Defendant Good was convicted of a violation of the homicide statute, the same being section 324 of the Michigan penal code, Act No. 328, Pub. Acts 1931 (Stat. Ann. § 28.556). This statute reads:
"Any person who, by the operation of any vehicle at an immoderate rate of speed or in a careless, reckless or negligent manner, but not wilfully or wantonly, shall cause the death of another, shall be guilty of a felony, punishable by imprisonment in the State prison not more than five years or by a fine of not more than two thousand five hundred dollars."
Appellant's statement of facts is accepted by the people. At about 11:30 p.m., Good, who was employed as a night watchman, on his way to work, was driving north on Mt. Elliot avenue in the city of Detroit. He drove up behind a street car, which was waiting for a stop light, two blocks south of Farnsworth. When the signal changed, Good drove alongside the car as it started up and passed it. About half a block south of Farnsworth avenue, Good observed an automobile parked at the curb; he turned to the left to avoid it and drove through an unprotected safety zone, which was merely outlined on the pavement, striking Mrs. MacKenzie, who was standing therein with her 17-year old daughter. Mrs. MacKenzie's body was thrown *Page 113 ahead of Good's car and she died about an hour later in the Receiving Hospital. Good's lights and brakes, according to his testimony, were working well, and his windshield was clean. He was 52 years old, had been continuously employed at the same place of business for the last 13 years, except when it was shut down, and was a man of good character. After Good's conviction by the jury, the court ordered that he be placed upon probation for a term of five years under the following conditions:
"1. That said defendant shall not operate a motor vehicle.
"2. That said defendant shall make restitution in the sum of $385 payable as determined by the probation department, and any further sum later imposed by the court.
"3. That said defendant shall be committed to the Detroit house of correction and therein confined for a term of three months. It is hereby ordered by the court, that said term be suspended until the terms of probation are violated."
Two questions are raised in this appeal:
1. Appellant Good complains of the following instruction:
"If you find from the evidence in this case that this deceased person was standing in the highway and that the defendant drove his automobile against her, and that the reason he did drive his automobile against her was that he didn't see her, then I charge you that he is guilty of the negligence which it is necessary for the people to prove in this case."
The night on which the accident occurred was quite dark, the safety zone in which Mrs. MacKenzie and her daughter were standing was poorly lighted and Mrs. MacKenzie's clothing was dark *Page 114 and blended in with the surroundings. Appellant claims that, because of these circumstances, the jury should have been free to determine whether or not his failure to see Mrs. MacKenzie constituted negligence and that the court erred, therefore, in charging in effect that such failure was negligence as a matter of law.
We do not find any error in this charge. An automobile driver, whose view is not obstructed, is bound to see pedestrians who come within the range of his lights. SeeLett v. Summerfield Hecht, 239 Mich. 699; Haney v. Troost,242 Mich. 693, and Russell v. Szczawinski, 268 Mich. 112. These cases, it is true, involved collisions with large objects, such as trucks and other automobiles, but the same principle is applicable to the present situation where a pedestrian is involved. We are not unaware of the cases in which this court has held that failure to see unusual objects whose presence may not be anticipated, despite the exercise of due care, is not negligence as a matter of law. Martin v. J. A. Mercier Co.,255 Mich. 587 (78 A.L.R. 520) (hole in road); Marek v. City ofAlpena, 258 Mich. 637 (bump in road); Garrison v. City ofDetroit, 270 Mich. 237 (unlighted abandoned traffic signal), and Bard v. Baker, 283 Mich. 337 (unlawful overhanging load on truck). However, autoists are bound to anticipate that pedestrians may be present on the street.
While the court's charge left very little for the jury to determine with respect to defendant's negligence, the language of the charge, taken as a whole, is within the law of this State. People v. Dougherty, 232 Mich. 46.
2. The order conditioning probation partly on restitution was presumably entered under the authority of 3 Comp. Laws 1929, § 17373, as amended *Page 115 by Act No. 308, Pub. Acts 1931 (Stat. Ann. § 28.1133), which provides in part:
"The court may impose such other lawful conditions of probation, including restitution in whole or in part to the person or persons injured or defrauded, as the circumstances of the case may require or warrant, or as in its judgment may be meet and proper."
Appellant claims that this provision violates the due process clause of both Federal and State Constitutions, in that it does not provide for a hearing on the question of damages to be assessed, nor does it give a defendant an opportunity to interpose the defenses, such as the contributory negligence of a decedent, which are available to him in civil proceedings; also that the notice of a criminal prosecution is "not appropriate to a proceeding in which civil damages may be assessed."
The arguments of appellant are based upon the erroneous assumption that damages are "assessed" by the court when restitution is made a condition of probation. Such is not the case. No judgment is rendered for, nor could a writ of execution issue to enforce the collection of, the sum specified. A defendant in such instance is merely given the alternative of abiding by the conditions imposed or else suffering the imposition and execution of a sentence which ordinarily follows a verdict of guilty. This defendant was not deprived of any of his rights without due process; rather he was given the additional privilege of avoiding the usual penalty of his crime by the payment of a sum of money and the observance of the other conditions attached to his probation. Consequently it was not a deprivation of due process of law to deny defendant a hearing on the question of the amount of "damages" to be *Page 116 imposed as a condition of probation and the statute, section 17373, is ample notice of the possibility that such a condition might be imposed.
Probation is not a matter of right but rests in the sound discretion of the court. People v. Dudley, 173 Mich. 389. No claim is made that the trial court abused its discretion.
Subsequent to the oral argument, we requested counsel to submit briefs on the question of whether the order of the recorder's court, quoted supra, is valid.
The order provides that the defendant "shall be committed to the Detroit House of Correction and therein confined for a term of three months," which sentence is thereupon suspended "until the terms of probation are violated." We have been unable to find any authorization for such an order by the trial court. On the contrary, the provisions of the act relative to probation contemplate that imposition and execution of sentence shall await disposition of the matter of probation. 3 Comp. Laws 1929, § 17374 (Stat. Ann. § 28.1134), provides the procedure for revocation of the probation order and then declares:
"In case such probation order is terminated and revoked, the court may proceed to sentence such probationer in the manner and to the same penalty as it might have done if such probation order had never been made."
Section 17375, 3 Comp. Laws 1929 (Stat. Ann. § 28.1135), provides that upon termination of the probation period —
"The court may thereupon discharge the probationer from further supervision and enter judgment of suspended sentence, or extend the probation period, as the circumstances may require." *Page 117
The order is invalid because not in accordance with the statute.
The provision in 3 Comp. Laws 1929, § 17373, as amended by Act No. 308, Pub. Acts 1931 (Stat. Ann. § 28.1133), that as "a condition of probation, the court may require the probationer to be immediately imprisoned in the county jail for not more than sixty days," has no bearing on the validity of the order. The suspended sentence imposed in the instant case was not an immediate imprisonment as a condition of probation, but rather purported to be a final sentence. It should also be noted that this section permits incarceration as a condition of probation for a maximum period of 60 days, whereas in the present case a 90-day period was stated.
The order is invalid also because it permits the probation department to determine how restitution of the $385 shall be made by defendant. Section 17373, as amended, permits thecourt to impose the conditions of probation including restitution, et cetera, and contains no authorization for a delegation of this duty, in whole or in part, to the probation department. The probation department may act in this matter in, at most, an advisory capacity.
The court should in any event include within its order the specific purpose, terms and conditions of the payment of money by a defendant if such payment is made a condition of probation. This record is silent in this respect and, therefore, we are unable to say whether the payment ordered was or was not a proper condition of probation.
The order of the trial court is set aside and respondent is remanded for the entry of a correct order of probation or sentence.
BUTZEL, SHARPE, POTTER, CHANDLER, NORTH, and McALLISTER, JJ., concurred with BUSHNELL, J. *Page 118