PEOPLE
v.
OLARY.
Calendar No. 20, Docket No. 52,018.
Supreme Court of Michigan.
Decided October 6, 1969.*562 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Walter W. Turton, Prosecuting Attorney, for the people.
William R. Walsh, Jr., for defendant.
DETHMERS, J.
Defendant was convicted by jury verdict in a justice of the peace court of the crime of cruelty to animals in violation of CL 1948, § 752.21 (Stat Ann 1962 Rev § 28.161). He was there sentenced to 2 years' probation and to pay fine and costs of $79.75. He took an appeal to circuit court and, as provided by law, had a trial de novo there before a jury. A verdict of guilty was again returned and the circuit court imposed a sentence to serve 75 days in the county jail and pay costs of $75. On appeal therefrom to the Court of Appeals, it affirmed the circuit court judgment and sentence. From that, defendant's appeal is here on leave granted. 381 Mich. 777.
Two questions are raised on this appeal by defendant: (1) whether the proofs sustain a verdict of guilty of cruelty to animals under the statute and, particularly, whether proof of failure to provide medical treatment for cows, as needed, establishes such guilt; (2) whether it was lawful for the circuit court, upon conviction at the de novo proceedings in *563 that court, to impose a greater sentence than that previously pronounced by the justice of the peace.
The statute making cruelty to animals a crime reads as follows:
"Whoever overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, cruelly beats, mutilates, or cruelly kills, or causes or procures to be so overdriven, overloaded, driven when overloaded, overworked, tortured, tormented, deprived of necessary sustenance, cruelly beaten, mutilated, or cruelly killed, any animal, and whoever having the charge or custody of any animal, either as owner or otherwise, inflicts unnecessary cruelty upon the same, or wilfully fails to provide the same with proper food, drink, shelter, or protection from the weather, shall, for every such offense, be punished by imprisonment in jail not exceeding 3 months or by fine not exceeding 100 dollars, or by both such fine and imprisonment."
This is a misdemeanor.
The warrant charged defendant as follows:
"Count 2. That George Olary, late of the township of Emmett, county of St. Clair and State of Michigan, being the owner of a herd of cattle inflicted unnecessary cruelty upon the same, and wilfully failed to provide the same with proper food, drink, shelter or protection from the weather, contrary to CL 1948, § 752.21 (Stat Ann 1962 Rev § 28.161)."
Witnesses for the people at the circuit trial were an inspector for the humane society, a deputy sheriff, and a veterinarian. They saw a lame, injured, disabled, and emaciated cow on defendant's farm that appeared to have been beaten and had a puncture wound of the stifle joint and other wounds that looked like they had been caused by forceful pressure on the cow's side and back with a pitchfork. *564 An abscess had formed at one puncture wound which the veterinarian estimated had been developing for a period of from 30 to 45 days. Witnesses also saw, lying in the pasture there, the emaciated bodies of 2 dead cows, partially decayed, which had been beaten and abused, covered with abrasions and dead for some length of time. They talked with defendant at the time of their visit at his farm and he told them that the cows had been well just a short time before. The witnesses said that the evidences were such that this could not have been true. He also told them, when asked why the cattle were in the shape they were in, that the cows had been fighting and that two had died but that he did not know the cause of death. Defendant testified at trial, however, that enemies of his had beaten and injured the cows. He said that he had not called a veterinarian nor treated or caused the injured cows to be treated nor placed in the barn. He just left them in the pasture. It did appear that there was ample pasturage and water for these and defendant's other cattle.
Defendant, on this appeal, argues that there was no evidence that defendant had caused the injuries to the cows, that the Court of Appeals has upheld the conviction on the theory that, regardless of who inflicted the injuries, defendant was guilty of cruelty to animals by his inattention to the condition of the animals and failure to provide them with medical treatment, but that the statute does not, in its definition of cruelty, include failure to give medical attention.
Defendant also says that to hold defendant's inattention to constitute a violation of the statute would amount to permitting a criminal conviction for action or inaction which an advance reading of the statute would not have informed defendant was a criminal offense.
*565 We think, however, that the record, as briefly sketched above, is ample to support a finding of cruelty consisting of conduct which defendant, a farmer, could well have realized was cruel and which the jurors readily recognized as such. We think the conviction lawful and proper.
Defendant had a right to take an appeal from justice to circuit court. Such appeal calls for trial de novo in the circuit court. This the defendant had before a second jury. That appeal amounted to a vacating and superseding of the judgment appealed from and placed the case within the circuit court jurisdiction to be proceeded in as if it were an original proceeding in that court. People v. Underwood (1920), 209 Mich. 348. As said in People v. Powers (1935), 272 Mich. 303, about an appeal from justice to circuit court in a criminal case:
"The defendant, however, had a right to appeal * * * and, when he did so, he conferred jurisdiction upon the circuit court to try the case anew and render judgment thereon as provided for in the statute."
The sentence here imposed in circuit court was within the limits provided in the governing statute above quoted. The fact of a lesser previous sentence by the justice of the peace, which had been vacated by the appeal to the circuit court, in no way limited the circuit court powers to fix sentence at any amount permitted by that statute.
In this connection we are aware of the decisions and opinions handed down by the Supreme Court of the United States on June 23, 1969, in the combined cases of North Carolina v. Pearce and Simpson v. Rice (1969), 395 U.S. 711 (89 S. Ct. 2072, 23 L. Ed. 2d 656). These are State cases in which convictions in trial courts were later set aside by State appellate courts because they were held to have been the *566 product, in part, of procedures which represented denial of Federal constitutional rights. Accordingly, the cases were remanded to the trial courts from which they had come, for retrial, and, upon second convictions, the original sentencing trial courts imposed harsher sentences than the first. While it appears that a majority of the Supreme Court did not view the increase of sentence as amounting to double jeopardy or denial of equal protection, they did see, in such situation, the possibility of violation of due process of law. It is said in one of the opinions that for a trial court to follow an announced practice of imposing heavier sentence as punishment for defendant's having pursued his constitutional rights and getting his original conviction set aside because of constitutional or even other errors, would render an appeal on the part of the accused hazardous and that such course would be vindictive and unconstitutional. A court may not place such a price on an appeal. The opinion goes on to say, however, that the prevalent modern philosophy of penology is that the punishment should fit the offender and not merely the crime. Then the rather amazing requirement seems to be expressed that, if a greater sentence is imposed after the second conviction, the sentencing judge must cause to be placed in the record his reasons for so doing, based on conduct of the defendant occurring after the first sentencing or, at least, on subsequent information coming to the judge after the first sentence.
Whatever may be thought of such a holding and requirement, especially in those cases in which the judge could have had no knowledge, at time of the second sentence, that such a requirement was later to be announced by the United States Supreme Court, at all events it has no application here. The differences *567 between the cases under consideration by that court and the instant one are numerous. In the first place, the cited cases are those in which the first convictions were improperly obtained, reversed on appeal for constitutional or other error, and then remanded for a second trial in the same court. There it could be said that if defendant had been properly tried the first time and convicted, his sentence undoubtedly would have been the same as was imposed on him and that, therefore, with errors and violations of his constitutional rights having occurred which contributed to his first conviction, the harsher second sentence would amount to penalizing him for appealing and seeking a fair and valid trial. That this could give rise to a question of whether defendant had been accorded due process is evident. Here, under Michigan procedure then in effect, no such thing has happened. Defendant was convicted in justice court, took an appeal as of right to circuit court in which the question of possible errors in the first trial is not considered, but a trial de novo, without regard to the first, is accorded defendant. He sought de novo proceedings in circuit court and got it, both as to trial and sentence. Second, the original sentence was imposed by a justice of the peace, not required to be legally trained, and the second sentence was by a circuit judge, a duly licensed lawyer, after report to him, as provided by statute, by the probation officer as to defendant's background, record and attitude, to enable the circuit judge to fit the punishment to the offender. This benefit the justice of the peace did not have. An understanding of all these circumstances and applicable Michigan practice and procedure makes it clear that nothing in the nature of judicial vindictiveness or an attempt to punish for the temerity of taking an appeal and establishing error in the first trial is involved in this *568 case. Even in cases of felonies, in which jurisdiction to try rests only with the circuit court and the first trial occurs there, the judge is not required to incorporate in the records his reasons for meting out the punishment he did, nor is that the practice in this State. There was, then, no reason here for the circuit judge to place in the record his reason for a different second sentence because he had not imposed the first one, but was merely doing, within the limits of the statute, what he, as a law-trained judge with the benefit of probation officer's report, thought just and proper. Neither this Court nor any other has occasion to call that into question.
Affirmed.
T.E. BRENNAN, C.J., and KELLY, BLACK, and ADAMS, JJ., concurred with DETHMERS, J.
T.G. KAVANAGH, J. (dissenting).
This is not a pleasant case. Several of his cows were cruelly injured and died, and the 66-year-old defendant's bizarre explanation that gangsters in the employ of his divorced wife inflicted the injuries is incredible.
It would be more comfortable to affirm this misdemeanor conviction and righteously approve the $75 cost exaction and the 75-day sentence.
But the point of law raised by this appeal is more important than our sensibilities.
At the close of the people's case the defense moved for dismissal of the charges on the ground that the record contained no evidence of the defendant's treatment of the cows and hence no proof of cruelty.
The trial court ruled that since the defendant was the owner of the cows and since the injuries to the cows were evident to the naked eye and the defendant must have seen this condition, it was a reasonable inference that he was responsible for not calling *569 a doctor for the injured cows. The court then ruled that it was "inflicting unnecessary cruelty when you see a cow obviously suffering from open wounds and don't either put her out of her misery or call the doctor to do so or attempt to treat her" and denied the motion.
A majority of the Court of Appeals panel held the trial judge thereby committed no error. (10 Mich. App. 640, 643.) We do not agree.
We think the dissent of Judge LEVIN[1] adequately and correctly states the law. We adopt it as our own. The quoted statute[2] does not impose a duty on the owner or custodian of animals to provide medical attention for them under pain of conviction for cruelty.
We would hold that the trial court should have dismissed the charges at the close of the people's case.
In view of our holding on this question we would deem it unnecessary to consider the other question raised by the appellant.
We would set aside the conviction and order defendant discharged.
T.M. KAVANAGH, J., concurred with T.G. KAVANAGH, J.
NOTES
[1] 10 Mich. App. 640, 644-650.
[2] CL 1948, § 752.21 (Stat Ann 1962 Rev § 28.161).