People v. Joeseype Johnson , 407 Mich. 196 ( 1979 )

Memorandum Opinion. These consolidated cases, arising out of prosecutions for felonious assault, concern jury instructions on the mental element of the common-law offense of assault and the statutory offense of felonious assault.

The people’s proofs at trial in Johnson and at the preliminary examination in Ring tended to show that in each case the defendant pointed a gun at the complainant but no shot was fired. The defendants claim that they had no intention to injure and that the jury must be instructed that it may not convict unless it finds such intent. The instruction was refused in Johnson; before trial in Ring the judge agreed to so instruct.

A majority of the Justices are of the opinion that

1) a simple criminal assault "is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery”, People v Sanford, 402 Mich 460, 479; 265 NW2d 1 (1978),

2) the jury should be instructed that there must be either an intent to injure or an intent to put the victim in reasonable fear or apprehension of an immediate battery,

3) the instruction in Johnson was deficient in two respects: it failed adequately to inform the jury of the intent requirement and it neglected to present the alternative "reasonable apprehension of receiving an immediate battery” form of felonious assault; the jurors in Ring should be instructed that defendant can be convicted if he intended to injure the victim or put him in reasonable apprehension of receiving an immediate battery.

We reverse Johnson and remand for a new trial and affirm the trial court’s decision in Ring as modified and remand for trial.

Johnson did not raise an intoxication defense and the question whether assault or felonious assault are specific intent crimes for the purpose of the voluntary intoxication defense is not raised by the facts and has not been briefed or argued and is not before us; we intimate no opinion on that question.

This memorandum opinion is signed by seven Justices. There are separate concurring and dissenting opinions. However, at least four Justices concur in every holding, statement and disposition of this memorandum opinion.

Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.

Williams, J.

Leave to appeal was granted in these cases to consider a single question: "whether felonious assault includes a specific intent as an element.” MCL 750.82; MSA 28.277. 402 Mich 855 (1978).

We granted leave because the precedents in this Court do not give a clear answer to the question and, until recently, the same situation prevailed in the Court of Appeals.

Our answer is that speciñc intent is not an element in MCL 750.82; MSA 28.277:

"Felonious assault — Any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a felony.”

We hold specific intent is not an element for these reasons:

(1) There is no specific intent written into the section while two forms of specific intent are particularly excluded from the section.

(2) MCL 750.82; MSA 28.277 is one of a number of assault sections in Chapter XI of the penal code. MCL 750.82; MSA 28.277 does not particularly define a specific intent, whereas most of the others do.

(3) The structure and history of MCL 750.82; MSA 28.277 demonstrate that this section entitled felonious assault should more properly be called assault with a dangerous weapon. It is just that, a simple assault aggravated by the use of a dangerous weapon. The only intent necessary is the general intent necessary for an assault.

(4) The controlling case law, People v Burk, 238 Mich 485; 213 NW 717 (1927); People v Sanford, 402 Mich 460; 265 NW2d 1 (1978); People v Richard Johnson, 42 Mich App 544; 202 NW2d 340 (1972), holds that specific intent is not an element of felonious assault.

In People v Johnson the trial court refused to give a separate instruction on criminal intent for felonious assault, but did instruct that the prosecution must prove an intentional assault. The Court of Appeals affirmed. We affirm the Court of Appeals in People v Johnson.

In People v Ring the trial court agreed to instruct the jury that the "intent to do bodily injury” was a necessary element of felonious assault. The Court of Appeals denied leave to appeal. We reverse the decision of the trial court to give the "intent to do bodily injury” instruction and remand for instructions consistent with this opinion.

I. Facts

A. People v Johnson

On June 1, 1974, at about 3 a.m. complainant, Ramone Jefferson, delivered a pizza to a motel room in Highland Park. He received a ten-dollar bill in payment from his customers and returned to his automobile for change. When complainant returned he was met outside the motel room by-defendant Joeseype Johnson, who pointed a pistol at him and ordered him not to move. The customers slammed the door. While pointing the gun at Jefferson, Johnson attempted to force the door open. This went on for about ten minutes. Defendant then told Jefferson to "stay right there”. Complainant remained in front of the motel room while Johnson walked out to a nearby terrace. When Johnson returned he again attempted to gain entrance to the motel room. When the customers refused to open the door, defendant told complainant that he could go.

Complainant went immediately to the manager’s office and reported the incident. After leaving the manager’s office the complainant saw Johnson walking toward his (complainant’s) car. Complainant then returned to the manager’s office. After a few minutes Johnson entered the manager’s office, pulled up his shirt, indicating that he did not have a pistol and said, "See, I’m legal now.” Jefferson left, drove to a police station and reported the incident. He returned to the manager’s office with a police officer. Johnson was still standing in the manager’s office. The complainant identified Johnson and Johnson was promptly arrested.

Defendant was charged with felonious assault, a violation of MCL 750.82; MSA 28.277. At trial, defense counsel requested "a separate instruction on criminal intent”. The trial judge stated that People v Clark, 48 Mich App 645; 210 NW2d 906 (1973), "indicated that specific intent is not an element of crime — of felonious assault. * * * '[T]he only elements necessary to prove and sustain a conviction of felonious assault are assault and that a dangerous weapon was used in making the assault.’”

The judge gave the following instruction on felonious assault:

"In this case, the defendant is charged with an offense which is commonly known as felonious assault; the statute from which the information is drawn, so far as the same [is] material provides as follows: any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon but without intending to commit the crime of murder and without intending to commit great bodily harm less than murder shall be deemed guilty of a felony. An assault is an attempt or offer with force and violence to harm another.

"If you are satisfied from the testimony that Mr. Johnson committed an intentional assault with a revolver which is a dangerous weapon likely to produce great bodily injury or is one more accurately described in the manner in which it is attempted to be used to commit great bodily harm.”

The Court of Appeals affirmed defendant’s conviction on March 10, 1976 in an unpublished per curiam opinion (Docket No. 22311). We granted leave to appeal January 20, 1978, 402 Mich 855 (1978), "limited to the following issue: whether felonious assault includes a specific intent as an element.”

B. People v Ring

On the morning of March 7, 1977, a roofing company’s work crew was temporarily blocking traffic while backing a truck into a driveway. One of the company’s employees, Tom Heney, was directing traffic around the truck. Defendant David Ring approached the stopped traffic.

The testimony presented at the preliminary examination offers two interpretations of the events that followed. Defendant testified that he stopped and was directed around the truck by Heney. While passing the truck, defendant heard a loud thud coming from the side of his automobile. He stopped and got out of his car. The person direct-, ing traffic was very angry with defendant and made obscene gestures and comments. Defendant got back in his car and left.

Members of the working crew presented a different version of the incident. They testified that defendant ignored the signal to stop, wove in and out of traffic and forced his way through the bottleneck, nearly striking Heney. The truck was subsequently parked off the street. About 20 minutes later the company personnel noticed defendant’s automobile returning and came down from the roof to obtain his license-plate number. Defendant stopped on the street. Complainant, Roger VorenKamp, was the first to reach the street. He approached defendant’s automobile. Defendant and VorenKamp exchanged words. Ring then produced a pistol from the seat beside him and pointed it at VorenKamp and then sped away. The employees noted defendant’s license-plate number and called the police.

Defendant testified he returned to the work site to get the truck license number and that the complainant, carrying his roofing tools, approached within a foot or two of defendant’s car and shouted loud and obscene comments at defendant. When complainant told defendant to pull into the driveway so that the matter could be settled, defendant picked up a toy pistol from the front seat of his automobile and pointed it at the complainant. Complainant left immediately and defendant drove off.

The police traced the vehicle registration supplied by the work crew to defendant and attempted to find him. Subsequently defendant went to police headquarters of his own volition. He acknowledged the confrontation with VorenKamp but claimed that it was only a toy pistol he had used. Ring handed the police a plastic pistol. The officer showed the toy gun to VorenKamp who stated that it was not the gun which defendant had pointed at him. The police checked the pistol safety inspection records and found that defendant had presented a .38-caliber revolver for safety inspection on June 21, 1976. They confiscated this weapon. The complainant was unable to identify the confiscated gun as the one pointed at him. About five weeks later defendant was charged with assault with a dangerous weapon, MCL 750.82; MSA 28.277.

Prior to trial defendant requested a jury instruction on the elements of assault with a dangerous weapon.

Defendant’s Proposed Instruction "A” reads:

"The defendant, David Ring, is charged with the crime of assault with a dangerous weapon. This crime is very often referred to as felonious assault.

"To establish the crime of felonious assault and to establish David Ring’s guilt of that crime, the prosecution must prove all three of the following elements beyond a reasonable doubt:

"(1) That David Ring deliberately pointed a dangerous weapon at the complainant;

"(2) That, when he did so, if he did so, David Ring intended to do bodily harm to complainant although harm less than murder and less than great bodily harm, and

"(3) That David Ring acted without excuse or justification.

"The second necessary element is intent to do bodily harm. Intent is a decision of the mind to knowingly do an act with a conscious and fully formed [objective] of accomplishing a certain result. The intent with which a person does an act is known by the way he expresses it or by the way he indicates it by his conduct. When certain intent is a necessary element of a crime, that crime cannot have been committed if the intent did not exist. Accordingly, there can be no crime of felonious assault where there is no intent to do bodily harm.”

The trial court found,

"It is hereby ordered that defendant’s Proposed Instruction 'A’ be given, this court having ruled that, contrary to the Michigan Criminal Jury Instructions and Commentary with respect to the crime of felonious assault, specific intent to do bodily injury to the complainant is an element of the crime of felonious assault which the people must prove beyond a reasonable doubt.”

The prosecution filed an application for leave to appeal the decision requiring the giving of the requested instruction, with the Court of Appeals. The application was denied September 30, 1977 (Docket No. 77-3295). The prosecution then filed an application for leave to appeal with the Supreme Court. We granted leave to appeal January 20, 1978, 402 Mich 855 (1978), "limited to the following issue: whether felonious assault includes a specific intent as an element”.

II. No Specific Intent in MCL 750.82; MSA 28.277

MCL 750.82; MSA 28.277 states:

"Any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a felony.” (Emphasis added.)

The statutory language does not require any specific intent, it simply requires an assault with a dangerous weapon. In fact the language negates the requirement of two types of specific intent, i.e., intent to commit murder and intent to inflict great bodily harm less than murder. Consequently, the wording of the statute cannot support the allegation that a specific intent is an element of felonious assault. The only intent necessary is the general intent to do acts involved in the assault. The statute is clear in requiring only an assault and with a dangerous weapon.

Generally assault with a dangerous weapon is interpreted as a general intent crime.

"No specific intent is necessary to constitute the-crime, other than such as may be embraced in the act of making an assault with a dangerous weapon. This embraces simply the intentional and unlawful use of a dangerous weapon, by means of which an assault is committed with such weapon upon the person of another.” 1 Anderson, Wharton’s Criminal Law and Procedure (1957 ed), § 361, p 720.

III. Other Assault Sections Have Particular Reference to Specific Intent

"Chapter XI. Assaults” of the penal code, MCL 750.81 et seq.; MSA 28.276 et seq., derives from 1931 PA 328, which in turn was based on prior enactments. "Chapter XI. Assaults” lists a series of assaults punishable as either misdemeanors or felonies depending on the severity of the offense.

The points of importance to the issue in the instant case are: first, felonious assault is but one of a number of assault offenses listed in successive sections of 1931 PA 328, and second, the language of the felonious assault section does not include a specific intent to harm another either in the catch-line title or in the text setting forth the offense and punishment, whereas a number of the other sections deal with assault offenses where the intent to harm another is specifically set forth in both the catchline title and in the text of the offense.

The assault offenses listed in "Chapter XI. Assaults” follow:

1. assault and assault and battery, 1931 PA 328; MCL 750.81; MSA 28.276

2. assault and infliction of serious injury, 1931 PA 328, as added by 1939 PA 237; MCL 750.81a; MSA 28.276(1)

3. felonious assault, 1931 PA 328; MCL 750.82; MSA 28.277

4. assault with intent to commit murder, 1931 PA 328; MCL 750.83; MSA 28.278

5. assault with intent to do gréat bodily harm less than murder, 1931 PA 328; MCL 750.84; MSA 28.279

6. assault with intent to maim, 1931 PA 328; MCL 750.86; MSA 28.281

7. assault with intent to commit felony not otherwise punished, 1931 PA 328; MCL 750.87; MSA 28.282

8. assault with intent to rob and steal being unarmed, 1931 PA 328; MCL 750.88; MSA 28.283

9. assault with intent to rob and steal being armed, 1931 PA 328, as amended by 1939 PA 94; MCL 750.89; MSA 28.284.

The sections which require a specific intent list the intent as an element, for example assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279:

"Assault with intent to do great bodily harm less than murder — Any person who shall assault another with intent to do great bodily harm, less than the crime of murder, shall be guilty of a felony punishable by imprisonment in the state prison not more than 10 years, or by fine of not more than 5,000 dollars.” (Emphasis added.)

This is to be compared with the felonious assault section, which reads as follows:

"Any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a felony.” (Emphasis added.)

Comparison of those sections of "Chapter XI. Assaults” which specifically set forth the requirement of a specific intent to harm another with the felonious assault section demonstrates two points. First, the Legislature demonstrates beyond peradventure that when it intends a particular offense to require a specific intent, it knows how to, and does, require that specific intent. Second, the Legislature demonstrates that in the case of felonious assault it does not intend to require a specific intent. As a consequence, this Court should follow the legislative intent and not require a specific intent for felonious assault.

IV. MCL 750.82; MSA 28.277 Is Only Simple Assault Plus a Dangerous Weapon

At common law assault and battery were misdemeanors. When codifying the criminal law, the Legislature created a series of more serious or "aggravated” offenses which did not exist as separate crimes at common law. Although based partly on common-law crimes of assault and battery, some of the aggravated offenses are now felonies.

"Although the common law created the twin crimes (misdemeanors) of assault and battery, in modern times legislatures everywhere have added the more serious crimes (felonies) of aggravated assaults and batteries (e.g., assault, battery with intent to kill, rob, rape; assault, battery with a dangerous weapon).” LaFave & Scott, Criminal Law, § 80, p 603.

The 1931 codification, The Michigan Penal Code, contains Chapter XI which lists "aggravated” assaults. It has remained essentially unchanged to this day.

The basis of the offenses listed in Chapter XI is an assault; this is evident from the catchlines and text of the particular sections. The obvious intent of the Legislature is to punish more severely those assaults accompanied by some degree of aggravation, e.g., serious injury, use of a dangerous weapon or a specific intent. Therefore, the basic assault must be established, accompanied by the aggravating circumstances to meet requirements of the particular sections.

MCL 750.82; MSA 28.277 requires an "assault * * * with a * * * dangerous weapon”, in other words an assault aggravated by the use of a dangerous weapon. In People v Goolsby, 284 Mich 375; 279 NW 867 (1938), a prosecution for felonious assault with an automobile, the Court said:

"Construction or interpretation of a penal statute requires consideration of the evil sought to be penalized. The evil, under legislative consideration, was that of assaults, aggravated by use of dangerous weapons.” 284 Mich 375, 379.

This analysis of the legislative concerns demonstrates that the elements of felonious assault are (1) an assault and (2) employment of a dangerous weapon.

In Burk, supra, this Court again listed the elements of felonious assault as "an assault with a dangerous weapon” without the intent to murder or the intent to do great bodily harm less than murder. The Court said, "If defendant assaulted Foster with a dangerous weapon he would be guilty of the offense charged, regardless of his intent to injure him.” 238 Mich 485, 489.

We conclude that felonious assault is, as the statute states, assault with a dangerous weapon. There is no support for the allegation that the offense requires more than those elements.

Simple criminal assault is acknowledged as a general intent crime.¹ In other words, it is only necessary to show an intent to commit an unlawful act to satisfy the intent element of simple assault. Since felonious assault is assault with a dangerous weapon, the intent element of felonious assault is shown by the same type of act, i.e., an intentional unlawful act. There is no specific intent necessary for felonious assault, only the general intent needed for simple assault.

V. Present Case Law

There are four critical cases to consider in reviewing the position of this Court on the question "whether felonious assault includes a specific intent as an element”. They are chronologically:

People v Doud, 223 Mich 120; 193 NW 884 (1923); People v Burk, 238 Mich 485; 213 NW 717 (1927); People v Counts, 318 Mich 45; 27 NW2d 338 (1947); People v Sanford, 402 Mich 460; 265 NW2d 1 (1978).

Doud and the subsequent Burk both considered the giving or not giving of a specific intent charge. Doud required it, but the later Burk ruled it was neither required nor appropriate. Counts indirectly considered felonious assault a specific intent crime by holding evidence of intoxication was admissible to negate the required intent. Sanford, the most recent case, in considering the definition of criminal assault which is the basis of felonious assault ruled that " 'a simple criminal assault "is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery” ’ ”, 402 Mich 460, 479. The significance of this holding, obviously, is that the second kind of criminal assault focuses on whether the assaultee was by defendant’s acts put "in reasonable apprehension of receiving an immediate battery”, and, if he was, it would be immaterial whether or not the defendant intended to do bodily injury to the assaultee.

Doud is a particularly interesting case in light of both Burk and Sanford as we shall develop. The critical facts in Doud were that Doud confronted men trying to put up a boundary fence, on what Doud claimed was his property, by ordering them off and showing his revolver. The case report continues:

"At the trial defendant was permitted to testify fully as to his intent and claimed he entertained no purpose to inflict injury. Even though such claim was refuted by his acts, demeanor and words, defendant had a right to go to the jury with what he claimed to have been his purpose. The trial judge gave the jury no instruction upon the issue of defendant’s intent, although requested to do so, but charged:

" 'The people say that he pointed the gun at Davenport; and the people say that he pointed the gun under such circumstances as imported an intent to fire his gun off. The people do not say that he did intend to (it is not necessary that they should say it or prove it), but if he pointed a gun under such circumstances that Davenport had reasonable grounds to believe that he intended to fire it off, and it was pointed at Davenport at the time, then he is guilty of the offense charged.’

"While the fear of one assaulted, arising from reasonable apprehension of bodily hurt, threatened by another having means and ability to inflict the same, is mentioned in some of the books as proper evidence to go to the jury, we do not understand that such fear governs upon the question of the intent or purpose of an accused under this statute. We think defendant was entitled to have the following portion of his sixth request to charge given:

" 'As to what his intention actually was you must determine that, if you are able to, from the evidence in the case, considering what he did, what he said, and what he testifies to as his intent.’” 223 Mich 120, 124-125.

This Court reversed and granted a new trial.

In Burk, the defendant, as in Doud, was convicted of felonious assault and had requested a charge including "[t]o convict the defendant, you must find that * * * [defendant] did intend to inflict bodily harm upon him”. This Court replied, "We think the instruction asked is objectionable in that it assumed that intent was a necessary element of the offense charged. * * * If defendant assaulted Foster with a dangerous weapon he would be guilty of the offense charged, regardless of his intent to injure him * * 238 Mich 485, 489. The conviction was affirmed.

Burk did not specifically overrule Doud. In fact, it did not even refer to it. But the Burk rule is diametrically opposite the Doud rule on the necessity of charging specific intent, so Burk supersedes Doud on that point.

But the trial court charge in Doud is interesting from another point of view. The charge states in part:

"if he pointed the gun under such circumstances that Davenport [the assaultee] had reasonable grounds to believe that he intended to fire it off, and it was pointed at Davenport at that time, then he is guilty of the offense charged.” 223 Mich 120, 124-125.

This charge anticipates the ruling in Sanford — " 'a simple criminal assault "is made out from * * * an unlawful act which places another in reasonable apprehension of receiving an immediate battery” ’ ”, 402 Mich 460, 479.

As quoted above, this Court in Doud said:

"While the fear of one assaulted, arising from reasonable apprehension of bodily hurt, threatened by another having means and ability to inflict the same, is mentioned in some of the books as proper evidence to go to the jury, we do not understand that such fear governs upon the question of the intent or purpose of an accused under this statute.” 223 Mich 120, 125.

As a consequence, it must be recognized that the rule of law as stated by this Court in Doud as to an assault not existing if the victim is merely put in reasonable fear or apprehension of what the defendant is doing has changed, too, and Doud is overruled here also.

This leaves only Counts out of line with the rule that specific intent is not an element of felonious assault. It is true that this Court in that case said:

"The offense charged in the information, as well as the lesser and included offense of which defendant was convicted [felonious assault], involved a specific intent as an essential element. Presumably the testimony indicating that defendant had been drinking was offered for such bearing as it might legitimately have on defendant’s mental condition, and on the reason or reasons for his conduct as disclosed by the testimony of the various witnesses in the case.” 318 Mich 45, 47-48.

However, the opinion does not indicate that the issue whether specific intent is an element of felonious attempt was a direct issue in that case. Even if it were, at this point, we hold that the Burk-Sanford precedent supersedes.

As supporting this conclusion, it is of interest that the Court of Appeals, beginning with People v Richard Johnson, 42 Mich App 544; 202 NW2d 340 (1972), has followed the rule of Burk. The Court of Appeals in Johnson said:

"By the clear language of the [felonious assault] statute the crime is merely a simple assault committed with a dangerous weapon. While the statute specifically excludes certain types of specific intent, the only intent that would appear to be required is the intent necessary to constitute a simple assault.

"Since assault and battery is not a specific intent crime that is excused by voluntary drunkenness, and felonious assault as defined by MCL 750.82, supra, is but an assault committed with a dangerous weapon, felonious assault is not a specific intent crime to which the defense of voluntary intoxication is available.” 42 Mich App 544,.546-547.

In addition, it is noteworthy that the proposed Michigan Criminal Jury Instructions follow the Burk rule, CJI 17:4:01.

VI. Application to Johnson and Ring

A. People v Johnson

The instruction given by the trial court informed the jury of the elements of felonious assault in two ways. First the pertinent parts of the statute were read to the jury:

"[T]he statute from which the information is drawn, so far as the same [is] material provides as follows: any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon but without intending to commit the crime of murder and without intending to commit great bodily harm less than murder shall be deemed guilty of a felony.”

Second, the jury was also told:

"If you are satisfied from the testimony that Mr. Johnson committed an intentional assault with a revolver which is a dangerous weapon.”

We find this instruction was sufficient to apprise the jury of the elements necessary for felonious assault, i.e., one, an assault; two, with a dangerous weapon.

B. People v Ring

The instruction that the trial court had agreed to give is in error. It requires an "intent to do bodily injury” as a mandatory element of felonious assault. A specific intent is not an element of felonious assault. The prosecution need only show the general criminal intent to commit an unlawful act necessary for simple assault.

VII. Conclusion

We granted leave to appeal in these cases to determine whether felonious assault includes specific intent as an element. We conclude that specific intent is not an element of felonious assault.

Therefore, the instruction given by the trial court in Johnson defining intentional assault as an element of -felonious assault was sufficient. We affirm the Court of Appeals in Johnson.

However, the instruction the trial court has agreed to give in Ring requiring an intent to injure is erroneous. We reverse the trial court’s decision to give that instruction and remand for instructions consistent with this opinion.

Coleman, C.J., and Blair Moody, Jr., J., concurred with Williams, J.

Ryan, J.

We agree with Justice Levin’s reasoning in disposing of the only issue upon which leave to appeal was granted in this case — whether felonious assault includes specific intent to do bodily harm as an element.

We disagree, however, with Justice Levin’s reading of this Court’s opinion in People v Sanford, 402 Mich 460; 265 NW2d 1 (1978), regarding the definition of criminal assault and his conclusion that in Michigan unlawfully putting another in reasonable apprehension of injury is not a crime. In Sanfordfour members of the presently seated Court adopted the reasoning and accepted the conclusion of Justice Williams that a simple criminal assault "is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery”.¹ 402 Mich 460, 479.

That was not this Court’s first pronouncement on the matter. This Court said as much in People v Carlson, 160 Mich 426; 125 NW 361 (1910).

In contrast to my brother’s suggestion that in Sanford Justice Williams adopted a definition of criminal assault different from that which was noted in Carlson, we read Sanford as merely clarifying and restating the Carlson observation that there are two kinds of criminal assault — attempted battery and putting in fear.

In Carlson, admittedly with something less than model clarity, this Court stated that there are two definitions of criminal assault which, "taken together, may be said to include all necessary elements”:

" 'An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.’ 3 Cyc, p 1020.”

" 'An assault is any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of immediate injury to a human being.’ 2 Bishop on Criminal Law (7th ed), § 23.” 160 Mich 426, 429.

In Sanford, while quoting the definitions of criminal assault as they were stated in Perkins on Criminal Law (2d ed), p 117, we noted that Carlson acknowledged the existence of at least two forms of criminal assault:

"We also hold that either the Cyclopedia or the Bishop definition in Carlson is an adequate definition of a form of assault and that both forms are actionable in the criminal laws.” Sanford, supra, 479. ²

My brother further suggests that even conceding arguendo that Carlson established the existence of the two forms of criminal assault here in question, the viability of the two definitions set forth there was undermined by this Court’s intervening decision in People v Doud, 223 Mich 120, 125; 193 NW 884 (1923), and that in Doud the Court held that felonious assault cannot be established by proof of conduct putting another in apprehension of injury. He concludes, therefrom, that defendants Ring and Johnson, who were charged with pre-Sanford misconduct, cannot be convicted of the menacing type of criminal assault of which the Carlson and Sanford opinions spoke.

We disagree.

The Court in Doud was concerned only with the correctness of the challenged jury instructions which shifted the inquiry away from the intent of the defendant and focused instead upon the belief or fear of the victim that the defendant intended to fire a weapon at him.³ That Court properly concluded that "we do not understand that such fear governs upon the question of the intent or purpose of an accused under this statute”. 223 Mich 120, 125. (Emphasis added.) The Doud Court did not say that the accused’s intent or purpose to put the victim in reasonable apprehension of an immediate battery would not support an assault conviction.⁴

The jury in Johnson was instructed that the defendant could be convicted if he attempted to injure the victim and the assault was "intentional”, but there was no instruction that defendant may alternatively be convicted of intentionally putting the victim in reasonable fear or apprehension of an immediate injury. The instruction was deficient in two respects: it failed adequately to inform the jury of the specific intent requirement and it neglected to present the alternative form of felonious assault.

The jurors in Ring should be instructed that defendant could be convicted if he specifically intended to injure the victim, but they were not to be instructed on the alternative form of assault— the intent to put the victim in apprehension of an immediate battery. The jury should be instructed on both forms of felonious assault.

In summary, the juries in each of the cases before us should be instructed on the definitions of assault outlined in Sanford, along with a specific intent instruction that there must be either an intent to injure or an intent to put the victim in reasonable fear or apprehension of an immediate battery.

We would reverse Johnson and remand for a new trial and affirm the trial court’s decision in Ring as modified and remand for trial.

Fitzgerald, J., concurred with Ryan, J.

1 This is acknowledged in relation to the intoxication defense. Generally intoxication is a defense only in specific intent crimes. In this context, it has been found that the defense is not available to one charged with simple assault, People v Comstock, 115 Mich 305, 312; 73 NW 245 (1897).

1 Justice Williams’ opinion was signed by Chief Justice Coleman and Justice Moody. In a separate opinion Justice Fitzgerald and I concurred in the result reached by Justice Williams and the disposition of the assault issue.

2 The Court of Appeals in Sanford had misinterpreted the Carlson definition in the conjunctive to include a requirement that "the victim be put in reasonable fear of immediate harm” before a conviction of criminal assault would lie. We concluded that they had been framed in the disjunctive and that either definition could stand alone. See Sanford, supra, 475, citing People v Sanford, 65 Mich App 101, 105; 237 NW2d 201 (1975).

3 "At the trial defendant was permitted to testify fully as to his intent and claimed he entertained no purpose to inflict injury. Even though such claim was refuted by his acts, demeanor and words, defendant had a right to go to the jury with what he claimed to have been his purpose. The trial judge gave the jury no instruction upon the issue of defendant’s intent, although requested to do so, but charged:

" 'The people say that he pointed the gun at Davenport; and the people say that he pointed the gun under such circumstances as imported an intent to fire his gun off. The people do not say that he did intend to (it is not necessary that they should say it or prove it), but if he pointed a gun under such circumstances that Davenport had reasonable grounds to believe that he intended to fire it off, and it was pointed at Davenport at the time, then he is guilty of the offense charged.’

"While the fear of one assaulted, arising from reasonable apprehension of bodily hurt, threatened by another having means and ability to inflict the same, is mentioned in some of the books as proper evidence to go to the jury, we do not understand that such fear governs upon the question of the intent or purpose of an accused under this statute. We think defendant was entitled to have the following portion of his sixth request to charge given:

" 'As to what his intention actually was you must determine that, if you are able to, from the evidence in the case, considering what he did, what he said, and what he testifies to as his intent.’ ” Doud, supra, 124-125.

4 In Doud, the defendant requested that the jury be instructed that:

"Applying this definition to the facts in this case, I instruct you that pointing a loaded gun at another within shooting distance, if the person pointing the gun intends to discharge it, is an assault. But it is not an assault to point a loaded gun at another if there is no intention to do bodily harm.”

The trial judge denied defendant’s request. On appeal, the defendant claimed that the failure to give his requested instruction was a reversible error (see Michigan Supreme Court Records and Briefs [112-128 April Term, 1923], Docket No 121, Appellant’s Brief, p 8), but this Court did not refer to this requested instruction or hold that the failure to give it was reversible error. Accordingly, we conclude that Doud did not hold that an intent to injure or batter is required in every criminal assault case.