal Law Criminal Sexual Conduct Stat- utes. person any degree does not commit criminal sexual conduct of legal spouse if the victim is his or her living apart one of them has filed for maintenance (MCL750.5201; 28.788[12]). or divorce — Examining Magistrates — 7. Law Evidence. examining magistrate may only legally An consider admissible reaching evidence in decision to bind defendant over for trial. Hearsay — — Exceptions — 8. Criminal Law Evidence to Hear- say — Recorded Recollection. *3 pursuant Documents admitted into evidence to the recorded exception hearsay recollection to the rule must meet three (1) pertain conditions: the document must to matters about (2) knowledge; which the declarant once had the declarant matters; now must have an insufficient recollection to such (3) by and the document must be shown to have been made or, declarant, declarant if made than other to have been accurately examined the declarant and shown to reflect the knowledge declarant’s when matters were fresh in his memory. Battery — 9. Assault and Felonious Assault. (1) (2) The elements of felonious assault are assault with dangerous weapon. Battery — — 10. Assault and Intent Proof. prosecutor duty prove has the to that a defendant entering and with intent to commit felonious assault intended to commit a felonious assault. Kelley, Attorney General,
Frank J. A. Robert Derengoski, Sawyer, General, Solicitor David H. Prosecuting Attorney, Irons, and Carol S. Chief Appellate Attorney, people. for the appeal. on Hall, for defendant M.
David Burns, P.J., and J. H. Gillis R. B. Before: Riley, JJ. D. C. charged with The was Gillis,
J. H. J. defendant 28.277, assault, 750.82; MSA break MCL feloni to commit with the intent 28.305, first- 750.110; MSA assault, MCL ous conduct, MCL degree criminal 28.788(2)(1)(f). A preliminary 750.520b(1)(f); MSA at September was held examination was bound the defendant of which the conclusion charges. three on all over for trial trial, moved in circuit to Prior The motion was the information. quash to court 14, 1979. June in an order dated denied sought appeal leave to this defendant thereafter appeal for leave was application Court. The 21, 1979. GCR dated December an order granted 1963, 806.2. the evi- appeal contends on
The defendant at dence adduced deci-
was insufficient
charges.
of the above
him over on any
sion to bind
examining magistrate
It
duty
is the
if it
that a
appears
over for trial
bind a defendant
probable
has
and there
crime
been committed
it.
committed
cause to believe
defendant
Asta,
28.931,
766.13;
590, 609-610;
positive
The defendant’s wife is the victim of the charge. criminal sexual conduct The defendant relationship precludes contends that the marital finding first-degree criminal sexual conduct had been committed. argues inter-spousal
The defendant that the im- munity of MCL 750.5201 extends to all forms of particular, first-degree criminal sexual conduct; in people argue criminal sexual conduct. that the statute’s use of the term sexual "assault” indicates inter-spousal immunity only extends to those acts of criminal sexual conduct which involve an assault, i.e., assault with intent to commit crimi- 28.788(7). 750.520g; nal conduct, language plain Where the of a statute is unambiguous, judicial pre- construction thereof is Lansing Lansing Twp, cluded. Mich 648- (1959). 649; Where, NW2d 804 here, reasonably subject statute to two or more inter- pretations, proper interpretation must be as- judicial certained reference to the canons of King County construction. v Director of Midland Dep’t Services, Social NW2d 270 *5 App 98 Mich 529
534 Opinion of the Court A de- construed. strictly statutes are of language be under cannot convicted fendant unequivo- clearly unless his acts are a statute People v 93 Lyons, uncompassed its terms. cally by (1979). 35, 43; 788 The rule is App 285 NW2d determining what actions employed most often in If prohibition. a statutory come within of scope is the act there is doubt to whether to be in the that doubt is prohibition, embraced This principle defendant. resolved in favor of the of notice to the defendant. is based on idea Ellis, 157, 161; 169 930 People v 204 Mich NW (1918). it is premise
This reflects the principle also criminal of- Legislature define job of in interpreting the courts by fenses. Restraint infringe- to avoid judicial criminal statutes works principle No is legislative ment of that function. universally deprives more settled than that which infer, from their authority judicial all courts of by by crimes not defined statute or policy, ideas of Branch Circuit Ware v precedent. common-law (1889), Judge, 75 Mich 491; quoted 42 997 NW Johnson, 221, 225; People Willie 75 Mich v (1977). NW2d interpre- supportive are of principles These law prior tation the defendant. Case urged by of criminal conduct act adoption man be his guilty raping held that a could not Pizzura, v People 178 NW wife. See interpretation To adopt plaintiffs pun- subject MCL 750.5201 would de- clearly ishment for a crime which neither fined defined at common-law statute nor all wholly precedent. This cannot be done without As above of construction. violating principles such, 750.5201 inter- properly hold we to mean preted an actor does not commit first-through-fourth-degree criminal sexual conduct if the his legal spouse victim is or her living apart and one of them has filed maintenance or divorce.
We note that
this
interpretation
is consistent
with our
of the
perception
legislative intent under
MCL 750.5201.
lying
We have examined the vari
ous extrinsic aids cited by
parties
the
which relate
legislative
to such
intent and conclude that while
Legislature
the
intended that
the criminal
strengthen
conduct act
the criminal
law describing
Nelson,
conduct,
People v
unlawful sexual
303,
App
319;
(1977),
We consider whether sufficient evidence at the 1 alleged respect liability The defendant’s criminal to the with charge upon
criminal sexual conduct is not the behavior of based another. See fn 2 infra. Mich findings breaking and en- assault and
crimes of felonious had, intent commit felonious assault tering and that existed fact, in committed been com- cause believe probable mitted them. first
In must address answering question this we that an It is well-settled evidentiary matter. magistrate may only legally consider examining to bind reaching in a decision admissible evidence Walker, trial. a defendant over for The defendant 189 NW2d considering erred claims that investigating officer concern- testimony of the made the victim prior statement felonious assault. objectionable hearsay testimony
Otherwise recognized exception if it admissible falls within 803(5) MRE pro- exclusion. hearsay rule of vides: *7 rule, following hearsay the by "The excluded not [is] though is as a witness:
even
the declarant
available
"(5)
record
recollection.
memorandum or
Recorded
had
concerning a matter about which a witness once
knowledge but now has insufficient recollection to ena-
have
testify fully
accurately,
ble him
shown to
adopted by the
when the matter
been made or
witness
knowledge
memory
was
in his
and to reflect that
fresh
admitted,
may
correctly. If
the
or record
memorandum
itself be received
be read into evidence but
not
by
party.”
an exhibit unless offered
adverse
must
this rule
pursuant
Documents admitted
(1)
requisites:
per-
The
must
meet
three
document
once
which the declarant
tain to matters
about
(2)
have
must now
knowledge;
had
The declarant
People v Kubasiak
(3)
matters;
an insufficient
recollection as to such
The document must be shown to have been made
or, if
by the declarant
made
one
than
other
declarant,
to have been
examined
the declarant
to accurately
shown
reflect
the declarant’s
knowledge when the matters were fresh in his
Edwards,
United States v
689,
memory.
539 F2d
(CA 9, 1976),
cert
den 429 US
691-692
984;
97 S Ct
and United States v
(1976),
EdL
2d 594
Williams,
(CA
344,
1978),
571 F2d
interpret-
803(5)
803(5).
ing FRE
which
identical
to MRE
Detroit,
Moncrief v
See,
generally,
189-190;
In. alleged assault, victim made the in question statement to the investigating officer five days prepared after incident. The officer report reflecting the statement. Schansema testi- fied at he that had present no at recollection events issue. The magistrate permitted report the officer to read the into evidence.
We find the first and requisites second admissibility question pre- were satisfied. The sented whether the third Did was. Schansema report examine the and find it to be accurate when the matter was fresh in his An memory? examina- tion of the record indicates he did not. There is no indication that adopted declarant report at time knowledge when he retained the matter. Accordingly, guarantee is no report the events accurately reflected transpired. which The third to admissibil- requisite ity was not satisfied. improperly *8 such considered evidence at the exam- ination. whether,
The becomes im- question absent such evidence, there was neverthe- considered properly the evidence to sufficient presented less that The answer is decision. bind-over there was not. (1) an of assault
The elements
felonious
(2)
dangerous weapon. People
a
assault
with
Johnson,
544, 546-547;
against
plea bargain
not
the codefendant
been settled
and is
has
appeal.
at issue in this
charge
only to Ronald
The felonious assault
has
reference
Schansema.
*9
People
v
D.
C.
J.
Riley,
Concurrence
The same conclusion
respect
obtains with
to the
entering
with intent
to commit felo-
charge.
nious
assault
respect
With
to such a
prosecutor
charge,
has the duty
prove
intended to commit
particular
i.e.,
charged,
felony
assault.
Westerberg,
Mich
The circuit judge’s quash failure to the informa- tion against the defendant was erroneous as to all three charges. The circuit court is reversed. The quashed. information is Burns, P.J.,
R. B. concurred. (concurring). Riley, D. C. J. I concur in my colleagues’s disposition However, of this case. I write separately urge Legislature to modify 28.788(12). 750.5201; written,
As presently the statute only recognizes sexual assault between if spouses couple living apart and if one of them has filed for separate maintenance Although or divorce. I can readily accept the requirement quar- ters to demonstrate rejection of the I marriage, agree cannot with the necessity filing. There possible are many financial and social reasons why spouse might separate but not seek a divorce. I do not spouses believe that these penal- should be ized choice, for their one which have been selected out of necessity. equitable far more law Riley, D. C. J. Concurrence recognize sexual assault one would
would be one length separation, say after a certain more since just modification would be month. This equal persons of all application have it would social, religious backgrounds. economic