People v. Allen, Docket No. 10157

• Decision Date: 27 March 1972
• Docket Number: No. 1,Docket No. 10157,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerome Wesley ALLEN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 874

197 N.W.2d 874

39 Mich.App. 483

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerome Wesley ALLEN, Defendant-Appellant.

Docket No. 10157.

Court of Appeals of Michigan, Division No. 1.

March 27, 1972.

Released for Publication June 7, 1972.

Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas M. Khalil, Asst. Pros. Atty., for plaintiff-appellee.

Before LEVIN, P. J., and R. B. BURNS and J. H. GILLIS, JJ.

R. B. BURNS, Judge.

Defendant was convicted of a felony murder. Killing a person while perpetrating or attempting to perpetrate a robbery constitutes first-degree murder in this State. ¹

Defendant's first assigned error involves analysis of one of criminal law's most fundamental principles:

'An unsupported confession should not be received as sufficient evidence of the Corpus delicti.' ² People v. Lane (1882), 49 Mich. 340, 341, 13 N.W. 622.

The prosecution was supplied with a number of 'confessions' in the present case due to defendant's tendency to inform his friends and jail inmates that he had shot the victim while attempting to rob him.

Evidence independent of the confessions clearly established the victim was shot by two men and that defendant was connected with the killing. ³

An essential requirement in a first-degree murder prosecution under the felony-murder theory is proof of one of the independent felonies listed in the statute. ⁴

Defendant contends that it was necessary for the prosecution, Aliunde the confession, to establish the independent felony, I.e., the attempted robbery.

The corpus delicti in a homicide case has traditionally been established by proof of the dead body and evidence of an unnatural cause of death. People v. Jackzo (1919), 206 Mich. 183, 172 N.W. 557; People v. Jackson (1965), 1 Mich.App. 207, 135 N.W.2d 557. ⁵

There is little authority throughout the country as to whether or not, under the felony-murder rule, proof of the felony as well as the murder is part of the Corpus delicti. The State of New York has held that proof of the independent felony is not part of the Corpus delicti and has admitted confessions into evidence to determine the degree of the crime. People v. Lytton (1931), 257 N.Y. 310, 178 N.E. 290, 291-292, 79 A.L.R. 503, 506-507.

In Lytton, Chief Justice Cardozo stated (pp. 313-315, 178 N.E. at p. 291):

'The defendant insists that upon a trial for homicide perpetrated in the commission of another and independent felony (People v. Moran, 246 N.Y. 100, 158 N.E. 35 (1927); Penal Law (Consol. Laws, c. 40), § 1044, subd. 2), a confession is insufficient evidence to sustain a conviction, though there is corroborating evidence of the fact of the homicide, unless there is also corroborating evidence, I.e., evidence apart from the confession, of the independent felony, and that the trial judge erred in charging to the contrary.

'The charge is in accordance with the settled doctrine of this court, which deserves to be stated in an opinion, since arguments before us both in this case and in others disclose uncertainty as to the governing principle in the minds of members of the bar.

'Code of Criminal Procedure, § 395, provides that a confession of a defendant 'is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.' The crime charged against this defendant is homicide, and the fact that a homicide has been committed is proved, without reference to a confession, by the testimony of eyewitnesses as well as by the discovery of the body, bearing tokens of a fatal wound. People v. Deacons, 109 N.Y. 374, 16 N.E. 676 (1888); People v. Brasch, 193 N.Y. 46, 58, 85 N.E. 809 (1908). This being done, the requirement of the Criminal Code must be held to have been satisfied. The danger that a crime may be confessed when no such crime in any degree has been committed by any one is then sufficiently averted. People v. Deacons, Supra. The considerations of public policy back of this section of the Code are near akin to those back of a section of the Penal Law to the effect that 'no person can be convicted of murder or manslaughter unless the death of the person alleged to have been killed and the fact of killing by the defendant, as alleged, are each established as independent facts; the former by direct proof, and the latter beyond a reasonable doubt.' Penal Law (Consol. Laws, c. 40) § 1041; People v. Palmer, 109 N.Y. 110, 114, 16 N.E. 529, 4 Am.St.Rep. 423 (1888). The corroborating evidence being sufficient to confirm the confession of a homicide, the Code does not require that it shall also confirm the confession of a homicide in any particular degree.

'The defendant, indeed, does not contend that there would be need for corroborating evidence of degree if the case had been submitted to the jury under Penal Law, section 1044, subdivision 1, as a homicide committed with a deliberate and premeditated design to kill. The argument is that a different measure of corroboration becomes necessary when the case is submitted under subdivision 2 as a homicide effected without a design to kill by a person engaged in the commission of a felony. The distinction so drawn proceeds upon a false conception of the function of an accompanying felony in a prosecution for the crime of murder. Its function and its significance were clearly expounded by this court, speaking by Hiscock, Ch. J., in People v. Nichols, 230 N.Y. 221, 129 N.E. 883 (1921), a case substantially decisive of the question now before us. Homicide, we said, is not murder 'without evidence of malice and of felonious intent and a depraved mind.' People v. Nichols, Supra, 230 N.Y. at page 226, 129 N.E. 883, 884. The malice or the state of mind may be proved by showing that the act was done with a deliberate and premeditated design to kill. The case will then fall under subdivision 1 (§ 1044). It may be proved by showing that the act was done by one then and there engaged in the commission of another felony. People v. Enoch, 13 Wend. 159, 174, 27 Am.Dec. 197 (1834); People v. Nichols, Supra. The case will then fall under subdivision 2. In the one case as in the other a single crime is charged, the independent felony like the deliberate and premeditated intent being established solely for the purpose of characterizing the degree of the crime so charged, the evil mind or purpose inherent in the killing. People v. Enoch, Supra. If there could be any doubt about this, the form of the indictment would be sufficient to dispel it. The rule is settled that there is no need to charge in an indictment that the homicide was wrought in the commission of another felony. It suffices to state in the common-law form that the defendant acted 'willfully, feloniously, and with malice aforethought.' People v. Nichols, Supra; People v. Giblin, 115 N.Y. 196, 198, 21 N.E. 1062, 4 L.R.A. 757 (1889); People v. Osmond, 138 N.Y. 80, 33 N.E. 739 (1893). This would never do if the independent felony were conceived of as changing the identity of the crime instead of merely characterizing the degree of culpability to be imputed to the killer.'

In People v. Crandell (1935), 270 Mich. 124, 258 N.W. 224, the defendant pled guilty to murder in the first degree; he killed while attempting to perpetrate a robbery. The Court stated (pp. 127, 128, 258 N.W. p. 225):

'There is no merit in the point that defendant's confession could not be considered in determining the degree of the murder.

'In People v. Lytton, Supra (257 N.Y. 310, 313, 178 N.E. 290), it was said: (The Court then quoted from the Lytton Case which we have quoted above, ending with)

"The corroborating evidence being sufficient to confirm the confession of a homicide, the Code does not require that it shall also confirm the confession of a homicide in any particular degree.'

'No claim is made by defendant, or any one in his behalf, that he was not guilty of the murder. His confession of guilt and details of the killing remain unquestioned.'

The trial court did not err by admitting the confessions into evidence.

Defendant next contends the trial court committed reversible error in failing to charge the jury as to manslaughter. Defendant's failure to timely object to the jury instructions waives his right to object on appeal. People v. Mallory (1966), 2 Mich.App. 359, 139 N.W.2d 904; People v. Allar (1969), 19 Mich.App. 675, 173 N.W.2d 261; People v. Mason (1970), 22 Mich.App. 595, 178 N.W.2d 181; GCR 1963, 516.2. The trial judge's remark that 'there are three possible verdicts in this particular case; that is, guilty as charged of murder in the first degree or murder in the second degree, or not guilty' does not come within the prohibition of People v. Lemmons (1970), 384 Mich. 1, 178 N.W.2d 496. In addition to defendant's failure to request instructions on the offense of manslaughter and his expressed satisfaction with the instructions as given, no evidence existed which could support a finding of manslaughter. The court therefore was not obligated to charge as to manslaughter. People v. Patskan (1971), 29 Mich.App. 354, 185 N.W.2d 398.

After the jury had retired to deliberate, the court informed counsel that some communication had been received from the jury relative to why the defendant had not taken the stand. It is defendant's contention that the jury in arriving at a verdict was considering the fact that he had not taken the stand to testify. Defendant charges that the judge should have immediately dismissed the jury and declared a mistrial. We are aware of the jury's duty to follow the instructions of the court (People v. Howard (1914), 179 Mich. 478, 146 N.W. 315; People v. McIntosh (1967), 6 Mich.App. 62, 148 N.W.2d 220), but a mistrial is not an appropriate solution for every query regarding jury instructions. Unless it can be shown there was a manifest necessity to...