People v. Abernathy, 145.

Citation253 Mich. 583,235 N.W. 261
Decision Date27 February 1931
Docket NumberNo. 145.,145.
PartiesPEOPLE v. ABERNATHY.
CourtSupreme Court of Michigan

OPINION TEXT STARTS HERE

Error to Circuit Court, Cheboygan County; Victor D. Sprague, Judge.

Charles Abernathy was convicted of murder in the first degree, and he brings error.

Affirmed.

Argued before the Entire Bench. Henry E. Naegely, of Saginaw, and Lisle Shanahan, of Charlevoix, for appellant.

Ward I. Waller, Pros. Atty., of Cheboygan, for the People.

BUTZEL, C. J.

Charles Abernathy, defendant, was found guilty of murder in the first degree, and sentenced to the state's prison for life. He and John Koch, the murdered man, lived in Cheboygan, Mich. They had been friends for years. Both worked along the water front, and as a side occupation were engaged together in the manufacture and sale of moonshine whisky. They lived in the same block; there being an alley between their homes. Their families associated together, and, after the death of defendant's wife, the relation between defendant and Koch's wife became very intimate. In January, 1929, Koch and defendant had a serious quarrel at the latter's home. The police were called in, and Koch was locked up for the time being in order to avoid serious trouble.

Defendant kept meeting Mrs. Koch clandestinely for immoral purposes, and on the 26th day of September, 1929, they met at a place of assignation, at which time, according to her testimony, Mrs. Koch told defendant that their relations would have to terminate; that it was the last time she would meet him; that trouble with her husband was threatened, and that she was being talked about; that it might result in her children being taken away from her, and that she and her husband and family were shortly moving to Wisconsin; that defendant could not stop her from going; and that they were leaving as soon as the job on which Koch was working was completed. The testimony of Mrs. Koch further shows that defendant thereupon told her that, if she did go, she would be sorry, that Mrs. Koch told him that he could not stop her, as she was Koch's wife, and that defendant thereupon said: ‘I'll show you.’ Defendant denied that this conversation took place.

Defendant for 17 years had worked at the Olds dock. On September 27, 1929, the morning following this alleged conversation, he went to work shortly before 7 a. m. A few minutes later, Koch reached the Olds dock on his way to work. A loud shot was heard, but no one saw it fired. The testimony shows that Koch was shot from an elevation as he was passing along a covered coal shed of the Old's dock. One of the witnesses for the people, Edward Davis, had been walking ahead of Koch. At the sound of the shot, followed by a loud shout, he turned around and saw Koch running toward him holding his hand to his right breast. Koch said to the witness: ‘Ted, help me. Charley shot me. I am going to die.’ He immediately became unconscious. Davis laid him down and started towards the waterworks to phone for a doctor. On his way he met two other acquaintances who were driving a truck; they hurried to where Koch was lying, and took him immediately to a doctor's office, where he died.

A load of shot from a shotgun shell had entered his body and punctured the heart. The doctor testified that the shot must have been fired from a distance of from 30 to 40 feet and from an elevation of 10 to 14 feet. Koch's lunch box was found near where it is supposed he was shot. Nearby wads from a Peters 12 gauge shotgun shell were also found. They were picked up shortly after the murder occurred and found to be dry although the testimony shows that everything on the ground was damp, owing to the heavy dew early in the morning at that time of the year. It was shown that defendant's son owned and kept at defendant's home a shotgun which a Peters' 12 gauge shell would fit. It was not seen after the murder, and no explanation given for its disappearance. Peters' 12 gauge shotgun shells were found in defendant's home shortly after the murder.

It was the theory of the prosecution that defendant, upon arriving at his place of work after attending to his immediate duties, went to the west compartment of the coal shed, and climbed on top of the high coal...

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21 cases
  • People v. Johnson
    • United States
    • Court of Appeal of Michigan — District of US
    • 8 Mayo 1978
    ...predicate a finding of guilty of murder in the first degree. People v. Vail, 393 Mich. 460, 227 N.W.2d 535 (1975). People v. Abernathy, 253 Mich. 583, 235 N.W. 261 (1931). To the extent that the case of People v. Qualls, 9 Mich.App. 689, 158 N.W.2d 60 (1968), holds to the contrary, it is ex......
  • People v. Garcia
    • United States
    • Michigan Supreme Court
    • 7 Diciembre 1976
    ...predicate a finding of guilty of murder in the first degree. People v. Vail, 393 Mich. 460, 227 N.W.2d 535 (1975). People v. Abernathy, 253 Mich. 583, 235 N.W. 261 (1931). To the extent that the case of People v. Qualls, 9 Mich.App. 689, 158 N.W.2d 60 (1968), holds to the contrary, it is ex......
  • People v. Hampton
    • United States
    • Michigan Supreme Court
    • 26 Noviembre 1979
    ...see People v. Garcia, 398 Mich. 250, 247 N.W.2d 547 (1976); People v. Johnson, 397 Mich. 686, 246 N.W.2d 836 (1976); People v. Abernathy, 253 Mich. 583, 235 N.W. 261 (1931); People v. Eaton, 59 Mich. 559, 26 N.W. 702 (1886); People v. Miller, 78 Mich.App. 336, 259 N.W.2d 877 (1977); People ......
  • People v. Declerk
    • United States
    • Michigan Supreme Court
    • 2 Mayo 1977
    ...crime charged to warrant putting the defendant to his defense. People v. Vail, 393 Mich. 460, 227 N.W.2d 535 (1975); People v. Abernathy, 253 Mich. 583, 235 N.W. 261 (1931). In the case at bar, the trial court apparently found that the prosecutor had presented a prima facie case against def......
  • Request a trial to view additional results

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