People v. Chatterton

102 Mich. App. 248 (1980) 301 N.W.2d 490

PEOPLE
v.
CHATTERTON

Docket No. 47649.

Michigan Court of Appeals.

Decided December 3, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Robert F. Davison, Assistant Prosecuting Attorney, for the people.

Rabette & O'Dea, P.C., for defendant.

Before: M.F. CAVANAGH, P.J., and D.E. HOLBROOK, JR. and J.H. PIERCEY,^[*] JJ.

J.H. PIERCEY, J.

On November 27, 1978, a pickup truck driven by defendant slid across the center lane of a slippery section of a five-lane highway and collided with an oncoming vehicle, seriously injuring an occupant of that vehicle. Defendant was subsequently charged with felonious driving, contrary to MCL 752.191; MSA 28.661, which provides:

"Every person who drives any vehicle upon a highway carelessly and heedlessly in wilful and wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property and thereby injuring so as to cripple any person, but not causing death, shall be guilty of the offense of felonious driving and upon conviction thereof shall be sentenced to pay a fine not exceeding one thousand [1,000] dollars or to imprisonment in the state prison not exceeding two [2] years or by both fine and imprisonment in the discretion of the court."

Testimony at the preliminary examination established that defendant was guilty of, at most, ordinary negligence in the collision. The parties stipulated for examination purposes that the victim's injuries were crippling within the meaning of the statute. The examining magistrate bound defendant over for trial, but the circuit judge granted defendant's motion to quash the information on the ground that a finding of ordinary negligence did not satisfy the statutory requirement that driving be "without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property". Plaintiff appeals from the order quashing the information.

We agree with the circuit judge that there must be a showing of something more than ordinary negligence resulting in crippling injury to warrant a charge under the felonious driving statute. In support of this premise we adopt the well-reasoned dissenting opinion by Judge M.F. CAVANAGH in People v Marshall, 74 Mich. App. 523, 528-531; 255 NW2d 351 (1977).

Affirmed.

M.F. CAVANAGH, P.J., concurred.

D.E. HOLBROOK, JR., J. (dissenting).

I dissent for the reasons set forth in Judge GILLIS'S majority opinion in People v Marshall, 74 Mich. App. 523; 255 NW2d 351 (1977), in which I concurred.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.