298 N.W.2d 641 | Mich. Ct. App. | 1980
PEOPLE
v.
STARGHILL
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Michael Lehto, Assistant Prosecuting Attorney, for the people.
Maxwell & Sniderman (by Brenda J. Maxwell and Charles E. Rutledge), for defendant.
Before: DANHOF, C.J., and M.J. KELLY and G.R. CORSIGLIA,[*] JJ.
PER CURIAM.
On April 2, 1979, defendant was convicted of felonious assault, MCL 750.82; MSA 28.277, following a bench trial. The charge arose out of a confrontation between police officers and defendant near Olympia Stadium in Detroit. Defendant, leaving a parking space with the police in pursuit, drove forward into a police cruiser and then backed up directly towards a police officer who fired his weapon in self-defense. Defendant presented testimony that his transmission was worn out, causing unexpected "lunging".
The trial court in its decision from the bench on April 2, 1979, found that defendant did not intend *792 to run the officer down with his automobile but, nevertheless, was guilty of felonious assault because he participated in a high risk situation which caused the officer physical jeopardy placing him in fear. In reaching this decision the court ruled that felonious assault is not a specific intent crime.
On appeal, defendant argues the evidence does not support the court's decision and that felonious assault is a specific intent crime.
Before People v Joeseype Johnson, 407 Mich 196; 284 NW2d 718 (1979), the weight of authority in Michigan was that felonious assault was not a specific intent crime. People v Burk, 238 Mich 485, 489; 213 NW 717 (1927), People v Jordan, 51 Mich App 710, 718; 216 NW2d 71 (1974), People v Rohr, 45 Mich App 535, 536; 206 NW2d 788 (1973), People v Richard Johnson, 42 Mich App 544; 202 NW2d 340 (1972). The cases relied upon by defendant, People v Dozier, 39 Mich App 88; 197 NW2d 314 (1972), and People v Crane, 27 Mich App 201; 183 NW2d 307 (1970), were anomalous decisions rejected in People v Rohr and People v Richard Johnson, supra.
Joeseype Johnson, supra, held that there must be either an intent to injure or an intent to put the victim in reasonable fear or apprehension of immediate battery to sustain a conviction of felonious assault. 407 Mich 196, 210.
However, Joeseype Johnson was decided on October 29, 1979, after defendant's conviction. We decline to apply it retroactively in these circumstances. See People v Hampton, 384 Mich 669; 187 NW2d 404 (1971). Therefore, we review the trial court's decision under prior law.
Defendant also argues that the evidence does not support the court's findings. We will not reverse *793 unless, on the entire record, we are left with a definite and firm conviction that a mistake has been committed. GCR 1963, 517.1, People v White, 53 Mich App 51, 55; 218 NW2d 403 (1974), Tuttle v Dep't of State Highways, 397 Mich 44; 243 NW2d 244 (1976).
Under prior law, felonious assault was considered a simple assault with the use of a dangerous weapon converting it into a felony. People v Richard Johnson, supra. A simple criminal assault is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery. People v Sanford, 402 Mich 460, 479; 265 NW2d 1 (1978).
We are not persuaded that a mistake has been committed in the instant case. The trial court found defendant had the intent required to make out an ordinary assault. We conclude the evidence supports this finding.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
