People v. Swanigan , 20 Mich. App. 180 ( 1974 )

20 Mich. App. 180 (1969) 173 N.W.2d 775

PEOPLE
v.
SWANIGAN

Docket No. 6,074.

Michigan Court of Appeals.

Decided November 25, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan. Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.

M. John Shamo, for defendant on appeal.

Before: LESINSKI, C.J., and HOLBROOK and QUINN, JJ.

LESINSKI, C.J.

Defendant was tried and convicted by a jury of assault with intent to commit rape.^[1]

The basic facts were testified to by defendant and are undisputed. On September 19, 1967, the complainant, a student public health nurse and field trainee, visited the home of the defendant on a routine postnatal call. Although defendant's wife was not present, the complainant proceeded to discuss certain aspects of family planning with defendant, including the use of birth control pills. Defendant apparently became sexually aroused and attacked the complainant. During the attack, which took place in defendant's living room and bedroom, defendant ripped off the complainant's underpants, exposed himself and attempted intercourse with her. As a result of complainant's resistance and defendant's apparent desistance, penetration was not achieved. The parties then returned to the defendant's living room and resumed "talking" while the complainant sought a method of escape. The arrival of defendant's wife provided the opportunity.

Before trial, a psychiatric examination of defendant established his competency to stand trial.

Defendant argues on appeal that at the time of the crime he was mentally disturbed, thereby precluding a jury finding of the requisite specific intent to commit the charged act.

At the outset we note that defendant did not raise the defense of insanity in a pretrial notice.^[2] Recognizing this fact, the defendant nevertheless argues that the jury should have been instructed on the "effect of mental disease or deficiency upon the element of intent." In support of this contention, defendant cites various cases involving the effect of intoxication upon a finding of specific intent. We do not see the application of those cases. Defendant here has not established any similar physiological problem.

Rather, we feel that the following language from 1 Gillespie, Michigan Criminal Law and Procedure, § 42, pp 60, 61, is in point.

"Passion and insanity are very different things, and whatever indulgence the law may extend to persons under provocation, it does not treat them as free from criminal responsibility. Those who have not lost control of their reason by mental unsoundness are bound to control their tempers and restrain their passions, and are liable to the law if they do not. Where persons allow their anger to lead them so far as to make them reckless, the fact that they have become at last too infuriated as to keep from mischief is merely the result of not applying restraint in season. There would be no safety for society if persons could with impunity lash themselves into fury, and then do desperate acts of violence. That condition which springs from undisciplined and unbridled passion, is clearly within legal as well as moral censure and punishment. If a person voluntarily allows his passion to be indulged in until it gets temporary control over him, he is * * * responsible for the condition in which he thus falls. * * * It would be a strange and unsafe doctrine to tolerate anything that should be deemed innocent insanity, which in no way affects the mind or conduct except on the one occasion when it is kindled by temporary anger, and subsides with the gratification of that malignant passion."^[3]

Reviewing the entire charge to the jury, we are convinced that the trial court fairly, completely and exhaustively apprised the jury as to the necessity of finding specific intent.

Defendant's second claim is that the trial court erred in admitting into evidence two pictures of complainant. The two photographs showing a bitemark and bruise, were introduced to corroborate the complainant's claim of assault. They were relevant, material and accurate, and were properly admitted. People v. Becker (1942), 300 Mich 562; People v. Freeman (1965), 1 Mich App 63.

Finally, the defendant took the stand in his own behalf and testified to substantially the same facts as did the complainant. Certainly there was sufficient evidence, if believed, for the jury to find guilt beyond a reasonable doubt.

Affirmed.

All concurred.

NOTES

[1] MCLA § 750.85 (Stat Ann 1962 Rev § 28.280).

[2] Notice of intent to plead the defense of insanity is required to be served upon the prosecution before trial by MCLA § 768.20 (Stat Ann 1954 Rev § 28.1043).

[3] For the proposition that the sexual urge is one of mankind's greatest passions, see: People v. Jenness (1858), 5 Mich 305, 321 (opinion by Christiancy, J.)