People v. Cooper

• Decision Date: 10 February 1975
• Docket Number: No. 3,Docket No. 17387,3
• Citation: 58 Mich.App. 284,227 N.W.2d 319
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee. v. Marx Ernest COOPER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 319

227 N.W.2d 319

58 Mich.App. 284

PEOPLE of the State of Michigan, Plaintiff-Appellee. v. Marx Ernest COOPER, Defendant-Appellant.

Docket No. 17387.

Court of Appeals of Michigan, Division No. 3.

Feb. 10, 1975.

Released for Publication April 4, 1975.

Rehearing Denied March 27, 1975.

Marx Ernest Cooper, in pro per.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Stanley Everett, Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and HOLBROOK and V. J. BRENNAN, JJ.

HOLBROOK, Judge.

Defendant Marx Ernest Cooper was convicted by a jury of the crimes of (1) attempted murder, M.C.L.A. § 750.91; M.S.A. § 28.286; (2) bank robbery, M.C.L.A. § 750.531; M.S.A. § 28.799; and, (3) assault with intent to rob being armed, M.C.L.A. § 750.89; M.S.A. § 28.284. He was sentenced on October 1, 1971, on each count to three identical terms of 5 to 25 years in prison, same to run concurrently. Defendant filed a motion for a new trial and amended the same three times. This was heard by the trial court and after the filing of briefs on March 28, 1973, an order denying the motion for new trial was filed May 4, 1973. Defendant appeals as of right from the denial of his motion for a new trial.

Two issues are presented for determination in this appeal.

I

Did the trial court commit reversible error in denying defendant's motion to dismiss the attempted murder count (one) of the information when that count was based on M.C.L.A. § 750.91; M.S.A. § 28.286?

In pertinent part the applicable statute reads as follows: 'Any person who shall attempt to commit the crime of murder by poisoning, drowning, or strangling another person, or by any means not constituting the crime of assault with intent to murder * * *'. The trial court and both the people and the defendant agree that if an assault was committed in the attempt to commit the crime, that a verdict of guilty to count 1 would not be proper.

The trial court charged the jury in this regard as follows:

'Now what is the legal definition of assault? Assault is defined as an attempt or offer with force and violence to do corporal hurt to another coupled with a present ability to carry the intention into effect. With this definition in mind you will determine whether the defendant, Marx Cooper, made an assault upon Robert Houghtaling with the intent to kill him. If the defendant did make an assault upon Mr. Houghtaling, the defendant will not be guilty of committing the offense in count 1. If the defendant did not make an assault upon Robert Houghtaling but did attempt to commit the crime of murder by attempting to detonate the explosive device as charged, therefore the defendant would be guilty of committing the offense of attempted murder if you find that he was sane at the time of the commission of the offense.'

To resolve this issue we turn to the facts. On December 18, 1970, defendant entered the Michigan National Bank at Battle Creek, Michigan. Under the pretext of having business to transact with the bank he persuaded Harold Dickson to take him into a private office. After arriving in the private room, defendant proceeded to give Dickson pretyped messages an placed certain objects on the desk. The pertinent testimony is as follows:

'Q. (by Mr. Everett, prosecuting attorney): After handing you this, or before, or at any time, did he remove anything from his case?

'A. (by Mr. Dickson): Yes. During presentation to me of the printed instructions he also removed from his luggage certain items, placing them on the table between us.

'Mr. Everett: I am going to read from People's Exhibit 4, which is also typewritten. It says: 'The device on your desk is the master control radio relay unit. Signals are relayed to two hidden powerful satellite high explosive TNT charges placed somewhere in the main foyer. The quote, speaker, unquote device on your desk is also a powerful bomb loaded with TNT which can destroy anything or anyone within a one-hundred foot radius. It also has a high gain receiver and transmitter and can be activated from up to thirty miles radius. Do not tamper with unit on desk. Will go off if jolted or moved. Safeguards built in. Hand document back to agent.'

'Q. Was this document handed to you?

'A. He handed it to me to read.

'Q. At that time was there any of this paraphernalia on the desk?

'A. Yes, the device he was talking about in there was there, plus I recall some other various items.

'Q. Could you step down here a minute and tell us whether any of these in the box were among the things which were on the desk?

'A. This he placed directly between us, the object he is referring to in that.'

Defendant also gave him a card demanding $375,000. Mr. Dickson was able to alert the bank employees and while Dickson was on the errand to get the money, four policemen arrived. Lt. Robert Houghtaling and Detective Savage entered the room where defendant was sitting, subdued him and took the bomb away from him. At the time the police entered the room, defendant grabbed the bomb from the nearby table. Defendant testified and gave an account of planning the bank robbery with the bomb and using a complicated made up telephone to convince the bank officer that he had an accomplice which was untrue. Defendant said that when the police entered the room he had the bomb in his hands, that he had full control of it and that he was going to plunge the red button, then thought of his son and said, 'I am sorry'. By that time the officers had gained control of the bomb. There is no question concerning the fact that this bomb was an actual bomb, made of a detonator and dynamite.

This first issue is a close question. We turn to the information in the case. Count 1 reads as follows:

'One Marx Ernest Cooper, at the City of Battle Creek, did then and there feloniously, wilfully and of his malice aforethought, attempt to kill and murder one Robert Houghtaling, by attempting to detonate an explosive device, but the said Marx Ernest Cooper was then and there intercepted and prevented in the execution of such attempted murder.'

The trial judge's definition of assault was proper, and for further light we turn to the definition of assault in the case of People v. Lilley, 43 Mich. 521, 525--526, 5 N.W. 982, 985 (1880).

'An assault is defined to be an inchoate violence to the person of another, with the present means of carrying the intent into effect. Threats are not sufficient; there must be proof of violence actually offered, and this within such a distance as that harm might ensue if the party was not prevented. 2 Greenl.Ev. § 82; 3 Greenl.Ev. § 59; 1 Bishop's Cr.L. § 419; 3 Bl.Com. 120, note 3.'

It appears to the Court that there was a beginning (inchoate) violence to the person of another. The offer of violence was complete when the defendant took the bomb in his hands and was in the process of detonating it. There was no question about the capability of the bomb to harm not only those in the room, but also those who were some distance away.

We find it illogical to interpret the crime charged in the information under the facts present as containing less than an assault. We therefore find that count 1 was improperly brought and the conviction in count 1 is reversed and dismissed.

II

Was defendant 'twice put in jeopardy' in violation of the U.S.Const. Am. V and Am. XIV, and Michigan Const.1963, art. 1, § 15 by being brought to trial in the state court after his acquittal of similar charges, based upon the same transaction, in the United States District Court?

Defendant prior to being brought to trial in our state court in the instant case was acquitted in a United States District Court criminal trial wherein he was charged with bank robbery.

Defendant did not raise this issue before or at trial. Our Supreme Court has ruled that a claim of double jeopardy must be raised before or during trial or it is waived. People v. Powers, 272 Mich. 303, 261 N.W. 543 (1935), and People v. McDonald, 306 Mich. 65, 10 N.W.2d 309 (1943).

Defendant has presented a very comprehensive brief on this issue and because of the importance of this question, we proceed to consider and decide it. In the case of In re Illova, 351 Mich. 204, 88 N.W.2d 589 (1958), it was ruled that a defendant who had violated both State and Federal laws was liable to each sovereign and subject to prosecution by each.

It has long been the law that a person may be liable to punishment for infraction of law of the United States and of a state for the same act. United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922); Hebert v. Louisiana, 272 U.S. 312, 47 S.Ct. 103, 71 L.Ed. 270, 48 A.L.R. 1102 (1926); Jerome v. United States, 318 U.S. 101, 63 S.Ct. 483, 87 L.Ed. 640 (1943), cert. den. 317 U.S. 606, 63 S.Ct. 62, 87 L.Ed. 492 (1943), and Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). A near duplicate of the instant case was considered and decided in Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), reh. den. 360 U.S. 907, 79 S.Ct. 1283, 3 L.Ed.2d 1258 (1959). There, the defendant was charged with bank robbery, was acquitted in the Federal court, and was later tried and convicted in the state court. The majority of the Supreme Court held that this did not constitute double jeopardy and the conviction was affirmed. The defendant asserts that we should rule contrary to the decisions in Bartkus and Illova, supra; further, that we should consider applying the doctrine given in the ruling in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). In answer to this assertion we adopt the recent ruling on this issue in another duplicate of the instant case found in Martin v. Rose, 481 F.2d 658, 659--660 (CA 6, 1973), cert den. 1973, 414 U.S. 876, 94 S.Ct. 86, 38 L.Ed.2d 121 (1974), wherein it is stated:

'Appellant urges that Bartkus no longer has continuing validity, particularly in view of recent Supreme Court decisions in such cases a...