People v. Marshall
255 N.W.2d 351
Mich. Ct. App.
1977
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*1 People Marshall 1977] v MARSHALL

PEOPLE op the Court Driving—Words 1. Criminal Law—Automobiles—Felonious Phrases—Statutes. negligent driving Felonious is the reckless of a vehicle (MCLA highway crippling 28.661). 2. Criminal Law—Automobiles—Evidence—Intoxication—Feloni- Driving. ous

Testimony indicating appeared the defendant be intoxi- immediately cated after the occurrence of accident (1) charge grounded which a admissible (2) gestae, part of where intoxication is the res where such determining aids in whether the defendant has (3) carelessly, recklessly such driven where evidence is proceeded determining relevant in whether defendant danger. a known face of Evidence—Relevancy—Trial 3. Court’s Discretion. regarding relevancy

Determinations of evidence are discre- tionary judge. with the trial [1] [2] Statute Admissibility 7 Am Jur 8 Am Jur ALR2d 580. to ALR2d 1245. cause prohibiting 2d, 2d, of, References as res Automobiles and Automobiles and responsibility gestae for Points of statements or exclamations driving: Highway Highway for, definiteness and in Headnotes motor vehicle accident. 53 Traffic Traffic 938. §§ § certainty. 263 et relating seq. [3] [4, 6, [5] 75 Am Jur 73 Am Jur 29 Am Jur 7 Am Jur et seq. 8 Am Jur 2d, 2d, 2d, 2d, Trial 710§ Statutes 300. Automobiles and Evidence 2d, Automobiles §§ et seq. Highway etseq. Highway Traffic Traffic §§ §§ et seq., 1034. Mich Jury—Felonious Criminal Law—Automobiles—Instructions Driving—Negligence—Statutes. *2 jury they prejudicial to instruct a trial court It is error for of felonious even could ñnd defendant reckless, wilful, wanton, have conduct was found to permit jury import is to where the instruction clear upon finding negligence guilty 28.661). of mere to ñnd the defendant (MCLA 752.191;MSA Drivers—Crippling Automobiles—Negligent 5. Injury—Felony— Legislative Intent. every driver who intend that The did not felony. subject crippling to conviction of a causes a Driving—Felonious 6. Criminal Law—Automobiles—Reckless Driving—Statutes. reasonably can statute The elements the reckless however, ordinary negligence; interpreted the courts to include interpreted the reckless have (MCLA require wilful and wanton misconduct statutes 28.661). 9.2326, 257.626, 752.191;MSA Driving—Ordinary Criminal Law—Automobiles—Reckless 7. Negligence—Statutes. Negligence—Simple requires negli- more than violation; requirement gence to the statute’s constitute any person or conduct or be applicable the intention to make indicates only culpable than that embraced in if the conduct was simple negligence. Kallman, T. J. Ingham, from James Appeal (Docket 14, 1976, Lansing. at Submitted December 27194.) March Decided No. Marshall, Jr., feloni- C. was convicted of

James appeals. Affirmed. ous A. General, J. Robert Kelley, Attorney Frank L. Scodel- Derengoski, Raymond General, Solicitor Atkinson, ler, Prosecuting Attorney, and Lee W Attorney, for the Appellate people. Chief People Marshall Court G,P. Dunnings and Canady, for defendant. Cavanagh J., Gillis, Before: H. P. and M. F. Holbrook, Jr., D. E. JJ. Gillis, J. H. P. J. Defendant was convicted by a 28.661. His years proba- sentence consisted two tion and 20 in jail plus costs, weekends $360 fine and $250 license revocation. at established trial on No- 10-11,

vember had worked the shift Body Lansing. afternoon at Fisher He left work at 4:30 a.m. after about working about 11-1/2 hours. Defendant then went to a fellow worker’s home where he and two co-workers chatted and shared amounting some to two whiskey drinks *3 apiece. of left Defendant and one the men at about 6:30 to go a.m. out breakfast. for Defendant fol- lowed his co-worker the restaurant. They were traveling northbound on a five-lane highway. The co-worker’s car left turned from the center lane into parking the lot restaurant. Subse- quently, whereupon turned left the vic- tim, driving a collided with motorcycle, defend- ant’s The car. victim was thrown off his motor- cycle and landed near the parking area of a bank. He was severly injured.

The victim stated he traveling south- bound from 2-1/2 blocks saw the away he first car turn into the restaurant lot. He con- parking traveling tinued southbound to in point a front of (defendant’s the restaurant where the second car car) in turned front of him and occur- the collision red.

Defendant testified that he immediately turned after his co-worker turned and did that he not see App 74 Mich Opinion of the Court stated that he co-worker the motorcycle. his car. parked had he heard crash after centered around the trial Much of prose- accident. The after the defendant’s behavior that de- who testified produced witnesses cution he and that did not fendant intoxicated appeared police administered pass balance tests the two drinks stated at scene. Defendant no his had effect intoxi- that evidence contends it as concerned events subse-

cation was irrelevant also that question quent to the sup- sufficient evidence people failed to adduce driving. The two felonious port conviction of it for once is presented overlap considerably issues i.e., constitutes established what conviction, support is sufficient what evidence to which evidence it clear as then becomes relevant. driving as the reckless or define felonious

We highway vehicle provides: crippling injury.1 driving plus is reckless Defendant contends that crippling injury. as amended reads: The reckless "(a) upon highway Any person or a frozen who drives lake, general public pond place open public, or other to the stream vehicles, including any designated parking motor area state, safety of this in wilful or wanton for the within persons of reckless "(b) punished by Every person convicted jail period county municipal more imprisonment than MCLA for a of not $100.00, days by a than both.” fine of 257.626;MSA 9.2326. *4 phrase due the additional "without Felonious contains circumspection speed toas and at or in a manner so caution and a * * * endanger likely person property .” We to or or Chernosky, ordinary negligence. parte interpret Ex this to mean (1949). interpretation reject that 217 SW2d 673 We Tex Crim support liability. Negligent ordinary negligence ing MSA driv- cannot criminal supports liability, MCLA in death criminal 28.556, constitutional, People v has held and same Court of the

"Every person any high- who drives way carelessly in wilful heedlessly and and wanton others, rights of the without circumspection speed due caution and and at a or in a manner so as to any injuring thereby so as cripple death, person, causing but not offense conviction thereof pay shall sentenced to [1,000] a fine not exceeding one imprisonment thousand dollars or to in the state prison imprisonment 752.191; MSA 28.661. not exceeding two discretion of the court.” [2] years both fine and

The statute focuses on the result of the defend- actions than on ant’s rather the nature of the possible words, actions. In other it is that two engage individuals could in identical conduct but yet penalties by receive different virtue of the fact Injury penalties the results differed. oriented illustrate, not are infant to our law. To we reiter- perhaps ate well-known and overused law school example. A B If B hits the nose and suffers no physical injury, charged battery. A could be with hemophiliac, Yet, D, if C hit in the nose D charged result, bled death as a C could be involuntary manslaughter.

We find in the instant case the evidence presented was sufficient to sustain a conviction of disputed. It only necessary support therefore that the evidence either or reckless supports finding The evidence that defendant right yield way oncoming failed to to the motorist. could find that this occurred (1930). McMurchy, 228 NW 723 We are troubled high fact driving homicide is a misdemeanor while felonious However, felony. penalties is a are not inconsistent and presently provisions. invite to review these *5 74 Mich Cavanagh, J. F.M. possible the example, variety For of reasons. the of defendant’s effect alcohol on jury lookout. The could keep proper failure to defendant, by driving under the also find that that in choice was influence, made a conscious others. Whatever the reason, jury’s verdict. supports the evidence evidence intoxication contends that in this case. He offense charged is irrelevant jurisdictions that hold in other directs us to cases to support a find- is insufficient intoxication alone cases do not however driving. These ing of reckless of intoxica- evidence proposition stand from the well estab- Aside tion inadmissible. determinations are dis- relevancy rule that lished additionally judge the trial cretionary was part in intoxication the instant case Campbell, App 30 Mich gestae, People the res (1971), rea- 43; 186 there are additional NW2d is properly Such evidence admissibility. sons for its of whether making in a determination considered In case carelessly. has this recklessly one driven in resulted severe have an accident which large de- had a effect on possibly Alcohol injury. additionally is relevant perception fendant’s determining proceeded whether defendant danger. the face of a known Affirmed. Jr., J., Holbrook,

D. E. concurred. (dissenting). Cavanagh, J. defendant with the crime of felonious charged objection MSA 28.661. Over the counsel, jury court trial instructed defense could find the defendant even they reckless, to have conduct was found wilful, the instruc- import The clear or wanton. People Dissent M. F. permit was to

tion to find the guilty upon finding negligence. of mere App (1975), Ames, 230 NW2d 360 interpret seems to the felonious statute as requiring something less than wilful or wanton *6 attempting however, case, conduct. That was to explain why guilty negligent a verdict of homi- necessarily cide inconsistent with one of felonious phrase, The rationale was that wilfully wantonly”, "but not or negligent simply homicide statute lessened the degree necessary of conduct for conviction. It clearly wilfully does not mean that one who drives wantonly guilty cannot be homi- cide. I am also convinced that the did not intend that a driver who causes a crippling injury subject be to conviction of a fel- ony. driving

When the felonious statute was enacted language 214, in 1931 PA much of its was taken driving verbatim from the reckless statute then already Legis- existence, 1927 PA 4.1 The clearly sought punish lature to reckless drivers crippling injuries who caused in a manner far penalty required more serious than the of those convicted of mere reckless While the ele- driving ments of the reckless statute could reason- ably interpreted negligence, to include contemporary commentary the courts and the in- terpreted driving the reckless and felonious driv- ing require statutes to wilful and wanton miscon- (1932), PAG, duct. 2 U Pet L J 51 1941-1942, No provided: PA 1 1927 4§ "Any person upon highway carelessly who drives heedlessly rights or wilful wanton of the or others, circumspection speed or without due caution and and at a likely in a manner property, be as so to or be to of reckless conviction shall punished provided fifty-five as in section of this act.” 530 since enact- has occurred Nothing p 203. change to driving of the

ment interpretation.2 possess which reck- In other jurisdictions several the same as the essentially less statutes origi- statute and language in our felonious statute, have con- the courts nal reckless finding of at least require the statutes strued Sisneros, v 42 NM State culpable negligence. gross, Roberson, 240 v State (1938), NC 500; 82 274 P2d Tjaden, State (1954), 745; NW2d SE2d Forrey, 1955), 172 PA Commonwealth (ND, Rossman, (1952), State Super 92 A2d (1936). I agree with SD 268 NW Oregon Supreme Court: which reads part "That circumspection and at a due 'or without caution

speed in manner so as *7 could be person property’ con- endanger any other v simple negligence. Neessen Arm- to describe strued 56, 57; 378, 1931, Barkley 239 N.W. strong, State, 1932, 213 Iowa State, 309, 54 Kirk SW2d 165 Tenn. However, agree 47 App. Ala. So. 2d driving regard the statute reckless those courts which negligence to consti- requiring more than as tute a violation. requirement statutory likely to endanger or be conduct to make the statute the intention indicates culpable than applicable only the conduct was statute, 262, 1, By was amended PA reckless punish MSA 9.2326 continued into two sections: jail days $100 fine conviction of reckless ment of 9.2326(2) 257.626b; punishment driving, added while MCLA jail days of careless or $100 fine conviction unchanged. language was left The felonious statute’s Legislature thought encom statute Had the no reason passed to add felonious there would have been careless Moreover, similarly amend the failure the new section. acquies persuasive Legislature’s original interpretation of the felonious cence in require proof of reckless misconduct. Dissent M. F. negligence.” Wilcox, embraced in simple State v (1959). 216 Or P2d

Whether or not there was sufficient evidence to find the reckless or grossly negligent driving which caused a crippling injury, the trial court’s instruction was prejudicial error. I would reverse.