People v. Burk

• Decision Date: 03 May 1927
• Docket Number: No. 146.,146.
• Citation: 238 Mich. 485,213 N.W. 717
• Parties: PEOPLE v. BURK.
• Court: Michigan Supreme Court

238 Mich. 485

213 N.W. 717

PEOPLE

v.BURK.

No. 146.

Supreme Court of Michigan.

May 3, 1927.

Error to Recorder's Court of Detroit; Charles L. Bartlett, Recorder and Judge.

William Burk was convicted of felonious assault, and he brings error. Affirmed.

Argued before the Entire Bench.Beaumont, Smith & Harris, of Detroit, for appellant.

Clare Retan, Atty. Gen., and Robert M. Toms, Pros. Atty., and James E. Chenot, Asst. Pros. Atty., both of Detroit, for the People.

BIRD, J.

Defendant was convicted of committing a felonious assault on one Forrest Foster in Detroit in April, 1925. The alleged assault grew out of the feeling engendered by the metal polishers' strike which was on at that time at the Shepherd plant. Forrest Foster, the complaining witness, was one of the strikers. Defendant raises the following questions on review: (1) There was error in the court's charge, in that he failed to either define the major or included offenses, and he also failed to give the elements of felonious assault; (2) that the court did not tell the jury that they might find defendant not guilty; (3) that the court did not give defendant's first request to charge; (4) that the court sentenced defendant while execution had been stayed.

1. The trial court charged the jury in past as follows:

‘This information is signed by Robert M. Toms, prosecuting attorney. It is based on section 15228 of the Compiled Laws of 1915, of which I will read to you.

‘Section 15228 of the Compiled Laws of 1915 provides:

“Whoever 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 deemed guilty of a felonious assault, and upon conviction shall be punished'; the punishment being provided.

‘Now, I have read the statute to you so far as it pertains to this particular information, the charge in this case. * * *

‘I charge you that an iron bar is a dangerous weapon. However, I say to you this: That I am not passing upon any question of fact in connection with the alleged use of the iron bar in this case. * * *

‘Now, the charge in the information is one of felonious assault, which I will call the major offense. If, after following the instructions of this court and applying the principles which I have given you here, you find that the defendant is not guilty of the crime of felonious assault, then it is for you to determine whether or not he is guilty of assault and battery, which I will call a minor offense. Then if, after applying all the principles of law, you find he is not guilty of assault and battery, then you are to determine whether or not he is guilty of simple assault.

‘Battery, the person has to be-some damage has to be done to the person himself, some corporeal hurt; in other words, an assault may be made without striking a person, like an attempt to strike. In other words, this is what we call the major crime, felonious assault. It is for you to pass upon that, first, determine whether or not in your opinion the defendant is guilty. After applying all the principles which I have given you, then take up the minor charge, if you find he is not guilty of that-assault and battery. Is there anything further?’

The reading of the information and the statute to the jury was, we think, a sufficient definition and explanation of the charge. 16 C. J. 969. Any man with intelligence enough to sit on a jury could readily understand what the offense was when it was read to him. They were instructed as to the included offenses, and that an iron pipe was a dangerous weapon. We think the trial court did his duty in this respect.

Further complaint is made that the trial court failed to give them the elements of the offense. A reading of the statute also answers this objection. 16 C. j. 969.

2. Complaint is made that the trial court did not instruct the jury that they might find defendant not guilty. The following instruction will answer this objection:

‘You are to start out with the presumption that the defendant is wholly innocent. That presumption must be overcome by the prosecution. You must be convinced beyond a reasonable doubt of the defendant's guilt.’

Then the court proceeds to explain to the jury what a reasonable doubt is, and concluded:

‘It is such a doubt that, after a careful review of all the testimony, you cannot say that you have an abiding conviction to a moral certainty of the defendant's...