People v. Lovett

J. H. Gillis, J.

Defendant appeals from his plea-based conviction of two counts of assault with intent to do great bodily harm less than murder. MCL 750.84; MSA 28.279. Four issues are raised for our consideration.

The case arises out of a shooting incident. Defendant fired a pistol at Morris Cheatham but the bullet missed him and hit Troy Barbier, who was standing across the street.

Defendant first attacks the doctrine of "transferred intent”, claiming it unconstitutionally shifts the burden of proof to the defendant because intent is presumed.

The doctrine of transferred intent has been explained as follows:

"In the unintended-victim (or bad-aim) situation— where A aims at B but misses, hitting C — it is the view of the criminal law that A is just as guilty as if his aim had been accurate. Thus where A aims at B with a murderous intent to kill, but because of a bad aim he hits and kills C, A is uniformly held guilty of the murder of C. And if A aims at B with a first-degree-murder state of mind, he commits first degree murder as to C, by the majority view. So too, where A aims at B with intent to injure B but, missing B, hits and injures C, A is guilty of battery of C.” LaFave & Scott, Handbook on Criminal Law, ch 3, § 35, p 252-253.

The doctrine has been applied in Michigan in facts very similar to those in the case at bar. In People v Hodges, 196 Mich 546; 162 NW 966 (1917), the defendant was involved in a fight with one Honsinger. Several hours later the defendant entered a bar, pointed a revolver at Honsinger and, on the second attempt, fired. The bullet missed Honsinger and struck a bystander in the shoulder. Defendant was charged with assault with intent to kill the bystander and was convicted by a jury of assault with intent to do great bodily harm less than murder. The Supreme Court affirmed the conviction relying upon the doctrine of transferred intent.

Defendant claims that the doctrine is based on an impermissible presumption of intent. This is not true. Before defendant can be convicted it must first be shown that he had the intention to cause great bodily harm to someone. Merely because he shot the wrong person makes his crime no less heinous. It is only necessary that the state of mind exist, not that it be directed at a particular person. See State v Gardner, 57 Del 588; 203 A2d 77 (1964), Medina v People, 133 Colo 67; 291 P2d 1061 (1956).

Here, defendant admitted he shot at Cheatham intending to hurt him but not to kill him. This is the requisite mens rea of the crime of assault with intent to do great bodily harm less than murder. People v Montgomery, 43 Mich App 205; 204 NW2d 82 (1972).

Defendant also claims that he cannot be convicted of two counts of assault since he only did a single act with specific intent to injure one person.

The cases are split on this issue. Some states hold that where a single shot is fired at a group of people there is only one offense.¹ Other states have held that, with respect to crimes against persons such as assault, "although there may be but one act pr intent, there are as many crimes as there are persons affected” as victims. People v Plumlee, 177 Cal App 2d 224, 227; 2 Cal Rptr 84 (1960).²

In Michigan there appears to be no case which completely resolves this issue. In People v Raher, 92 Mich 165, 166; 52 NW 625 (1892), the Supreme Court stated:

"It has been held that where a prisoner fired a gun in the direction of a crowd he was guilty of an assault upon each. State v Nash, 86 NC 650; State v Myers, 19 Iowa, 517; Smith v Com, 100 Penn St 324.”

However, in People v Ochotski, 115 Mich 601, 610; 73 NW 889 (1898), a contrary statement was made when the Court, quoting from Bishop on Criminal Law, said the following:

"If one, by a single volition, should discharge into a congregation of people a firearm loaded with peas for shot, and eách of 50 different persons should be hit by a pea, it would be startling to affirm that he could be punished for assault and battery 50 times.”

Neither of these cases involved the precise issue before this Court. In Raher defendant fired a gun at a group of people, injuring one of them. The issue was whether it had to be shown that defendant had specific intent to harm the person hit. The Court held that it was only necessary that the defendant have specific intent to cause great bodily harm to one of the people in the group. While the Court relied upon the theory that there are as many assaults as there are victims, the defendant in that case only faced a single count. Hence, the quoted statement is only dictum.

In Ochotski, the defendant, in the course of a single fray, delivered separate blows to two people. The Court held that defendant could be charged with two assaults because they involved distinct "volitions”. This case has been cited for the proposition that Michigan does not subscribe to the "as many crimes as victims theory”. See People v Cronk, 9 Mich App 606, 612, fn 5; 157 NW2d 802 (1968). However, since the case involved multiple blows the above quotation from Bishop must also be considered dictum

While all charges arising out of a single transaction must be tried at one time, People v White, 390 Mich 245; 212 NW2d 222 (1973), a person, by a single act, can violate more than one criminal statute and thus be found guilty of multiple offenses. People v Hanna, 85 Mich App 516; 271 NW2d 299 (1978).

Where crimes against persons are involved we believe a separate interest of society has been invaded with each victim and that, therefore, where two persons are assaulted, there are two separate offenses.

Furthermore, even though the doctrine of transferred intent is involved in this case the result is not altered. In People v Carlson, 37 Cal App 3d 249; 112 Cal Rptr 321 (1974), defendant killed his pregnant wife and was found guilty of manslaughter with respect to her death. The court indicated that, assuming defendant had no intention of killing the fetus, he could, through the application of the doctrine of transferred intent, be found criminally liable for both his wife’s death and the death of the fetus:

"Under the rationale of the cases cited there can be no doubt that the doctrine of 'transferred intent’ applies even though the original object of the assault is killed as well as the person whose death was the accidental or the unintended result of the intent to kill the former. * * * [E]ach victim of the attack is to be viewed individually and without regard to which in fact died.

"Accordingly, in the present case in the application of the doctrine of transferred intent, the law would transfer defendant’s felonious intent to kill his wife to the fetus and the criminality of defendant’s act toward the fetus would be the same as that directed to his wife. Therefore, under the doctrine of transferred intent if defendant was guilty of the killing of his wife without malice, i.e., voluntary manslaughter * * *, he would normally be guilty of the voluntary manslaughter of the fetus.” 37 Cal App 349, 357.³

Applying this rationale to the instant case we conclude that defendant was properly found guilty of two counts of assault with intent to do great bodily harm less than murder.

The third issue raised by defendant concerns the voluntary nature of defendant’s plea of guilty to the second charge. Defendant contends that because the doctrine of transferred intent was not explained his plea was not knowingly and understandingly made.

The trial court is required to inform the defendant and determine that he understands the general nature of the charge. The judge is not obligated to explain the elements of the offense. It would be unrealistic to impose on the judge the obligation to impart to a defendant the substantive law applicable to his case. Guilty Plea Cases, 395 Mich 96, 115, 116; 235 NW2d 132 (1975).

Here, the trial court informed defendant that he was charged with assaulting Troy Barbier with intent to do great bodily harm less than murder. Defendant replied affirmatively when asked whether he understood the charge and the nature of the charge. Thus, the judge properly complied with the requirements as set forth in Guilty Plea Cases, supra.

Defendant’s final claim of error concerns the manner in which defendant’s plea was taken. The trial court asked defendant to explain the factual basis of the plea before informing him of his constitutional rights.

While the better practice would be to advise defendant of his rights before eliciting the factual basis of the plea, in People v Peterson, 62 Mich App 258; 233 NW2d 250 (1975), the reverse sequence was held not to constitute reversible error.

Affirmed.

M. J. Kelly, P.J., concurred.

1 See annotations, 2 ALR 606; 20 ALR 341; 113 ALR 222.

2 See also, State v Harris, 78 Wash 2d 894; 480 P2d 484 (1971), rev’d on grounds of collateral estoppel, 404 US 55; 92 S Ct 183; 30 L Ed 2d 212 (1971), (three persons injured, two of them fatally, by explosion of a bomb), Gordon v State, 503 P2d 917 (Okla 1972), State v Taylor, 185 Wash 198; 52 P2d 1252 (1936), State v Fredlund, 200 Minn 44; 273 NW 353 (1937), People v Brannon, 70 Cal App 225; 233 P 88 (1924).

3 Because of an anomoly of law defendant escaped liability for the death of the fetus. California has amended its laws to make murder of a fetus a crime. However, no similar provision was made for manslaughter. Hence, had defendant been found guilty of murdering his wife he would also have been guilty of murdering the fetus. Since he was only found guilty of manslaughter, no crime was committed against the fetus. The court also rejected the prosecution’s attempt to apply the felony-murder rule.