People v. Paul

• Decision Date: 01 September 1974
• Docket Number: No. 4,4
• Citation: 236 N.W.2d 486,395 Mich. 444
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Michael PAUL, Defendant-Appellant. ,
• Court: Michigan Supreme Court

Page 486

236 N.W.2d 486

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Michael PAUL, Defendant-Appellant.

No. 4, Sept. Term, 1974.

395 Mich. 444, 236 N.W.2d 486

Supreme Court of Michigan.

Dec. 18, 1975.

William L. Cahalan, Pros. Atty., Patricia J. Boyle, Principal Atty., Research, Training & Appeals, Gerard A. Poehlman, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Gillis & La Rose by Philip A. Gillis, Detroit, for defendant-appellant.

T. G. KAVANAGH, Chief Justice.

David Paul and Randall Dirette were jointly tried for felony murder arising out of an alleged robbery. M.C.L.A. § 750.316; M.S.A. § 28.548.

The victim 'Sweet James' Combs was killed by a shotgun blast from a gun being held by Paul in a dope house.

Paul's defense was that he did not have any intent to rob and that the gun discharged accidentally.

At the close of the evidence, the court asked counsel whether there were 'any lesser included offenses in this case?' The prosecutor answered that there were none. Paul's counsel, however, disagreed:

(MR. LOUISELL):

'Now I would be lacking in candor if I did not immediately correct what I think is perhaps a good faith mistaken observation made by Mr. Weiswasser yesterday afternoon when the Court posed a question are there any included offenses, because there are included offenses in this case.

'At least since 40 Michigan and certainly since 229 Michigan (303, 200 N.W. 950), in the People v. Treichel our courts have held and consistently held that the test is not what is charged in the information or in the indictment but whether or not there is evidence which is consistent with a lesser included charge * * *.

'Where there is testimony in the record upon which a conviction of a lesser degree can be based it is error to instruct the jury that its verdict must be guilty of murder in the first degree or not guilty.

'Now in this case there are two and I preach this with some trepidation because the defendant has pleaded not guilty and upon any view of the entire testimony he is entitled to a verdict of not guilty; but as I say in being candid with the Court I must tell the Court that there are two offenses which could comport with the statute. The separate statutes to which I make reference in a moment and which by reason of the nature of the testimony that has been offered not only would be permitted but in my judgment and upon the authorities of cases including the case of People v. Milhem (350 Mich. 497, 87 N.W.2d 151 (1957)), if the Court were instructing a jury upon my request the Court would be obligated to instruct the jury that these were included offenses and that the jury can find David Paul guilty of either of them. The one is Section 750.323 ¹ which is death resulting from the intentional but not malicious discharge of a gun which is a 15-year manslaughter and the second one is the statute 752.861 (M.S.A. § 28.436(21)) which is death resulting from careless and reckless or negligent discharge of a gun which is a two-year statute and which has been on the books since 1952.'

The verdict of the court was delivered as follows:

'Viewing all of the evidence in this case, weighing it as I must against the presumption of innocence which is always present, I am compelled to find that I have a reasonable doubt as to whether there was a robbery and accordingly I acquit the Dirette and find him not guilty.

'David Paul, on the other hand, falls in a different category. I agree with Mr. Louisell that there are lesser included offenses and accordingly I find Mr. Paul guilty of manslaughter.

'Think you, Counsel.

'What about bond, Mr. Louisell?'

After a discussion of bond the following colloquy ensued:

'Mr. Louisell: May I inquire of the Court under which manslaughter statute the Court has--

'The Court: The felony manslaughter, the 15-year maximum.

'I would find and I think the record should reflect that the finding of manslaughter would fit either the aiming of the firearm intentionally without malice or that this homicide was perpetrated and committed during the course of a misdemeanor which was inherently dangerous that Mr. Disner and I discussed during the course of the closing arguments.

'I think both theories apply to the Defendant David Michael Paul.'

Appellant contends on appeal that the information did not charge the crime of manslaughter and that the verdict was not supported by the evidence. The Court of Appeals found those arguments unpersuasive and we agree.

We held today in People v. Carter, 395 Mich. 434, 236 N.W.2d 500 (1975), that there are lesser included offenses of felony murder. If the evidence adduced at trial would support conviction of a lesser included offense, and defendant has been afforded fair notice of the lesser included offense, such offense may be considered by the trier of fact. People v. Chamblis, 395 Mich. 408, 236 N.W.2d 473 (1975).

The facts of the instant case lend support to the above rules. Under the 'either/or' formulation of People v. Bufkin (on rehearing), 48 Mich.App. 290, 210 N.W.2d 390 (1973), the trial judge would have been put in a position of either freeing a person outright whom he believed guilty of manslaughter, or finding that person guilty of first degree murder even though he did not believe an armed robbery had been proven. Being put to such a choice does not serve either party or society as a whole. For that reason, we have disapproved of People v. Bufkin today in ...