210 N.W.2d 506 (Mich.App. 1973), 14221, People v. Berrier

Docket Nº:14221.
Citation:210 N.W.2d 506, 48 Mich.App. 454
Opinion Judge:Before QUINNand BRONSON and O'HARA, JJ
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harrison BERRIER, Defendant-Appellant.
Judge Panel:Before QUINN, P.J., and BRONSON and O'HARA, [*] JJ.
Case Date:July 24, 1973
Court:Court of Appeals of Michigan
 
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Page 506

210 N.W.2d 506 (Mich.App. 1973)

48 Mich.App. 454

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Harrison BERRIER, Defendant-Appellant.

No. 14221.

Court of Appeals of Michigan, Division No. 2.

July 24, 1973

Released for Publication Oct. 2, 1973.

Leave to Appeal Denied Nov. 30, 1973.

Page 507

[48 Mich.App. 456] Francis D. Ross, Belleville, Edmund J. Sikorski, Jr., Ann Arbor, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and BRONSON and O'HARA, [*] JJ.

QUINN, Presiding Judge.

A jury convicted defendant of first degree murder, M.C.L.A. § 750.316; M.S.A. § 28.548. He was sentenced and he appeals.

The decedent was defendant's brother-in-law. Animosity existed between them, arising from the fact that decedent had testified against defendant in a prior criminal trial. Defendant testified that about 9:30 on the night of March 30, 1970, decedent came to defendant's home and said to defendant that decednt had heard that defedant was 'looking' to kill him. To this defendant replied, 'No Joe, you're not worth it.' Defendant then related that shortly thereafter he and decedent went for a ride, settled their differences and shook hands.

Defendant returned home and watched TV. He [48 Mich.App. 457] was drowsing about 11:15, when he heard a ruckus at the outside door, and defendant testified that he heard his wife scream, 'Look out he's got a gun or look out, he's going to kill you.' Defendant said that he grabbed a loaded .22 rifle standing against the wall next to him, stepped through the kitchen door, saw the figure of an unknown man, who appeared to be violent, entering the kitchen. That defendant shot the man and later called the police. Decedent was shot seven times.

It is defendant's claim in his first two issues on appeal that the evidence does not support a verdict of guilty of first degree murder and that such a verdict is contrary to law. We consider that this is one issue and discuss it at the end of this opinion.

During defendant's direct testimony, he attempted to relate the statement allegedly made by his wife, 'He is going to kill you.' The prosecutor objected on the basis of hearsay and was sustained. On appeal, defendant asserts this was reversible error because the statement was admissible...

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