People v. Childs, Docket No. 4010
| Decision Date | 27 May 1968 |
| Docket Number | Docket No. 4010,No. 1,1 |
| Citation | 11 Mich.App. 408,161 N.W.2d 428 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mathew CHILDS, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Seymour F. Posner, Detroit, Ruth Ritter, Detroit, of counsel, for appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Wayne County, Luvenia D. Dockett, Asst. Pros. Atty. Wayne County, Detroit, for appellee.
Before BURNS, P.J., and HOLBROOK and PETERSON *, JJ.
Defendant, Mathew Childs, was convicted in a non-jury trial of the crime of felonious assault 1 on January 26, 1967, in recorder's court and was sentenced on March 6, 1967, to a term of 3 1/2 to 4 years.
The record on appeal discloses the following pertinent facts: Between 7 and 8 p.m., on the evening of October 8, 1966, while he was crossing Oregon street in the city of Detroit to talk to Clarence Houze, complainant George Edmondson was hit by 3 'bullets' (shotgun pellets). According to Edmondson, Houze was sitting in his car. When Edmondson realized that he had been shot, he jumped into Houze's car. Houze drove Edmondson home and another person took him to Boulevard General hospital. About 1/2 hour after his arrival, he was taken by the Detroit police to Detroit General hospital. After 1 hour he was released and his father returned him to Boulevard General hospital where he remained 4 or 5 days. At no time did Edmondson identify or name defendant as the person who shot him.
The identification of defendant as the person who shot Edmondson was made by Houze 3 days later. He testified that he was walking up the walk of a house on Oregon street when he turned and saw the defendant standing on the sidewalk about 2 or 3 houses away with 2 other men. He further testified that the defendant was holding a shotgun which was raised and fired at a time when Edmondson was crossing the street. Houze stated he avoided the first shot by running behind a tree and that he heard a second shot which hit the back of the car after he and Edmondson entered the car.
Houze and defendant had spent time together in prison for assault with intent to commit armed robbery. On direct examination Houze testified that he had had no quarrels or fights with defendant but on cross-examination admitted that earlier on the day of the shooting he had seen defendant and had an argument with him. He indicated that at the time of the shooting he thought defendant was shooting at him.
A statement of defendant's was read in evidence without objection. Therein defendant denied carrying or shooting a shotgun, but, admitted that he was present on Oregon street at the time of the shooting.
Defendant's questions on appeal are merely assertions of error pertaining to the following issue: Was the evidence presented by the prosecution sufficient to convince beyond a reasonable doubt?
Defendant contends that because the prosecution failed to produce medical testimony to prove that the injuries suffered by Edmondson were in fact the result of shotgun wounds, all the elements of the crime of felonious assault were not proven.
C.L. 1948, § 750.82 (Stat.Ann.1962 Rev. § 28.277) states as follows:
'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.'
The only elements necessary to be proven are assault and that a dangerous weapon had been used in making the assault. People v. Burk (1927), 238 Mich. 485, 489, 213 N.W. 717; 2 Gillespie, Michigan Criminal Law & Procedure (2d ed.), § 1041, pp. 1435, 1436.
Edmondson testified that he was hit by 3 'bullets' which still remained in his face and shoulder. Houze...
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