People v. McMaster

Mackenzie, J.

(dissenting). I respectfully dissent from the holding of the majority that felonious assault requires proof of a specific intent which may be negated by evidence of defendant’s voluntary intoxication.

The issue of the requisite intent for either simple criminal assault or felonious assault was recently explored by our Supreme Court in People v Joeseype Johnson, 407 Mich 196, 210; 284 NW2d 718 (1979), the majority being able to agree only on the following:

"1) 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),
"2) the jury should be instructed that there must be either an intent to injure or an intent to put the victim in reasonable fear or apprehension of an immediate battery,
"3) the instruction in Johnson was deficient in two respects: it failed adequately to inform the jury of the intent requirement and it neglected to present the alternative 'reasonable apprehension of receiving an immediate battery’ form of felonious assault; the jurors in Ring should be instructed that defendant can be convicted if he intended to injure the victim or put him *173in reasonable apprehension of receiving an immediate battery.
"We reverse Johnson and remand for a new trial and affirm the trial court’s decision in Ring as modified and remand for trial.
"Johnson did not raise an intoxication defense and the question whether assault or felonious assault are specific intent crimes for the purpose of the voluntary intoxication defense is not raised by the facts and has not been briefed or argued and is not before us; we intimate no opinion on that question.”

The fact that the Court avoided labelling assault as a specific intent crime and declined to decide whether voluntary intoxication is a defense leads me to conclude that Joeseype Johnson did not foreclose consideration of that issue.

In People v Walker, 38 Mich 156, 158 (1878), Justice Cooley stated what has become the rule for determining the circumstances under which voluntary intoxication will be a defense;

"While it is true that drunkenness cannot excuse crime, it is equally true that when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist.”

In Walker, Justice Cooley cited Roberts v The People, 19 Mich 401 (1870), as the source of the rule. In Roberts, the defendant was convicted of assault with intent to murder for firing two shots at the complainant, both of which missed him. In considering the issue, the Court began by accepting the proposition that drunkenness would not excuse the assault. Roberts, supra, 416. In People v Comstock, 115 Mich 305, 312; 73 NW 245 (1897), where defendant’s conviction for intentional undue extension of credit was reversed for failure to instruct on specific intent to embezzle, cheat, or *174defraud, the Court remarked as follows regarding specific intent:

"It is argued that the general criminal intent evinced by the violation of § 52 is sufficient. In crimes of violence which do not involve a specific intent, the general intent is sufficient; as in murder, when the malice which will justify a conviction need not include a design to take life. But in burglary, where there must be an intent to commit a felony, and in larceny, where there must be an intent to deprive the owner of his property, the specific intent must appear, and, although the breaking or taking of personal property be unlawful, amounting possibly to a trespass, the offense is not made out if the specific intent be wanting; as when one broke and entered intending to commit a simple assault and battery. Voluntary intoxication may be a defense to persons charged with some offenses, where it is of a degree which enables a jury to say that the accused was incapable of forming the specific and requisite intent. Thus an. assault and battery is not excused by voluntary drunkenness, but the more aggravated offenses depend upon the accompanying intent prescribed in each case, and anything that tends to show its absence is a defense. A man could not be convicted of assault with intent to murder if his design was shown to be merely to deprive his victim of an arm or leg, to cut off his ear, or put out an eye. In either of these cases it would be competent for the defendant to prove that his actual and only intent was another than that charged, although unlawful and even criminal; and a charge that intent to commit rape might be found notwithstanding it was made clear that the offense, if completed, would have been no more than incest, upon the ground that the attempt to commit incest was an unlawful and criminal act, and therefore no excuse, would be error. The foregoing principles are fully supported by our own decisions. Roberts v People, 19 Mich 414; People v Sweeney, 55 Mich 586; People v Lilley, 43 Mich 521; People v Umlauf, 88 Mich 274.” (Emphasis supplied.)

*175Both the lead opinion in Joeseype Johnson written by Justice William:s and the opinion written by Justice Levin discuss four Michigan cases to consider in determining the requisite intent for simple assault, as well as felonious assault: People v Doud, 223 Mich 120; 193 NW 884 (1923), People v Burk, 238 Mich 485; 213 NW 717 (1927), People v Counts, 318 Mich 45; 27 NW2d 338 (1947), and People v Sanford, 402 Mich 460; 265 NW2d 1 (1978). As is obvious from the divergent views expressed in the three opinions in Joeseype Johnson, the above four cases can be analyzed to support or detract from the theory that assault is a specific intent crime. Critically, however, none of the cases dealt with a factual situation where a defendant raised voluntary intoxication as a defense. Where voluntary intoxication has been raised as a defense, this Court has followed the rule in Burk that only general intent is required; thus, defendants were not allowed to negate that intent by introducing evidence of voluntary intoxication. People v Richard Johnson, 42 Mich App 544; 202 NW2d 340 (1972), People v Rohr, 45 Mich App 535; 206 NW2d 788 (1973), People v Clark, 48 Mich App 645; 210 NW2d 906 (1973).

I agree with the lead opinion in Joeseype Johnson that an assault is committed whenever a defendant does an unlawful act which either constitutes an attempt to commit a battery upon his victim or results in placing the victim in reasonable fear of an immediate injury. The fact that menacing — placing the victim in reasonable fear of an immediate injury — was recognized in Sanford as an assault does not, in my view, require a showing that the accused "specifically” intended to scare his victim.

"The significance of this holding, obviously, is that *176the second kind of criminal assault focuses on whether the assaultee was by defendant’s acts put 'in reasonable apprehension of receiving an immediate battery’, and, if he was, it would be immaterial whether or not the defendant intended to do bodily injury to the assaultee.” Joeseype Johnson, supra, 223.

If, as suggested by the opinion of Justice Ryan and Justice Fitzgerald in Joeseype Johnson, to be convicted of the menacing type of assault the accused must "specifically” intend to scare his victim, why is it necessary that the victim’s fear of immediate injury be reasonable? The accused’s intentional act, such as aiming a gun at his victim and threatening to shoot, should be sufficient without an instruction that the accused must have intended to scare the victim.

From an analysis of Michigan law prior to Joeseype Johnson, I conclude that neither simple assault nor felonious assault was viewed as a crime requiring proof of a specific intent. The focus of the courts was not whether a defendant intended the particular consequences which resulted from his actions. The critical inquiry was whether a defendant intentionally attempted or threatened to do violence upon the person of another and either (1) had the ability to carry out the threat or (2) his conduct reasonably placed the victim in fear of an immediate battery. It is not and should not be necessary to show that a defendant intends to cause his* victim any particular bodily harm. As a matter of policy, a defendant should be liable for an assault where he actually intends no bodily harm, but threatens the victim, who is then placed in reasonable fear of harm.

Because an assault is defined as either an attempt to commit a battery or a threat of violence which places the victim in reasonable fear of *177bodily injury, it is difficult and perhaps anomalous to fit assault neatly into either the general or specific intent category. Indeed, the exact meaning of the terms "general” and "specific intent” has caused considerable difference of opinion; see Justice Levin’s opinion in Joeseype Johnson as opposed to Justice Ryan’s opinion. If a specific intent crime is viewed as requiring that the actor intend the particular consequences which result, then under either definition in Joeseype Johnson, assault could be construed as a specific intent crime. However, since assault is equally capable of being defined in terms of the illegal act itself with the present or apparent ability to carry it out, a general intent only is required.

Notwithstanding, one should not lose sight of why these concepts evolved. According to Chief Justice Traynor of the Supreme Court of California, writing for the majority in People v Hood, 1 Cal 3d 444, 455-457; 82 Cal Rptr 618; 462 P2d 370, 377-378 (1969):

"The distinction between specific and general intent crimes evolved as a judicial response to the problem of the intoxicated offender. That problem is to reconcile two competing theories of what is just in the treatment of those who commit crimes while intoxicated. On the one hand, the moral culpability of a drunken criminal is frequently less than that of a sober person effecting a like injury. On the other hand, it is commonly felt that a person who voluntarily gets drunk and while in that state commits a crime should not escape the consequences. (See Hall, General Principles of Criminal Law [2d ed, 1960], p 537.)
"Before the nineteenth century, the common law refused to give any effect to the fact that an accused committed a crime while intoxicated. The judges were apparently troubled by this rigid traditional rule, however, for there were a number of attempts during the early part of the nineteenth century to arrive at a more *178humane, yet workable, doctrine. The theory that these judges explored was that evidence of intoxication could be considered to negate intent, whenever intent was an element of the crime charged. As Professor Hall notes, however, such an exculpatory doctrine could eventually have undermined the traditional rule entirely, since some form of mens rea is a requisite of all but strict liability offenses. (Hall, Intoxication and Criminal Responsibility, 57 Harv L Rev 1045, 1049.) To limit the operation of the doctrine and achieve a compromise between the conflicting feelings of sympathy and reprobation for the intoxicated offender, later courts both in England and this country drew a distinction between the so-called specific intent and general intent crimes.
"Specific and general intent have been notoriously difficult terms to define and apply, and a number of textwriters recommend that they be abandoned altogether. (Hall, General Principles of Criminal Law, supra, p 142; Williams, Criminal Law — The General Part [2d ed, 1961] § 21, p 49.) Too often the characterization of a particular crime as one of specific or general intent is determined solely by the presence or absence of words describing psychological phenomena — 'intent’ or 'malice,’ for example — in the statutory language of defining the crime. When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent. There is no real difference, however, only a linguistic one, between an intent to do an act already performed and an intent to do that same act in the future.” (Footnotes omitted.)

In Hood, a case similar to the case at bar, the Court was confronted with the question of whether evidence of voluntary intoxication should be admissible to negate the intent required for an assault with a deadly weapon upon a peace officer. *179Concluding that simple assault and assault with a deadly weapon could be characterized as specific intent crimes or general intent crimes under the definitions of those terms, the Court opted to rest its decision on other considerations, to wit:

"A compelling consideration is the effect of alcohol on human behavior. A significant effect of alcohol is to distort judgment and relax the controls on aggressive and anti-social impulses. (Beck and Parker, The Intoxicated Offender — A Problem of Responsibility [1966], 44 Can B Rev 563, 570-573; Muelberger, Medico-Legal Aspects of Alcohol Intoxication [1956], 35 Mich St B J 36, 40-41.) Alcohol apparently has less effect on the ability to engage in simple goal-directed behavior, although it may impair the efficiency of that behavior. In other words, a drunk man is capable of forming an intent to do something simple, such as strike another, unless he is so drunk that he has reached the stage of unconsciousness. What he is not as capable as a sober man of doing is exercising judgment about the social consequences of ,his acts or controlling his impulses toward anti-social acts. He is more likely to act rashly and impulsively and to be susceptible to passion and anger. It would, therefore be anomalous to allow evidence of intoxication to relieve a man of responsibility for the crimes of assault with a deadly weapon or simple assault, which are so frequently committed in just such a manner. As the court said in Parker v United States, (1966) 123 US App DC 343, 359 F 2d 1009, 1012-1013, 'Whatever ambiguities there may be in distinguishing between specific and general intent to determine whether drunkenness constitutes a defense, an offense of this nature is not one which requires an intent that is susceptible to negation through a showing of voluntary intoxication.’ ” Hood, supra, 458. (Emphasis supplied.)

Holding that voluntary intoxication is no defense to simple assault or felonious assault would not alter the treatment of those assault crimes *180viewed as specific intent crimes, such as assault with intent to rob, assault with intent to murder, assault with intent to do great bodily harm less than murder, assault with intent to rape, etc. I agree with Justice Traynor’s conclusion in Hood that "[t]he difference in mental activity between formulating an intent to commit a battery and formulating an intent to commit a battery for the purpose of raping and killing may be slight, but it is sufficient to justify drawing a line between them and considering evidence of intoxication in the one case and disregarding it in the other”. Hood, supra, 458. (Footnote omitted.) See also People v Rocha, 3 Cal 3d 893; 92 Cal Rptr 172; 479 P2d 372 (1971), where the Supreme Court of California held that assault with a deadly weapon constituted a general intent crime and evidence of voluntary intoxication was not a defense.

In summary, even if assault is now viewed as a specific intent crime, I do not believe evidence of voluntary intoxication should be admissible to negate the intent requirement. The specific intent doctrine was only intended to be used to negate evidence of an intent beyond the consequences of bodily injury or fright resulting from an assault, such as where the assault was done with intent to murder or rape. It is inadequate to suggest that criminal responsibility be limited to a misdemeanor. MCL 750.233; MSA 28.430. Therefore, as defendant was convicted of felonious assault, I would hold the trial court’s failure to instruct on the defense of voluntary intoxication was harmless error.

The record indicates that defendant’s trial counsel failed to file the requisite 30-day notice of his intent to raise an insanity defense. MCL 768.20a; MSA 28.1043(1). The issue is whether this consti*181tuted a serious mistake and but for this mistake there was a great likelihood that defendant would not have been convicted. People v Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969), People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976).

In the factual setting therein, it appears that the failure to file notice of insanity was a serious mistake and that defendant was reasonably likely to have been acquitted but for this error. Statements in the record and testimony of defendant’s wife at trial indicate that defendant had a long history of chronic alcoholism and was prone to violence during bouts of severe intoxication. Therefore, assuming the notice had been filed and the defense presented, it was reasonably likely that defendant would have been found not guilty by reason of (alcohol-induced) insanity. Counsel’s explanation that he failed to file the requisite notice due to his client’s belief that the charge would be dropped remains unsubstantiated by any statement from the prosecutor’s office. I would reverse and remand for a new trial.