People v. Austin

• Decision Date: 05 April 1963
• Docket Number: No. 79,79
• Citation: 120 N.W.2d 766,370 Mich. 12
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellant, v. William James AUSTIN and George Richard Bell, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 766

120 N.W.2d 766

370 Mich. 12

PEOPLE of the State of Michigan, Plaintiff and Appellant, v. William James AUSTIN and George Richard Bell, Defendants and Appellees.

No. 79.

Supreme Court of Michigan.

April 5, 1963.

Frank J. Kelley, Atty. Gen., Eugene Krasicky, Sol. Gen., Samuel H. Olsen, Pros. Atty. of Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Detroit, for the People.

John H. Gillis, Detroit, for defendant-appellee George Richard Bell.

Before the Entire Bench, except ADAMS, J.

DETHMERS, Justice.

The stipulated facts for purposes of this appeal are as follows: The two defendants and George Rowe agreed to commit an armed robbery together. While they were attempting to perpetrate it Rowe was shot and killed by the intended robbery victim. Defendants were charged with first degree murder of Rowe. The examining magistrate bound them over to the recorder's court for the city of Detroit for trial. That court granted their motions to quash the information on the ground that the killing of one of the robbers by the victim during the robbery does not render the co-robbers guilty of murder in the first degree. The people appeal here.

It is not disputed that if defendants are guilty of any crime for the killing of their co-robber it is murder in the first degree. C.L.1948, § 750.316 (Stat.Ann. § 28.548) provides that murder committed in the attempt to perpetrate a robbery shall be murder in the first degree.

The essence of the trial court's opinion and of defendants' theory is that the killing of the would-be robber by the intended robbery victim was a justifiable homicide, not murder, and, hence, no murder having been committed, defendants cannot be charged therewith.

Defendants' theory seems to fall into two parts. The first is, as stated by the recorder's court judge, 'that a killing during the perpetration or attempted perpetration of a felony is not a murder if the person killed is a co-felon'. This is reminiscent of the old story about a justice of an appellate court who, in explaining its operations, stated that, in reviewing convictions in murder cases, 'the first thing we decide is 'should the deceased have went". In Commonwealth v. Thomas, 382 Pa. 639, 117 A.2d 204, the court's majority, after referring to cases in which first degree murder convictions against those engaged in perpetrating a felony were upheld for the killing of robbery victims, policemen or bystanders, whether by accomplices or by others, during perpetration of the felony, went on to say: 'We can see no sound reason for distinction merely because the one killed was a co-felon.' With that we agree. It is not the law that police officers or victims of robberies may inflict the death penalty upon robbers without benefit of judicial proceedings or court sentence. Indeed, capital punishment for robbery does not exist here. Robbers are not, legally and per se, the fair prey of every passing marksman. Accordingly, it may not be said that the killing of a person, which otherwise would be unlawful, becomes lawful for the sole reason that he is a robber, a felon. The shooting of a robber may be justifiable, however, not because he is a robber, a bad fellow who ought to be dead anyhow, but only because it may lawfully be done for the purpose of preventing robbery or the escape of robbers. Such purpose is hardly to be ascribed to the defendants here. However lawful or laudable the motive or purpose of the robbery victim who fired the shot may have been, it was not shared by defendants. If accepted criminal jurisprudence permits and sound legal reasoning leads to the conclusion, as we shall later see, that, under certain circumstances, robbers may be held for murder in the first degree for the killing by another of an innocent person during and arising out of the perpetration of the robbery, such reasoning permits of no other conclusion merely because the person killed happened to be one of the robbers.

The second part of defendants' theory seems to be that although a killing during and arising out of the perpetration of a robbery can render the robbers guilty of murder in the first degree, even when the killing was not specifically intended or done by them but perhaps by the robbery victim or a policeman or some other person, if the killing was accidental, that cannot be so if the killing by that same person was done purposefully, in an effort to prevent the robbery or escape of the robbers, because then it would be a justifiable homicide. This acknowledgement of criminal liability in the accidental killing situation is undoubtedly in deference to our holding in People v. Podolski, 332 Mich. 508, 52 N.W.2d 201. In that case police officers came upon the scene of a bank robbery just perpetrated by defendant and others who were about to escape. A gun battle ensued between the robbers and police officers. In the course of the shooting one officer was accidentally shot and killed by a bullet from the gun of a fellow officer. In affirming defendant's conviction of murder in the first degree, this Court, in effect, said that the jury had a right to consider that the armed robbers had the murderous intent that any innocent resisting person should die as a result of resistance and the resultant death of the policeman was within that murderous intent, even though the bullet came from another officer's gun; that when a robber deliberately engenders an affray, using a lethal weapon, it must be considered to be within his intent that death should result from the affray as a natural and probable consequence of his acts. This Court then said, in Podolski, that it approved the reasoning in Commonwealth v. Moyer, 357 Pa. 181, 53 A.2d 736, a 1947 case, in which the Pennsylvania court affirmed convictions of 2 robbers for murder for the killing, during the robbery, of a gas station attendant, saying that they were guilty regardless of whether the fatal bullet came from the gun of his employer who was shooting at the robbers, or the gun of one of defendants. This Court adopted from the Pennsylvania opinion the following:

"It is * * * consistent with reason and sound public policy to hold that when a felon's attempt to commit robbery or burglary sets in motion a chain of events which were or should have been within his contemplation when the motion was initiated, he should be held responsible for any death which by direct and almost inevitable sequence results from the initial criminal act. * * * Every robber or burglar knows that a likely later act in the chain of events he inaugurates will be the use of deadly force against him on the part of the selected victim. For whatever results follow from that natural and legal use of retaliating force, the felon must be held responsible."

The court in Moyer also said, with respect to the Pennsylvania statute which makes murder committed during perpetration of a robbery murder in the first degree (from which Michigan's C.L.1948, § 750.316 [Stat.Ann. § 28.548], was copied) the following:

'The numerous states which have copied this Pennsylvania statute, (including the states of Massachusetts, New York, Connecticut, New Jersey and Michigan) all use in their respective statutes the word 'murder' instead of the word 'homicide' for the reason that a killer in the malicious perpetration of one of the specified felonies has committed common law murder. The felon obviously possesses that 'wickedness of disposition, hardness of heart, cruelty and recklessness of consequences and a mind regardless of social duty' (Commonwealth v. Drum, 58 Pa. 9) which constitutes malice.'

The latter aptly answers defendants' argument here that upholding a charge of murder against them under the cited statute which makes 'murder' during a robbery murder in the first degree, would amount to judicial legislation, that is, an amending of the statute so as to change the word 'murder' therein to 'homicide', because here the killing was not murder but justifiable homicide by the intended robbery victim. Moyer was followed by Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d 183 (1949), in which the court upheld a first degree murder conviction of a robber where an innocent person was killed during the robbery, even though the shot was fired by a policeman.

In 1955, after this Court had decided Podolski, the Pennsylvania court had before it the case of Commonwealth v. Thomas, 382 Pa. 639, 117 A.2d 204. There the facts were as here; one of the robbers was shot and killed by the robbery victim. A majority of the court held the surviving robber guilty of murder in the first degree for that killing, through an extension, as defendants view it, of the doctrine of the Moyer and Almeida decisions. In that case the Pennsylvania court said, inter alia:

'If the defendant sets in motion the physical power of another, he is liable for its result. "Acts should be judged by their tendency under the known circumstances, not by the actual intent which accompanies them. * * * the law requires (men) at their peril to know the teachings of common experience, just as it requires them to know the law. * * * the test of murder is the degree of danger to life attending the act under the known circumstances of the case.' * * * 'He whose act causes in any way, directly or indirectly, the death of another, kills him, within the meaning of the law of felonious homicide. It is a rule both of reason and the law that whenever one's will contributes to impel a physical force, whether another's his own, or a combined force, proceeding from whatever different sources, he is responsible for the result, the same as though his hand, unaided, had produced it. * * *' There can be no doubt about the 'justice' of holding that felon guilty of murder in the first degree who engages in a robbery or burglary and thereby inevitably calls into action defensive forces against him, the activity of which forces result in the death of a human being'....