People v. Collins
| Decision Date | 04 March 1968 |
| Docket Number | No. 47,47 |
| Citation | 380 Mich. 131,156 N.W.2d 566 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alfred COLLINS and Eddie Collins, Defendants-Appellants. |
| Court | Michigan Supreme Court |
Robert F. Leonard, Pros. Atty., by Donald A. Kuebler and Paul G. Miller, Jr., Asst. Pros. Attys., Flint, for plaintiff-appellee.
Perlman & Garber, Detroit, for defendant-appellants.
Before the Entire Bench.
Defendants are serving terms in prison as a result of guilty pleas entered on January 9, 1963, to a charge of second degree murder.
On February 15, 1965, defendants filed with the trial court motions to vacate their pleas and set aside their convictions and requested a new trial. The motions were denied by the circuit judge.
An application for leave to appeal to the Court of Appeals was denied on April 21, 1966, for lack of a meritorious question for review. This Court on December 29, 1966, granted defendants' application for leave to appeal. 378 Mich. 745.
Defendants and one James Armstrong were charged with first degree murder, pursuant to the statute 1 which permits such a charge where a killing results during armed robbery. The participant James Armstrong, who actually robbed a store and killed one of the employees, pled guilty to the charge of first degree murder.
After Armstrong pled guilty on January 9, 1963, the prosecuting attorney moved to amend the information filed against the two defendants herein so as to change the charge from first to second degree murder. This amendment was concurred in by the defense counsel and the trial judge. To this second degree murder charge defendants pled guilty and were sentenced.
Defendants contend that the trial court erred in accepting their pleas of guilty to murder in the second degree, arguing they could only be guilty of murder in the first degree or guilty of no crime at all. C.L.1948, § 750.316 (Stat.Ann.1954 Rev. § 28.548) reads as follows:
'All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, Or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.' (Emphasis supplied.)
C.L. 1948, § 750.317 (Stat.Ann.1954 Rev. § 28.549) reads as follows:
'All other kinds of murder shall be murder of the second degree, and shall be punished by imprisonment in the state prison for life, or any term of years, in the discretion of the court trying the same.' (Emphasis supplied.)
The distinction between accessories and principals to crimes has been abolished in Michigan. C.L. 1948, § 767.39 (Stat.Ann.1954 Rev. § 28.979). This statute reads as follows:
'Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or Procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.' (Emphasis supplied.)
The amended information for murder in the second degree pursuant to C.L. 1948, § 750.317 (Stat.Ann.1954 Rev. § 28.549) was filed January 9, 1963, and read as follows:
'Be informed that Eddie Collins and Alfred Collins, heretofore, to wit: on or about the 23rd day of June in the year 1962 at the city of Flint in said Genesee county, feloniously, unlawfully, but not with premeditated and calculated malice, did kill and murder one Anne Kelush, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Michigan.'
The second contention of defendants is that the pleas of guilty were not made freely, understandingly and voluntarily, without undue influence, compulsion or duress and without a promise of leniency, as required by G.C.R. 1963, 785.3, and therefore their pleas of guilty should have been set aside and a new trial ordered.
Defendants' third contention is that the trial court erred in convicting the defendant Eddie Collins of a crime in which he was not a participant.
The trial court before permitting the amended information to be filed, and before accepting the pleas of guilty, discussed with the prosecuting attorney the legal questions involved. He concluded that, in reliance upon the cases of People v. Treichel, 229 Mich. 303, 200 N.W. 950, and People v. Wright, 315 Mich. 81, 23 N.W.2d 213, he would permit the filing of the amended information and accept the pleas.
The language in People v. Treichel, supra, relied upon by the trial court, which the court believed authorized it to accept the second degree murder plea, is as follows (p. 307, 200 N.W. p. 951):
'While the statute constitutes murder committed in the perpetration of burglary as in the first degree, it does not exclude all lesser degrees If the evidence warrants.' (Emphasis supplied.)
In Treichel defendants contended the trial court should have instructed the jury to confine their deliberations to first degree murder and, if unable to convict of murder in the first degree, they must find defendants not guilty. Of this Justice Wiest said (p. 307, 200 N.W. p. 951):
'The information charged murder without specifying method, or means, or circumstances, and, under the information, murder in either degree, or manslaughter, might be found.'
Justice Wiest further stated (p. 308, 200 N.W. p. 951):
'We think the evidence left the question of degree and the included crime of manslaughter to the jury, and the court avoided instead of committed error in so submitting it. In People v. Utter, 217 Mich. 74, 185 N.W. 830, we held:
"A simple information charging the common-law essentials of murder may be laid, and the jury convict of any degree which the proof establishes."
We note the information in the instant case charged statutory second degree murder rather than common-law murder. Therefore, the Treichel Case, supra, and other cases charging common-law murder do not apply in this case.
We consider first the acts of defendant Alfred Collins to determine whether the evidence against him warrants a conviction of second degree murder.
Alfred's participation was summed up by the trial judge at the sentencing of this defendant and, if true, indicates first degree murder:
'You conceived, planned and urged the commission of this offense. I am convinced that James was chosen for the actual holdup because his identity was not as well known as yours, he having arrived only about three weeks before from Terrill, Arkansas. He was furnished with the gun by you. When James lost his nerve at the Koenig Market, he was by encouragement or even coercion made to continue to the Kelush Market to continue the plan to hold up a store and get some money.
'When the crime was complete and Mrs. Kelush was dead on the floor of the store, you took $26.00 of the $30.00 and gave $4.00 back to Armstrong and then you even turned your back on Armstrong and gave him no aid after you discovered that something had happened.
'My conclusion is that without you this crime would never have occurred; and at all times, from the time of the formation of the plan until its execution at the Kelush Market, it was you who kept the plan going.
'My opinion is that moral guilt is greater in you than it is on James Willie Armstrong, the man who pulled the trigger.'
In the case of People v. Repke, 103 Mich. 459, 61 N.W. 861, Justice Long, writing for the Court, said (p. 470, 61 N.W. p. 864):
In People v. Nunn, 120 Mich. 530, 79 N.W. 800, Justice Long, again writing for the Court, said (p. 535, 79 N.W. p. 802):
In People v. Utter, 217 Mich. 74, 185 N.W. 830, the defendant was charged with first degree murder for a homicide committed in the perpetration of a robbery. Proofs were confined to that crime and the Court held that no reasonable inference of any other degree of murder could be drawn. The Court held there was no error in the charge to the jury--that their verdict should be murder in the first degree or not guilty--stating (p. 86, 185 N.W. p. 834):
'While murder is defined by statute in this state, and the killing of a human being under specified circumstances made murder in the first degree, it also includes the common-law definition, and, where appropriate, a simple information charging the common-law essentials of murder may be laid, and the jury convict of any degree which the proof establishes.'
The Court further stated, after discussing holdings of other jurisdictions (p. 88, 185 N.W. p. 835):
Justice Kelly, writing for this Court, in People v....
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...United States, (D.C.Cir., 1968), (Decided November 21, 1968, 4 Crim.L.Rptr. 2167). See, also, footnote 23. Compare People v. Collins (1968), 380 Mich. 131, 156 N.W.2d 566, discussed, infra, footnote 36, and McCoy v. United States (1966), 124 U.S.App.D.C. 177, 363 F.2d 306.26 See quotation f......
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...28.1096 has any meaning left, it surely applies to the contention now before us, and we so hold. We recognize that People v. Collins, 380 Mich. 131; 156 N.W.2d 566 (1968), did not involve a bargained plea and is otherwise factually dissimilar to this case of Hooper. However, at page 135 of ......
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