People v. Bufkin, Docket No. 8317

• Citation: 48 Mich. App. 290,210 N.W.2d 390
• Decision Date: 23 July 1973
• Docket Number: 8408.,Docket No. 8317
• Parties: PEOPLE v. BUFKIN PEOPLE v. CARTER
• Court: Court of Appeal of Michigan (US)

48 Mich. App. 290

210 N.W.2d 390

PEOPLE v. BUFKIN

PEOPLE v. CARTER

Docket Nos. 8317, 8408.

Michigan Court of Appeals.

Decided July 23, 1973.

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Frank J. Kelley, Attorney General, Robert A. Derengoski Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Michael R. Mueller, Assistant Prosecuting Attorney, for the people.

Burton L. Borden, for defendant Bufkin on appeal.

Kenneth R. Teschendorf (M. Gerald Schwartzbach, of counsel), for defendant Carter on appeal.

Before: LESINSKI, C.J., and V.J. BRENNAN and O'HARA,^* JJ.

(ON REHEARING)

Leave to appeal granted as to Carter, 390 Mich ___.

V.J. BRENNAN and O'HARA, JJ.

This case is before us on rehearing by our grant thereof. The facts and original decisional holding are to be found at 43 Mich App 585; 204 NW2d 762 (1972).

The prosecuting attorney takes particular exception to the following language in the initial opinion:

"We here hold decisionally that in a prosecution for felony murder, that is to say any homicide committed in the perpetration, or the attempt to perpetrate one of the statutorily specified offenses, the trial judge is obliged to instruct the jury that its verdict shall be guilty of murder in the first degree or not guilty. We do not reach this conclusion lightly. We have reviewed all of the case law of our state and of many other jurisdictions. We adopt this rule because `felony murder,' so called is a creature of statute in which the element premeditation is conclusively presumed by proof of the perpetration or attempt to perpetrate a specific felony. As such, neither second-degree murder nor manslaughter can possibly be lesser included offenses. These two latter crimes and felony murder are mutually exclusive offenses." (Emphasis supplied.) People v Bufkin, 43 Mich App at 589; 204 NW2d at 763.

To this language the prosecution in part replies:

"This language is susceptible of only one interpretation, that in any case where felony murder is charged the jury will not be allowed to find the defendant guilty of murder in the second degree or manslaughter. Appellee contends that there should be no absolute rule against verdicts of murder in the second degree and manslaughter in such cases but that such verdicts should be allowed where the evidence warrants it."

We do not agree that such is the case, unless the information is a one-count felony-murder charge. We know of no constitutional provision, statute, or case precedent that precludes the people from including a second count for that degree of homicide which the people feel the facts support. Before the case is submitted to the jury the people may elect whether to go to the jury on the felony-murder count alone or on both counts where the proofs adduced support such submission. Contrariwise the defense is entitled to move the court to compel an election or dismiss either count unsupported by proofs.

We held as we did in order to eliminate the confusion that of necessity arises where the case goes to the jury on a felony-murder count and where the trial judge charges on second-degree murder and manslaughter. It is under such a charge that incongruous and compromise verdicts can result.

We point out that because of the clear language of the statute, the only charge to be given the jury ...