People v. Schaub
People v. Schaub
Opinion of the Court
Defendant’s appeal is before us by an order of the Supreme Court that, in lieu of granting leave to appeal, remanded the case to this Court for consideration as on leave granted. 463 Mich 910 (2000). The issue presented on appeal is, in essence, whether the prosecution introduced sufficient evidence at the preliminary examination to require defendant to stand trial on the charge of child abandonment, MCL 750.135. After taking testimony at the preliminary examination, the district court dismissed the charge. The prosecution appealed to the circuit court and that court reversed the order of the district court and reinstated the charge against defendant. On application for interlocutory leave to appeal, this Court denied leave. Unpublished order of the Court of Appeals, entered October 9, 2000 (Docket No. 229502). After consideration of the merits of the appeal, we agree with defendant and reverse the circuit court’s order and remand the matter for further proceedings.
The charge against defendant of child abandonment stems from an allegation that defendant transferred
After hearing the witnesses’ testimony and the arguments of the parties, the district court dismissed the child abandonment charge against defendant. The district court found that the prosecution had not met its burden of proof to show evidence of the elements of child abandonment. Specifically, the district court found that the term “wholly abandoned” in the child abandonment statute indicated placing the child in a situation where there is no one to care for it, and con-
The prosecution appealed as of right to the circuit court, and that court reversed the district court’s order dismissing the child abandonment charge. The circuit court found that the district court erred in its interpretation of the child abandonment statute. According to the circuit court, “intent to wholly abandon” concerns only the defendant’s conduct and the defendant’s actions “must be analyzed without reference to the likelihood or unlikelihood that his child would befall harm at the hands of the prospective parents.” The circuit court concluded that the prosecution presented sufficient evidence on that element to bind over defendant for trial. In addition, the circuit court found that the element of exposure was adequately shown by defendant’s failure to protect his daughter from danger by failing to make reasonable inquiries into the moral and financial fitness of the prospective parents.
On appeal, defendant argues that the circuit court erred in reversing the district court’s dismissal of the child abandonment charge because the circuit court’s interpretation of the elements of child abandonment was incorrect. Specifically, the parties dispute whether the evidence established the elements of (1) exposure and (2) intent to wholly abandon. Ordinarily, the decision of the district court on a motion to bind over is reviewed for an abuse of discretion. People v Stone, 463 Mich 558, 561; 621 NW2d 702 (2001). However, here the decision to deny binding over defendant involved a determination by the district court that defendant’s alleged conduct did not fit within the scope of the child abandonment statute,
At the time that the alleged offense occurred, the child abandonment statute, MCL 750.135, provided:
Any father or mother of a child under the age of 6 years, or any other person who shall expose such child in any street, field, house or other place, with intent to injure or wholly to abandon it, shall be guilty of felony, punishable by imprisonment in the state prison not more than 10 years.
MCL 750.135 has remained basically unchanged since it was first interpreted in 1858, in Shannon v People, 5 Mich 71 (1858).
Here, with respect to whether defendant intended to wholly abandon the child, we agree with the circuit court that sufficient evidence was introduced to satisfy that element of the charged offense. The proofs showed that defendant sold his child to an undercover police officer for $10,000 cash and a note for $50,000, with the understanding that defendant did not retain any ability to visit the child or exercise his parental rights. The police officer testified that defendant was informed and agreed that the police officer’s “family” was planning to raise the child as their own, without any intervention by defendant. From this evidence it is reasonable to conclude that defendant intended to “renounce all care or protection of” the child. See id. Although defendant asked for the address where the child would be located, the record reveals that the reason that defendant requested that information was to cover up the sale, if the child’s mother returned from Texas and wanted to see her. It is clear from the evidence that defendant did not
However, we conclude that the evidence presented did not establish the element of exposure.
The connection in which this section stands in our statute, in the chapter entitled, “Of Offenses against the Lives and Persons of Individuals,” as well as the severity of the punishment, we think very clearly indicate that the exposure contemplated by this section must be such as may sub*118 ject the child to hazard of personal ipjury — such as may peril the life or health of the child, or produce severe suffering or serious bodily harm; and, hence, that to leave a child, with the intent wholly to abandon it, “in a house (or other place) where it would be certain to be cared for,” would not constitute the exposure contemplated by the statute. We can not suppose the legislature intended to inflict so severe a punishment, to protect “persons not parents or guardians from being burdened with the care and custody of children,” if they choose to assume that care and custody; or, in other words, from an unexpected demand upon their benevolence, from which they might rid themselves at any time by applying to the officers having charge of the poor. Such severity, for such a puipose, would be unprecedented in the history of legislation. On the other hand, it is perfectly clear that no actual injury need ensue from the exposure. Id. at 90.
The Court then looked further at the Legislature’s intent in passing the child abandonment statute, concluding that “[t]he object of the statute obviously was to meet the exposure in injury in limine; to prevent the hazard of injury, and to punish as a crime the act creating the hazard.” Id. at 91. The Court continued:
The question, therefore, upon this point, is simply this: Did the acts of the party leaving or abandoning the child, viewed in connection with the time, place, and all the accompanying and surrounding circumstances, subject the child to the hazard of such personal injury? If so, this is an exposure. . . .We do not intend, by this, to say that a bare possibility of injury would constitute the exposure; but the only safe and practical rule upon this point, we think, is this: If, from the time, place, and manner of leaving the child — its age, dress, the state of the weather, and all the circumstances surrounding and accompanying the transaction — the jury shall believe that there was reasonable ground to apprehend, or fear, that such injury might thereby happen to the child, then, if accompanied with the intent wholly to abandon, it is an exposure within the stat*119 ute, and the crime is complete; but if, judging from the like premises, there was no reasonable ground to fear or apprehend that such injury might occur, then the exposure required by the statute did not exist. This may be rendered more definite by saying, that if the child be left at such a time, in such a place, and under such circumstances, as would render a parent, or other person (to whom it is confided) of ordinary prudence and humanity, reasonably apprehensive of such injury to the child, then the hazard may be said to exist, and it is an exposure within the statute.
* * -15
No parent, or other person entrusted with the custody and protection of helpless infancy, can be permitted to divest himself of the responsibility which this trust imposes, until that custody and protection have been committed to or assumed by other hands. And if, in the attempt to throw off the responsibility, he abandons the child, he must be required first to see that there is at least a reasonable certainty that some other person will assume it before the risk of injury shall occur from the abandonment; he must be held to the highest degree of diligence. The safety of a human being depends upon his acts. The law extends its protection only to acts which are legal; he is in the performance of an illegal act — he has renounced the protection of the law, and must look to his own acts and his own diligence alone to protect him from criminal responsibility. [Id. at 91-92, 95-96 (emphasis supplied).]
From Shannon, it is apparent that the child abandonment statute was implemented to prevent young children from being left unattended, with the intent to wholly abandon them, without some arrangements being made to ensure the children’s safety and minimize the hazards of personal injury from the abandonment. Although society may have changed since 1858, the statute has remained basically the same, and we are bound by our Supreme Court’s interpreta
In response to this case and the publicity it generated, the Legislature enacted with unusual quickness a specific criminal statute that prohibits the sale or purchase of people, MCL 750.136c.
In addition, defendant may have committed a common-law felony by his attempt to sell his child. In particular, MCL 750.505 provides:
Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court.
See, generally, People v Coutu (On Remand), 235 Mich App 695, 704-707; 599 NW2d 556 (1999); People v Cunningham, 201 Mich App 720, 722-723; 506 NW2d 624 (1993).
Because defendant has not been charged with committing a common-law felony and the prosecutor has not raised the issue, we express no opinion on the question whether attempted child selling was an indictable offense at common law. Rather, we note that our reversal is without prejudice to the filing of common-law felony charges in the event it is determined that defendant’s actions were indictable at common law.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
The statute, as it read in 1858, stated:
“If the father or mother of any child under the age of six years, or any person to whom such child shall have been confided, shall expose such child in any street, field, house, or other place, with the intent wholly to abandon it, he or she shall be punished by imprisonment in the state prison not more than ten years.” [Shannon, supra at 81.]
In relevant part, the statute currently reads:
A father or mother of a child under the age of 6 years, or another individual, who exposes the child in any street, field, house, or other place, with intent to injure or wholly to abandon the child, is guilty of a felony, punishable by imprisonment for not more than 10 years. [MCL 750.135(1).]
Further, in 2000, the statute, MCL 750.135, was amended to add the following section encouraging parents of unwanted newborns to deliver them to emergency service providers instead of abandoning them:
(2) Except for a situation involving actual or suspected child abuse or child neglect, it is an affirmative defense to a prosecution under subsection (1) that the child was not more than 72 hours old and was surrendered to an emergency service provider under chapter XH of the probate code of 1939, 1939 PA 288, MCL 712.1 to 712.20. A criminal investigation shall not be initiated solely on the basis of a newborn being surrendered to an emergency service provider under chapter XH of the probate code of 1939, 1939 PA 288, MCL 712.1 to 712.20.
Although the dissent states that “the Shannon Court’s definition of the term ‘expose’ is dicta,” post at 127, we disagree. In People v Higuera, 244 Mich App 429, 437-438; 625 NW2d 444 (2001), this Court explained:
Black’s Law Dictionary (7th ed) defines obiter dictum as “[a] judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (though it may be considered persuasive).” The Michigan Supreme Court has declared, however, that “ ‘[w]hen a court of last resort intentionally takes up, discusses and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision.’ ” Detroit v Michigan Public Utilities Comm, 288 Mich 267, 299-300; 286 NW 368 (1939), quoting Chase v American Cartage Co, Inc, 176 Wis 235, 238; 186 NW 598 (1922). A decision of the Supreme Court is authoritative with regard to any point decided if the Court’s opinion demonstrates “application of the judicial mind to the precise question adjudged, regardless of whether it was necessary to decide the question to decide the case.” People v Bonoite, 112 Mich App 167, 171; 315 NW2d 884 (1982).
We believe that the Shannon Court’s analysis with respect to the term “expose” in the statute under which the defendant was charged is authoritative. After finding one exception decisive to the cause, the Court continued to address, discuss, and decide other issues that were germane to the controversy. As the Shannon Court itself stated, “there are other important questions presented by the exceptions . . . .” Shannon, supra at 82, 88. We believe that the Shannon Court’s analysis is binding. Higuera, supra at 437.
MCL 750.136c provides:
(1) A person shall not transfer or attempt to transfer the legal or physical custody of an individual to another person for money or other valuable consideration, except as otherwise permitted by law.
(2) A person shall not acquire or attempt to acquire the legal or physical custody of an individual for payment of money or other valuable consideration to another person, except as otherwise permitted by law.
(3) A person who violates this section is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not more than $100,000.00, or both.
Dissenting Opinion
(dissenting). I respectfully dissent. The primary shortcoming of the majority is its conclusion that delivering a ten-month-old infant to a total stranger does not “expose” the infant to injury. In my opinion, the element of exposure is established if the prosecution can show that defendant put his infant daughter at risk. Common sense dictates that anyone who delivers an infant to a total stranger with the intent to totally abandon the infant puts her at risk of being subjected to numerous unknown dangers.
MCL 750.135 makes it a crime to expose a child with intent to injure or wholly abandon the child. At common law, the exposure of a child with the intent to abandon the child was not a crime unless injury to the child actually occurred. Shannon v People, 5 Mich 71, 91 (1858). The crime was measured by the result of the abandonment. In other words, the common law punished the perpetrator for the injury, not for “the exposure to, or hazard of, the injury.” Id. (emphasis in original). It was often difficult to determine if the injury was the result of the exposure or of some other cause. Id. Because the common-law remedy did not prevent injury, the object of the child abandonment statute was to punish as a crime the act that created the hazard before injury could occur.
A. THE FACTS OF SHANNON v PEOPLE
Shannon was decided in 1858, and the Court was concerned with what we now call aiding and abetting. At that time, the principle of law now known as aiding and abetting was in its infancy and subject to much legal discourse. In Shannon, supra at 73-74, the defendant instructed two men to go to his girlfriend’s home, take his eight-month-old infant from her, and deliver the child to the doorstep of an unsuspecting third party.
B. “ABANDON” AT COMMON LAW
It is important to note that the two elements of abandonment and exposure overlap significantly. See id. at 90 (“to ‘expose’ the child is the substantive act — the ‘intent to abandon’ is the secondaiy ingredient; both must concur to complete the offense”). According to Shannon, supra at 89, “the term ‘abandon’ is here used in its ordinary sense — to forsake, to
C. “EXPOSE” AT COMMON LAW
In light of the common law, the Shannon Court struggled in 1858 to find a suitable definition for the term “expose.” The Court stated:
The term “expose,” in such a connection, does not appear to have become a legal term, the meaning of which is settled by judicial decision, either in this country or in England. . . . [T]herefore, ... we are compelled to seek for its meaning in the general popular sense of the term, the context, the subject matter, and what we may deem to have been the occasion and design of the statute. [Id. at 89.]
In my view, Shannon supports the circuit court’s decision to reverse the order of the district court and reinstate the charge. Shannon held:
[T]o leave a child, with the intent wholly to abandon it, “in a house (or other place) where it would be certain to be cared for,” would not constitute the exposure contemplated by the statute. . . .
*126 The question, therefore, upon this point, is simply this: Did the acts of the party leaving or abandoning the child, viewed in connection with the time, place, and all the accompanying and surrounding circumstances, subject the child to the hazard of such personal injury?[5 ] [Id. at 91-92 (quotations omitted; emphasis added).]
The Shannon Court then concluded that child abandonment “is a question of fact, for the good sense of a jury under the rule of law above laid down.” Id. at 97.
n. MODERN LAW
The majority diligently relies on Shannon to infer a definition of “expose,” but more recent authority could aid in their definitional conundrum. While I find the 1858 Shannon decision a helpful starting point, I do not find it dispositive of this case.
In 1858, times were a little different. The Family Independence Agency did not exist and adoption procedures were not what they are today. Families were the cornerstone of society, and large, two-parent families were not unusual. People in a community generally knew each other. Cities were more rural than urban, and crime was not what it is today. Thus, this Court should examine the societal evolution of the terms used in the child abandonment statute, as well as the modem “time, place . . . and all the circumstances surrounding” this issue to make its. decision.
Because the elements of child abandonment have not been clearly defined in their specific context, dictionary definitions may be relied on to determine the meaning of the child abandonment statute.
B. MODERN LEGAL DEFINITION OF “EXPOSE”
Today, unlike in Shannon’s day, the term “expose” does have a legal meaning. In the past 150 years,
m. APPLICATION OF MODERN LAW
Applying these principles to the facts of this case, it is clearly a question of fact for a jury to determine whether selling your child to a total stranger meets the definitional requirements of exposure. See Shannon, supra at 97; People v Artman, 218 Mich App 236, 239; 553 NW2d 673 (1996). This is especially true considering the fact that in the present case, defendant had no idea to whom he was selling his child.
Today, adoptive parents, foster parents, and even daycare providers have strict licensing regulations
IV. CONCLUSION
The majority’s interpretation of the term “expose,” using nineteenth century societal norms, is diligent.
For these reasons, I would affirm the circuit courts order reversing as an abuse of discretion the district court’s order dismissing the charge against defendant.
The child abandonment statute, MCL 750.135, is designed to punish those individuals who abandon their child in a manner that puts the child at risk of some danger. Shannon v People, 5 Mich 71, 93-94 (1858). At common law, an individual could be punished only if injury to the child ensued. Id. at 90. In 1858, a major purpose of the statute was to punish those individuals who placed their children at risk. Id. at 90-91. In today’s society, any responsible parent will tell you that, if you deliver your infant daughter to a stranger, you are putting her at risk of being subjected to numerous unknown dangers.
In order to bind over defendant for trial, the district court was only required to determine whether, following the preliminary examination, the prosecutor presented competent evidence to believe that (1) a felony was committed and (2) probable cause to believe that the defendant committed the felony. People v Northey, 231 Mich App 568, 574; 591 NW2d 227 (1998).
Because the issue before us depends on a question of fact, only a jury may decide it, as well as the ultimate guilt of defendant. Shannon, supra at 97 (child abandonment is a fact question); People v Nash, 110 Mich App 428, 439; 313 NW2d 307 (1981) (abandonment element in property law case was fact question); People v Artman, 218 Mich App 236, 239; 553 NW2d 673 (1996) (questions of fact in criminal cases are for the jury).
Thus, the majority erroneously implies reliance on the fact that in this case defendant’s baby was not actually exposed to injury, because an undercover police officer “bought” her and then turned her over to the Family Independence Agency. The problem with this premise is that the majority is looking at the circumstances in this case objectively, with the knowledge that a police officer was posing as the child purchaser. See Shannon, supra at 94 (a defendant’s expectations regarding fitness of person receiving the child are irrelevant). To the contrary, it is undisputed that defendant did not definitively know who the buyers were. Thus, regardless of what actually happened to the child, defendant’s intent to sell his daughter to a stranger was culpable. Cf. People v Thousand, 465 Mich 149, 157-158; 631 NW2d 694 (2001) (“factual impossibility” is no defense to an attempt crime).
Indeed, it is defendant’s intent that is punishable in the offense of child abandonment. See MCL 750.135; Shannon, supra at 91. Child abandonment is likely a general intent crime because the statute does not identify a particular state of mind or intended end result for culpability. See People v Disimone, 251 Mich App 605, 610-611; 650 NW2d 436 (2002) (definition of specific and general intent crimes). Because child abandonment is a general intent crime, defendant’s mere intent to abandon his child was culpable. Again, defendant did not have to specifically intend that the baby be injured to be. bound over for trial on the charge of child abandonment. See id.-, Shannon, supra at 90-91.
Thus, Shannon is distinguishable on its'facts because they are inapposite to the case at bar.
Another way to explain this standard is whether the defendant “subjected [the child] to the risk of iiqury[.]” Shannon, supra at 94 (emphasis in original). In my view, if the defendant did not put a child at risk, then the case does not fall within the scope of the child abandonment law. However, if a child was put at risk, then the law applies. The majority erred in failing, to determine that if a reasonable person could conclude that the child was put at risk, then child abandonment is a jury question. See also id. at 97. Only if, on the basis of all the facts and circumstances, a reasonable person could not conclude that this child was put at risk, does the issue become a question of law for a court to decide de novo. See People v Hudson, 241 Mich App 268, 276; 615 NW2d 784 (2000) (appellate standard of review).
In Shannon, supra at 82-83, our Supreme Court stated that its interpretation of the term “confided” in the statute, i.e., “the first exception,” “is well taken, and is decisive of the cause.” Because this issue was decisive of the case, the balance of the opinion was not necessary to the Court’s decision, and was, therefore, obiter dicta. Under the rule of stare decisis, dicta is not controlling precedent. See People v Squires, 240 Mich App 454, 458; 613 NW2d 361 (2000). Thus, this Court is not compelled to follow the definition of “expose” expressed in Shannon.
However, even if I were to accept Shannon’s definition of “expose,” I believe that Shannon supports the conclusion that whether exposure actually occurred in the present case is a question of fact for a jury. See Shannon, supra at 97.
I note, as the circuit court in this case did, that the district court declined to bind over defendant because it found that the element of intent to wholly abandon was not established. See People v Northey, 231 Mich App 568, 574; 591 NW2d 227 (1998). The circuit court’s decision, in contrast, found that the prosecution established that defendant did intend to wholly abandon his infant daughter. The circuit court also stated that the district court had confused the abandonment and exposure elements. Finally, the circuit court concluded that the prosecution presented enough evidence to proceed to a jury regarding whether the infant was exposed in violation of Shannon, because a reasonable person would have been apprehensive about defendant’s actions in this case. See People v Crippen, 242 Mich App 278, 281-282; 617 NW2d 760 (2000) (circuit court standard of review). I reiterate that, after a sufficient showing by the prosecution,
I note that statutory interpretation is the responsibility of the judges of the court system. Contrary to the majority’s implication, statutory interpretation is not the responsibility of the Legislature. See, generally, Const 1963, art 3, § 2, art 4, § 1, art 6, § 1; People v Warren, 462 Mich 415, 427; 615 NW2d 691 (2000). In the present case, the circuit court properly determined that defendant’s actions fit within the four comers of the child abandonment statute.
Walton v Southfield, 748 F Supp 1214 (ED Mich, 1990), interpreted the Shannon Court’s definition of “exposure.” However, Walton does not apply to the present case for several reasons. In Walton, supra at 1216-1217, a grandmother sued the police under MCL 750.135 for child abandonment of her daughter and granddaughter when the police arrested the grandmother and left the children alone in the car for some time. Walton is a nonbinding federal district court opinion that was reversed in part at 995 F2d 1331 (CA 6, 1993). See Sharp v Lansing, 464 Mich 792, 802-803; 629 NW2d 873 (2001). Moreover, there was no sale of children in Walton,
I note that MCL 750.135(2) now provides a safe harbor for persons delivering to a hospital an infant seventy-two hours old or less.
Indeed, I note that on occasion, children are sold for drugs, into prostitution, or like situations. See, e.g., In re Thacker, 881 SW2d 307, 310 (Tex, 1994) (“The evils inherent in baby-bartering are loathsome for a myriad of reasons. The child is sold without regard for whether the purchasers will be suitable parents.”); In re Adoption of E W C, 89 Misc 2d 64, 75; 389 NYS2d 743 (Surrog Ct, 1976) (detailing interstate baby-selling operation with no regard to assuring proper “adoptive” parents); Note, Responses to the international child sex tourism trade, 19 BC Int’l & Comp L R 397, 401, 415-416 (1996) (noting that Americans’ participation in international child sex trade is punishable in the United States under new law).
In fact, in the present case, the record reveals that defendant was only concerned about the price he would get for his infant daughter, not the fitness of the prospective parents, and that defendant compared the sale of his child to selling a dog.
In my opinion, if defendant had sold his infant daughter to a pedophile, the majority opinion would conclude that defendant’s actions are within the scope of this statute. Not even the majority could disagree that selling your child to a pedophile puts the child at risk. The flaw in the majority’s logic is the conclusion that the purchasers of this baby were respectable individuals. It is beyond dispute that defendant had no idea
Reference
- Cited By
- 15 cases
- Status
- Published