People v. Branner
| Decision Date | 30 May 1974 |
| Docket Number | No. 2,Docket No. 17195,2 |
| Citation | 220 N.W.2d 183,53 Mich.App. 541 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry BRANNER, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Stanley W. Kurzman, Campbell, Lee, Kurzman & Leitman, Bloomfield Hills, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.
Before McGREGOR, P.J., and R. B. BURNS and O'HARA*, JJ.
Defendant was charged on December 7, 1972, with assault with intent to commit murder, contrary to M.C.L.A. § 750.83; M.S.A. § 28.278. He was tried and found guilty of that offense by a jury on February 23, 1973, and was sentenced, on March 30, 1973, to a term of 15 to 40 years.
Because the dispositive issue on appeal concerns alleged instructional error, and defendant concedes that there was sufficient evidence, if believed, to support the conviction, no extended discussion of the facts adduced at trial is necessary. Suffice it to say that the defendant allegedly choked, kicked and stabbed his estranged wife at their former residence.
In his well-reasoned and scholarly brief on appeal, defendant's appellate counsel argues that the trial court's instructions to the jury were legally erroneous and necessitate a new trial. The following instructions by the trial court to the jury are the basis of defendant's contention:
'Now, the People charge in this case in the information that the Defendant, Jerry Branner, of the city of Pontiac in the County of Oakland, on the 6th day of December, 1972 at the said city (sic) of Pontiac, feloniously did assault one Marilyn Branner with a dangerous weapon, to-wit, a knife with intent to commit the crime of murder, contrary to the laws made and provided. Now, this is the charge known as the assault with intent to commit murder, and I will read the statute which is very short, specifically Michigan Statutes Annotated, 28.278 (M.C.L.A. § 750.83):
"Any person who shall assault another with intent to commit the crime of murder, shall be guilty of a felony.'
'And the elements of such offense would be there was an assault, attempt to do harm. That there was an intent, that is particularly essential in the elements of this particular case, that the Defendant did or did not have the intent to commit the crime of murder.
'Now, also there is also included offenses which you must consider. That is the offense of assault with intent to do great bodily harm less than the crime of murder. That is contained in Michigan Statutes Annotated 28.279, section 84 (M.C.L.A. § 750.84) stating that:
"Any person who shall assault another with intent to do great bodily harm less than the crime of murder shall be guilty of a felony.'
'There, again, the element--the two essential elements--one, there was an assault, and the main element is the intent. Did the Defendant have or not have intent.
'There is another lesser included offense which is known, generally speaking, as the crime of felonious assault, and the statute involved is Michigan Statutes Annotated, 28.276, section 1 (81) (M.C.L.A. § 750.81), terms it * * * 'assault with a deadly weapon,' that is 28.277 rather, section 82 (M.C.L.A. § 750.82), and states that:
"Any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a felony.'
'This is the third offense I just read in which there must be an assault with a dangerous weapon and the People charge a knife was used in this alleged assault, but there was no intent to commit great bodily harm less than the crime of murder. In the first two citations the element of intent is the most significant factor to consider and must be proven beyond a reasonable doubt by the People.
'There is a fourth included offense known, generally speaking, as simple assault. That is contained in 28.276, assault and battery which is a misdemeanor and states in section 81 (M.C.L.A. § 750.81):
"Any person who shall be convicted of an assault or an assault and battery where no other punishment is prescribed shall be guilty of a misdemeanor.'
'That is known as simple assault.'
We note preliminarily that defense counsel did not object to the instructions as given. This Court has repeatedly held that the absence of timely objection at trial precludes appellate review of claimed instructional error in the absence of manifest injustice. GCR 1963, 516.2; People v. Spaulding, 42 Mich.App. 492, 202 N.W.2d 450 (1972).
Having acknowledged the limited scope of our review, defendant first argues that the trial court's instructions with respect to the crime of assault with intent to commit murder were, nonetheless, reversibly erroneous in that they failed to include an essential element of the crime.
The elements of the crime of assault with intent to commit murder are: (1) an assault; (2) with specific intent to murder; (3) and which, if successful would make the killing murder. 2 Gillespie, Michigan Criminal Law & Procedure (2d ed.), § 1031, p. 1418.
Defendant claims that although below he was satisfied at time of trial with the now-complained-of jury instructions, his conviction should be reversed because the instructions were so violative of fundamental constitutional fairness. Defendant acknowledges the general obligation to object to instructions at the trial level in order to preserve for appeal any assignments of error, M.C.L.A. § 768.29; M.S.A. § 28.1052; GCR 1963, 516.2. The defendant relies principally upon three cases that he claims modify this general rule--People v. Liggett, 378 Mich. 706, 148 N.W.2d 784 (196...
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