PEOPLE
v.
JACKSON
Docket No. 72948.
Michigan Court of Appeals.
Decided January 23, 1985.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy *285 Chief, Civil and Appeals, and Jan J. Raven, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Derrick A. Carter and Clory P. Uddyback), for defendant on appeal.
Before: V.J. BRENNAN, P.J., and CYNAR and C.W. SIMON, JR.,[*] JJ.
CYNAR, J.
Defendant was convicted of involuntary manslaughter, MCL 750.321; MSA 28.553, and child cruelty, MCL 750.136; MSA 28.331, after a bench trial. He was sentenced to from 5 to 15 years for manslaughter and from 32 months to 4 years for child cruelty. Defendant now appeals to this Court as of right.
Defendant's first claim is that the evidence of gross negligence is not sufficient to support his conviction for manslaughter. Gross negligence for the purpose of involuntary manslaughter is defined in People v Orr, 243 Mich 300, 307; 220 NW 777 (1928). The factors which must be shown are:
"(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another.
"(2) Ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand.
"(3) The omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another." Orr, supra, p 307.
This does not require that defendant must be personally aware of the danger or that he knowingly and consciously created the danger. The test only requires the danger to be apparent to the ordinary mind. Orr, supra, p 307; People v Sealy, *286 136 Mich App 168; 356 NW2d 614 (1984). Personal knowledge is not part of the test.
The record in this case shows that there was sufficient evidence to support the court's finding of gross negligence. The child was in defendant's care. It was a situation which required ordinary care and diligence. Defendant had the ability to exercise ordinary care. He failed to use ordinary care. He struck the child on the head with a hard object and shook the child so hard that the infant's brain was injured. The infant died because of swelling as a direct result of the trauma. The testimony supports a finding of gross negligence.
Defendant also claims that the trial court's findings do not satisfy GCR 1963, 517.1. It is not clear exactly how specific findings must be to satisfy GCR 1963, 517.1. Compare People v Davis, 126 Mich App 66; 337 NW2d 315 (1983), to People v Taylor, 133 Mich App 762; 350 NW2d 318 (1984), lv gtd 419 Mich 879 (1984). However, even under the more stringent requirements of Davis, supra, the findings by the able trial judge in this case were sufficient.
Defendant next claims that cruelty to children, MCL 750.136; MSA 28.331, is a specific intent crime. He suggests that, because specific intent to cruelly punish the victim was not shown, his conviction must be reversed. This contention is without merit. Case authorities indicate that the nature of the punishment, regardless of the intent, determines whether or not the crime of child cruelty has been committed. "It is sufficient to show that the punishment was cruel and unreasonably severe, and such as in its very nature would negative the idea of good faith on the part of the parent." People v Green, 155 Mich 524, 533; 119 NW 1087 (1909); People v Alderette, 132 Mich *287 App 351; 347 NW2d 229 (1984). Specific intent is not an element of the crime of child cruelty.
Defendant's final claim is that the phrase "cruelly and unlawfully punishes" in MCL 750.136; MSA 28.331 is unconstitutionally broad and impermissibly vague. A statute may be challenged for vagueness on three grounds:
"1. It does not provide fair notice of the conduct proscribed.
"2. It confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed.
"3. Its coverage is overbroad and impinges on First Amendment freedoms." People v Howell, 396 Mich 16, 20; 238 NW2d 148 (1976).
The statute provides fair notice of the conduct which is proscribed. A term not defined in a statute is given its ordinary meaning. People v Webb, 128 Mich App 721, 727; 341 NW2d 191 (1983); People v Biegajski, 122 Mich App 215; 332 NW2d 413 (1982), lv den 417 Mich 1080 (1983). "Punishment" and "cruelty" have plain, common and ordinary meanings readily and easily understandable to people of ordinary intelligence. Cf., Webb, supra, p 727; Biegajski, supra, p 227. The term "cruelly or unlawfully punishes" gives a person of ordinary intelligence fair and adequate notice of the conduct proscribed by the statute.
The statute does not confer unlimited, unstructured discretion to determine whether an offense has been committed. We look at the statute in light of the facts of the case at hand. Howell, supra. We note that this statute has been construed in other cases. People v Loomis, 161 Mich 651; 126 NW 985 (1910); People v Ogg, 26 Mich App 372; 182 NW2d 570 (1970); People v Anderson, 119 Mich App 325; 326 NW2d 499 (1982). Viewing *288 the statute in context of the cases construing the statute, we do not believe a trier of fact has unbridled discretion to determine whether the statute has been violated.
Finally, we cannot conclude that the statute is overly broad and impinges a constitutionally protected area. A parent's right to discipline a child is not absolute and inviolable. It is circumscribed by the welfare of the child. Green, supra, p 532.
Defendant's conviction is affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.