People v. Milhem

• Decision Date: 24 December 1957
• Docket Number: No. 68,68
• Citation: 87 N.W.2d 151,350 Mich. 497
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Sophie MILHEM, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 151

87 N.W.2d 151

350 Mich. 497

The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Sophie MILHEM, Defendant and Appellant.

No. 68.

Supreme Court of Michigan.

Dec. 24, 1957.

Porritt, Freud, Toppin & Louisell, Detroit, for appellant.

Thomas M. Kavanagh, Atty. Gen., of Michigan, Samuel J. Torina, Sol. Gen., Samuel H. Olsen, Pros. Atty., Wayne, County, Samuel Brezner, Chief Appellate Lawyer, Ronald J. Prebenda, Asst. Pros. Atty., Detroit, for the People.

Before the Entire Bench.

EDWARDS, Justice.

Sophie Milhem was tried in the Recorder's Court of the city of Detroit on a charge of murder of her husband, Alexander Milhem, who throughout this record is known as Danny. The information filed in the case recited as follows:

'In the name of the People of the State of Michigan, Gerald K. O'Brien, Prosecuting Attorney in and for the County of Wayne, who prosecutes for and on behalf of the People of said State in said Court, comes now here in said Court in the May term thereof, A.D. 1955, and gives the said Court to understand and be informed that Sophie Milhem, late of the said City of Detroit, in said County, heretofore, to-wit, on the 26th day of May, A.D. 1955, at the said City of Detroit, in the County aforesaid, feloniously, wilfully and of her malice aforethought, did kill and murder one Alexander Milhem; 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.'

and was drawn under the statute pertaining to murder, C.L.1948, § 750.316 et seq. (Stat.Ann.1954 Rev. § 28.548 et seq.)

At trial testimony was presented which could have substantiated a verdict of murder in the first degree. The trial judge in presenting the case to the jury also instructed the jury as to murder in the second degree and as to manslaughter, as well as justifiable and excusable homicide. His charge concluded:

'You may find the defendant guilty as charged; that is, guilty of murder in the first degree; or you may find her guilty of murder in the second degree; or you may find her guilty of manslaughter; or you may find her not guilty.'

Defendant's counsel took exception to the portions of the charge having to do with manslaughter claiming no competent testimony upon which a verdict of guilty of manslaughter could be found was contained in the evidence presented to the jury.

No prior request for instruction on this point had been submitted by defendant. The judge in effect overruled the objection. Jury brought in a verdict of guilty of manslaughter and the plaintiff was sentenced to serve 5 to 15 years.

On appeal to this court the crucial question for our determination appears to be, was there evidence to support the portion of the trial judge's charge which pertained to manslaughter and the jury verdict of manslaughter in this case. Our answer of necessity requires a recital of the facts. Etta Howard supplies one startling eyewitness view of what happened on May 26th:

'My name is Etta Howard. I live at 5026 Commonwealth. I was awake at 7:00 A. M. May 26, 1955. I was sitting in my window; I had just sat down to read the morning paper. I heard the shots but I didn't recognize them as shots. After I heard the noise of the shots, the car seemed to hesitate just slightly and then it came on slowly. It moved up in front of 5022. I could not estimate how many feet it moved up from the time that I first heard the shots. It would have passed my house and it was practically past the second house. It struck the car ahead of it. The right front tire was turned into the curb as it hit the other car. I continued to watch the automobile. I thought it was strange that no one got out of it for a few seconds. Then the door opened and this woman got out. Her purse dropped on the pavement. She picked it up, turned around and reached in and picked up the gun off the floor of the car. I saw the gun laying there and I saw her pick it up. She shut the door and ran across the corner of our lot and in between the two houses. The woman I saw is Sophie Milhem. She was hurrying.'

[350 Mich. 501] At 7:12 a. m. a police officer in a scout car arrived at the scene in response to a call and found Danny Milhem behind the driver's seat in a 1953 Chevrolet with a bullet hole in his right cheek, bleeding profusely. He was still breathing.

Danny Milhem died at Receiving Hospital at 7:30 a. m. this same morning.

Also on the same morning at approximately 10:00 o'clock Sophie Milhem was found unconscious due to an overdose of barbiturates in the garage behind a house one block north of the scene of the shooting. Near her was a .25 caliber Colt automatic, an unloaded clip for the same, and additional undischarged shells.

Residual gun powder was found by police tests on Sophie Milhem's right hand indicating, according to expert testimony, that the hand had been in close proximity to a gun when it was fired.

Concerning the gun, Detective Sergeant Leedle, attached to the scientific bureau of the Detroit police department, testified that it was a semi-automatic weapon with two safeties on it; that it took approximately 6 1/2 pounds of pressure to depress the trigger and 7 to 8 pounds to depress the backstrap on the weapon, or a total of 13 to 14 pounds of pressure to fire the gun. He testified further: 'One cartridge fires every time the trigger is squeezed. To fire another cartridge you release the trigger and press again.'

Sergeant Leedle also testified to examining the 1953 Chevrolet in which he found six bullet holes. He gave as his opinion concerning these bullets 'That the line of flight was from the right side of the car to the left side, that is, from the passenger side of the car to the driver's side.'

In or near the car an officer found seven empty shell cases of a caliber designed for the weapon which has been described. There is no eyewitness testimony other than that of defendant Sophie Milhem as to what actually took place in the car prior to the discharge of the shots which Etta Howard heard.

As might be anticipated there is, of course, much more to this story than what occurred on Commonwealth Avenue at 7 a. m. on May 26, 1955. The record is replete with testimony pertaining to arguments and fights between Sophie and Danny Milhem during the course of the one and one-half years of their unhappy marital state.

As a portion of defendant's case, defendant's counsel sought to demonstrate by testimony that 'the deceased was a quarrelsome, vicious person'. There is testimony of one witness to an altercation between the two while they were driving in a car during which Danny repeatedly struck Sophie and finally threw her out of the car while it was still moving.

In still another episode Danny drove off in a car while Sophie was clinging to it with the ultimate result of her being slung into the mud and the police being called.

Many of the quarrels appear to have had as a basis Danny's undertaking to appropriate possessions or money which Sophie claimed as her own.

On cross-examination by counsel for defendant of one of the people's witnesses, Zella Jordan who testified she was a friend of Sophie Milhem, the following episode was related:

'About three weeks before May 26th, in the vicinity of Sophie's flat on West Chicago Boulevard, I remember an incident occurring. Danny was taking down some clothes and putting them in his 1949 Plymouth. He had an armful of clothes with him and he started to go back up and get some more clothes. They were separated at the time. They got into a tussle and an argument and he used terrible language and called her terrible names. A Barbara Wakin and Jeannie were also present. Jeannie got excited and called the police at Petosky [station]. Danny pushed Sophie and twisted her arm and when she got into the back seat of the car he hit her, pounded her and pulled her hair and took her foot and beat her injured leg. He was kicking her injured leg with his heel. I know that Sophie had a leg that was injured in an accident and that there was a 9 inch plate in there and that it was loose. The beating went on for 20 minutes to one-half hour before the police arrived and Danny and Sophie had a terrible scuffle in and out of the car. Danny was a bigger and stouter man than you. Sophie was saying 'Danny don't do that' and he was calling her terrible names.

'One of the policemen went upstairs with Danny and let him bring an armful of clothes down and put them in his car. Danny left, but he came back down the alley and Sophie ran over to him and he tried to run her over in the alley. He swerved the car towards her.'

It appears also that during the last three weeks before Danny's death Danny had both threatened and attempted to leave Sophie and Sophie Milhem had been served papers in a suit for divorce approximately a week before Danny Milhem's death. There is testimony that at the time of receipt of the papers in the divorce proceeding Sophie Milhem thought that she was pregnant.

Witnesses identify Danny Milhem as a big, strongly built man.

Sophie Milhem bought the gun which has previously been described three days after receiving notice of the divorce proceeding. It was her testimony at trial that she bought it for target practice. The weapon was a snub-nosed semi-automatic which expert testimony identified as illsuited to this purpose.

The record discloses Sophie Milhem's version of the night preceding the shooting. She had met Danny first at the Checker Cab garage where he worked and subsequently in the evening of the 25th she had several phone conversations with him. Shortly after midnight she picked him up in a car at the Tiger Bar, and she testified that she brought the gun with her at his request. She related various episodes which occasioned their riding around Wayne County most of the night. Early morning, she said, found them parked on Commonwealth avenue with the motor running. According to her version he...