312 N.W.2d 629 (Mich. 1981), 65247, People v. King

Docket Nº:Docket No. 65247.
Citation:312 N.W.2d 629, 412 Mich. 145
Opinion Judge:PER CURIAM.
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Russell Evern KING, Defendant-Appellant.
Attorney:[412 Mich. 147] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert E. Weiss, Pros. Atty., and Donald A. Kuebler, Chief, Appellate Div., for the people. [412 Mich. 148] Reese W. Stipes for defendant.
Case Date:November 23, 1981
Court:Supreme Court of Michigan

Page 629

312 N.W.2d 629 (Mich. 1981)

412 Mich. 145

PEOPLE of the State of Michigan, Plaintiff-Appellee,


Russell Evern KING, Defendant-Appellant.

Docket No. 65247.

Supreme Court of Michigan.

November 23, 1981

Page 630

[412 Mich. 147] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert E. Weiss, Pros. Atty., and Donald A. Kuebler, Chief, Appellate Div., for the people.

[412 Mich. 148] Reese W. Stipes for defendant.


We address the scope of the examining magistrate's function and appellate review of that function when an appellant alleges error in the decision of the examining magistrate, because our reading of the Court of Appeals opinion in this case and People v. Oster, 67 Mich.App. 490, 241 N.W.2d 260 (1976), suggests a need to clarify our decisions.


The defendant was charged with first-degree murder for shooting Rick Stroble to death on December 30, 1978. The evidence at the preliminary examination showed that the defendant and his wife were separated and in the process of obtaining a divorce. The decedent was living with the defendant's wife and children. From midafternoon on December 29, until the early morning hours of December 30, the defendant consumed a considerable quantity of intoxicants. Around 6:30 a. m. on December 30, the defendant telephoned his wife's residence, spoke with the decedent, and made a threatening comment. The decedent taunted the defendant. Armed with a .22-caliber pistol, the defendant appeared at the door of the house 30 minutes later. The decedent attempted to block the defendant's entry into the house by leaning against the door. The defendant shot through the door, killing the decedent.

Barbara King, the defendant's daughter, stated that she had never heard the defendant threaten the decedent and never seen any problem between them. Ms. King said that the defendant was drunk and stumbling and that his talk was slurred. James King, the defendant's son, testified [412 Mich. 149] that while his father had threatened the deceased before, he had never taken any action; and he had never seen his father violent with the decedent. James King also acknowledged that defendant's speech was slurred and that he staggered. Larry Rushton testified that he drank with the defendant from 2 p. m. December 29 until 5:30 a. m. December 30. The defendant was driving erratically on the road and had smoked marijuana at a party.

The Kings testified that when the defendant came to the house he was acting "crazy", "weird"; no one answered the door for two or three minutes when he came; he would not have known who was holding the door, or who was behind it when he shot. Defendant's friend, Dixie Pearce, to whose home he went after the shooting, testified concerning the defendant's statements that he had gone home to get his keys to the Duck Club to which he belonged; they would not let him in; he shot through the door; and the decedent was in the way.

The examining magistrate bound the defendant over for trial on the charge of manslaughter:

"It is my obligation as a district judge to determine whether or not a crime has been committed and what crime and whether or not there is reasonable or probable cause to believe the respondent did perpetrate that crime. We're dealing with statutory offenses for purposes of the record and for enumeration, (MCL 750.316; MSA 28.548) indicates that all murder which shall be perpetrated by any means of poison, lying in wait, or any kind of wilful, deliberate and premeditated killing, or which shall be committed in

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the perpetration, or attempt to perpetrate arson, et cetera, shall be first-degree murder.

"Intoxication, in order to constitute defense to specific intent crimes, in this case only, first-degree murder, [412 Mich. 150] must be so complete that defendant didn't know what he was doing, or if he knew what he was doing, he didn't know why or didn't know that what he was doing was naturally culpable or-ah-causing harm alleged to the intended. That's a-ah-Court of Appeals case cited (People v. Berryhill, 8 Mich.App. 497, 154 N.W.2d 593 (1967)). Evidence of intoxication can-ah-negate requisite specific intent necessary to sustain defendant's conviction for a crime which requires proof of specific intent. In this case it would be only relative to the first-degree murder charge. There is no error in the court's refusal to instruct on a defense of intoxication where the defendant was charged with second-degree murder, which is not a specific intent crime. That comes from the case previously cited. To entirely eliminate voluntary intoxication as a defense to a specific intent crime defendant must while sober have formed the specific intent requisite to commission of the particular crime he is charged with-ah-committing, that, to-wit: is the crime charged of first-degree murder, not speaking yet to second-degree murder.

"It is my opinion, after listening to the facts of this case that I do not find sufficient evidence to warrant the charge of first-degree murder.

"Therefore, we're talking about second-degree murder and we're talking about manslaughter. What degree of crime has this court found? Speaking to that, there is a specific reference to that exact point in (People v. Lilley, 43 Mich. 521, 5 N.W. 982 (1880)). It says, when reflection and deliberation are present and it appears that the assault was made with the intent to take a life, under circumstances where the killing would-killing would not be lawful-ah-or excusable then if the death should ensue the assaulter would be guilty of assault with intent to commit murder.

"In this particular case, I have difficulty finding that the respondent acted with the intent to take a life. I'll indicate that there is sufficient evidence upon this record to indicate that he did not.

"It is not necessary, as the Court so aptly points out in (People v. Raher, 92 Mich. 165, 52 N.W. 625 (1892)), it is not necessary for the prosecution to show that the assaulter extended, entertained a specific intent to kill [412 Mich. 151] the person who was injured where it appears that he committed an assault under such circumstances that the natural and usual consequences would be to take a human life.

"I find it extremely difficult, if not impossible, to find that the natural and unusual (sic ) consequence of firing that gun through that door in that situation which I listened to testimony for six hours constitutes a natural and usual consequence which could be found in the respondent.

"Therefore, it is my opinion that the prosecution has established the burden of proof to show that the crime of manslaughter has been committed and that there is reasonable or probable cause to believe the respondent committed that offense."


The prosecutor sought review of the district judge's decision on binding over. The circuit court identified its task as a review for abuse of discretion under People v. Doss, 406 Mich. 90, 276 N.W.2d 9 (1979), and People v. Dellabonda, 265 Mich. 486, 251 N.W. 594 (1933), and affirmed. The prosecutor pursued the issue to the Court of Appeals, and that Court reversed in an unpublished per curiam opinion of May 8, 1980:

"As the magistrate noted, there was evidence tending to negate deliberation, premeditation and the specific intent to kill. Such evidence suggested defendant might have been drunk at the time, that

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he was angry, jealous and possibly provoked by the decedent. Yet, it seems clear that, on the magistrate's inquiry as to whether a crime had been committed, there was evidence of first-degree murder. The magistrate's inquiry should have ended at that point and the defendant should have been bound over on the first-degree murder charge. By weighing defenses and analyzing conflicting evidence, the magistrate exceeded the scope of his responsibilities. This is best illustrated by a (quotation) from People [412 Mich. 152] v. Oster, 67 Mich.App. 490, 496, 241 N.W.2d 260 (1976). There, in response to defendant's contention that the element of malice was negated by provocation, we upheld that magistrate's bindover upon an open murder charge, stating:

" 'It must be remembered that it is not the function of the examining magistrate to carefully weigh the evidence and discharge the accused when...

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