Powell v. King

189 N.W.2d 746, 33 Mich. App. 41, 1971 Mich. App. LEXIS 1701

• Court: Michigan Court of Appeals
• Decided: April 26, 1971
• Docket: Docket 7828
• Status: Published

Opinions

V. J. Brennan, P. J.

Plaintiff Alfred Powell recovered judgment below for injuries sustained from an assault and battery committed on him by defendant Samuel King. From a denial of his motion for a new trial, defendant appeals.

Neither of the errors assigned by defendant requires reversal.

It is first contended that the court erred in allowing into evidence the record of his plea of guilty to a charge of assault¹ arising out of the same transaction which forms the basis of the present civil suit. While conceding the general rule² allowing the use of guilty pleas in civil suits as admissions,³ Diamond v. Holstein (1964), 373 Mich 74, defendant argues that it should not be admitted in the instant case, because it is outside the scope of the pleadings and issues and is highly prejudicial. Defendant takes this unique position, because he claims that plaintiff was only seeking damages for injuries inflicted by a weapon and that a simple assault is, as a matter of law, an assault without a weapon.

With regard to defendant’s statement that the guilty plea is outside the scope of the pleadings, we note that plaintiff’s complaint did in fact allege an assault without a weapon. With regard to defendant’s statement that the record is outside of the issues, we point out that defendant’s answer to the complaint denies “the commission of any assault, as defined by law, upon the person of plaintiff.” This is in direct contradiction to his plea of guilty to assault. Finally, admissions may be allowed into evidence despite the obvious possibility of prejudice to the defendant. Owen v. Birmingham Federal Savings and Loan Association (1970), 27 Mich App 148.

The facts admitted by the plea of guilty offered as evidence in this civil action were relevant to the issues and, therefore, admissible. The record discloses the defendant’s complete explanation of the events and it shows the reason for his plea, namely, that he first hit the plaintiff with his fists because he became enraged at plaintiff’s remarks concerning his daughter. He next explained how this led into his fear of the alleged possession of a gun by the plaintiff, which then became the basis for his self-defense position. All of these were questions of fact for the jury to decide. The jurors had full opportunity to observe the parties and the witnesses and to determine what, if any, credibility they would attach to the testimony of each.

Defendant’s second assignment of error concerns the refusal of the trial court to give a requested instruction to the jury. At the'close of the proofs, counsel for defendant unsuccessfully requested that the trial court give an instruction stating, inter alia, that “the offense of simple assault * * * is, by law, defined as an assault committed without the use of a weapon” and that the plea of guilty could be considered as an admission only that there was an assault without a weapon.

It was not error to deny the requested instruction. The statute under which defendant was convicted does not, in fact, define assault as a crime committed without a weapon.⁴ And while it is true that the assaults involved in this single transaction are technically separable, we do not feel under the circumstances (the defendant having admitted to using a knife) the court was obliged to draw this distinction for the jury. The charge as a whole was fair, the error, if any, was harmless. GCR 1963, 517.1.

For the foregoing reasons, the judgment of the lower court is affirmed.

Affirmed.

Fitzgerald, J., concurred.

1 MCLA § 750.81 (Stat Ann 1962 Rev § 28.276) provides:

“Sec. 81. Any person who shall be convicted of an assault or an assault and battery where no other punishment is prescribed shall be guilty of a misdemeanor.”

2 See 18 ALR2d 1287, § 4, p 1307.

3 We refuse to add to the confusion surrounding the exceptions to the hearsay rule by following the lead of the attorneys and the lower court in labeling an admission as an “admission against interest.” Admissions and declarations against interest are separate and distinct exceptions to the hearsay rule; they have different prerequisites and a somewhat different rationale. 4 Wigmore on Evidence (3d ed), § 1049, p 6. Nor is a guilty plea properly called a judicial admission when it is sought to be used in a proceeding other than that in which it was made. 4 Wigmore on Evidence (3d ed), § 1058, p 20. We point out these distinctions not merely for the sake of proper nomenclature, but also to avoid what Wigmore calls “local error[s] of theory” with respect to the conditions which must obtain ■ before one or the other exception applies.

4 See fn 1, supra.