People v. Deneweth, Docket No. 3085

• Decision Date: 02 December 1968
• Docket Number: No. 2,Docket No. 3085,2
• Citation: 165 N.W.2d 910,14 Mich.App. 604
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert DENEWETH, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 910

165 N.W.2d 910

14 Mich.App. 604

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert DENEWETH, Defendant-Appellant.

Docket No. 3085.

Court of Appeals of Michigan, Division No. 2.

Dec. 2, 1968.

Rehearing Denied Jan. 7, 1969.

Leave to Appeal Denied March 20, 1969.

Released for Publication March 27, 1969.

Roy W. Rogensues, Fraser, McCallum & Rogensues, East Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appellate Lawyer, Macomb County, Mt. Clemens, for appellee.

Before LEVIN, P.J., and GILLIS and QUINN, JJ.

QUINN, Judge.

Defendant was tried on a charge of first degree murder. M.C.L.A. § 750.316 (Stat.Ann.1954 Rev. § 28.548). Defendant introduced evidence to establish his insanity at the time the offense was committed. He was convicted of second degree murder. M.C.L.A. § 750.317 (Stat.Ann.1954 Rev. § 28.549). His appeal questions the propriety of the trial court instructing the jury that it could not bring in a verdict of not guilty.

The instruction complained of constitutes reversible error. People v. Woody (1968), 380 Mich. 332, 157 N.W.2d 201.

This determination obviates discussion of the other point raised on appeal.

Reversed and remanded for new trial, at which the charge of first degree murder shall be eliminated.

LEVIN, Presiding Judge (concurring).

The defendant Robert Deneweth shot and killed Bernice E. Browski. The information charged the crime of first degree murder. M.C.L.A. § 750.316 (Stat.Ann.1954 Rev. § 28.548. The jury convicted the defendant of second degree murder. M.C.L.A. § 750.317 (Stat.Ann.1954 Rev. § 28.549).

At the trial the defendant took the stand. He admitted that he fired a gun at the victim but denied he 'intended' to shoot her.

By expert psychiatric testimony he sought to prove that he acted under an 'irresistible impulse' and was insane at the time of the commission of the offense. ¹

The defendant claims on appeal that the trial judge erred when he charged the jury that it could not bring in a verdict of not guilty. We agree and remand for a new trial.

The trial judge charged:

'Now, members of the jury, in this case you have four possible verdicts. Number one, defendant may be guilty of murder in the first degree; or number two, guilty of murder in the second degree, or three, manslaughter, or four, not guilty by reason of insanity. So there are four possible verdicts. By no means can there be a not guilty verdict. That is impossible in this case, only those four possible verdicts.' (Emphasis supplied.) ²

I.

The defendant pled not guilty. A plea of not guilty puts in issue every element of the people's case. That view of the matter is not affected by the fact that the defendant gave notice as required by the statute (M.C.L.A. § 768.20 (Stat.Ann.1954 Rev. § 28.1043)) of his intention to introduce evidence in support of an insanity defense. ³

Entirely apart from whether it is ever proper in a criminal case to direct a verdict of guilty, on the record in this case the trial judge could not have directed a verdict of guilty of the offenses of first degree murder, second degree murder or Voluntary manslaughter.

Intent to kill is an essential ingredient of each of the 3 offenses. ⁴ During his testimony the defendant Deneweth denied he intended to shoot Bernice Browski. If, as he asserted, he did not intend to shoot her with the shots fired then he did not intend by such shots to kill her.

Even if the defendant had not taken the stand, in a criminal case the defendant is entitled to have the presumption of innocence weighed against the people's entire case no matter how strong it may be and to a jury resolution of at least those facts which he does not judicially admit. ⁵

Although the jury was not charged on the issue of Involuntary manslaughter, the trial judge may have assumed that because intent to kill is not an element of involuntary manslaughter, that offense being established upon proof that the accused person caused the victim's death while acting unlawfully or with gross negligence, a verdict of guilty of involuntary manslaughter could properly be directed in this case. ⁶

In Michigan, manslaughter is a commonlaw crime, there being no statutory definition. ⁷ At common law there cannot be a criminal act without proof of Mens rea, criminal intent, guilty mind, culpability or whatever term is thought best to describe this ingredient of any common law crime. ⁸

Only the legislature can define a new crime. ⁹ The courts may not. Manslaughter being a common law crime in Michigan, criminal intent or culpability is an essential ingredient of that crime whether the basis of the alleged offense is unlawful or grossly negligent conduct. ¹⁰ Even if the defendant had admitted that the shots he fired caused Bernice Browski's death, he did not thereby admit his conduct was unlawful or culpable. Since the defendant did not admit that he acted criminally or culpably in raising and firing the gun, whether his actions should be so characterized was on this record an issue for jury resolution.

II.

Turning to the question whether it is ever proper for a judge to direct a verdict of guilty in a criminal case, it has already been observed that, in a criminal case, except for the facts the defendant himself judicially admits, the people's evidence is disputed by the presumption of innocence which should be weighed against the people's evidence however overwhelming and even if not otherwise contradicted. ¹¹

It was early established in our jurisprudence that one of the substantial elements of the constitutional right to trial by jury is the right to have the jury 'give a general verdict on the merits.' See People v. Marion (1874), 29 Mich. 31, 40; Underwood v. People (1875), 32 Mich. 1, 2; similarly, see People v. Clark (1940), 295 Mich. 704, 707, 295 N.W. 370, and People v. Anschutz (1953), 335 Mich. 375, 380, 56 N.W.2d 224. This principle was recently reiterated by our Supreme Court in People v. Woody (1968), 380 Mich. 332, 157 N.W.2d 201, where the Court admonished us that even in a case, such as this case of Deneweth, where the defendant interposes an insanity defense the issue is not defendant's sanity at the time of the offense but rather his guilt or innocence, that, even in such a case as this, the jury can bring in a general verdict of not guilty. ¹²

The case for judicial power to direct verdicts in criminal cases is based on logic. Stated as a syllogism, it becomes:

Major premise: juries decide facts, judges decide law. Minor premise: all fact issues in the case at hand are admitted or undisputed. Conclusion: there is nothing for the jury to decide.

This logical proposition has strong appeal for the legal mind. However, the case for jury decision is based on the clear imperative of the United States constitution and our own State constitution. A right of jury trial is now guaranteed by the Federal constitution in a case such as this ¹³ and has always been guaranteed by our own State constitution. ¹⁴

The jury of 12 laymen is deeply rooted in the anglo-American legal tradition. Especially in criminal trials it has been regarded as one of the bulwarks of democracy, preserving the judgment of the common man against possible injustices of political oppression or judicial formalism.

'There can, within the meaning of the constitution be no trial of a cause by jury unless the jury deliberates upon and determines it. It is doubtless true that, in a certain sense and to a limited extent, this doctrine makes the jury the judges in criminal cases of both law and fact; but this is the necessary result of the jury system.' United States v. Taylor (C.A.Kan.1882) 11 F. 470, 471, 472.

The foregoing view of the matter has not been universally accepted. The dissimilarity between the amateur, egalitarian institution of the jury and the professional, rationalist judiciary with which it works has engendered a heated controversy which has stretched over the years and continues today. ¹⁵

There is a line of cases in this State approving instructions charging juries that they must bring in a guilty verdict. It appears that the earliest case approving such an instruction (People v. Richmond (1886), 59 Mich. 570, 26 N.W. 770) involved a violation of the liquor law. This was an offense Malum prohibitum and it was not necessary to prove criminal intent or culpability. The defendant had admitted all the facts necessary to convict him. ¹⁶ Such instructions were later approved in other Malum prohibitum cases. People v. Kirsch (1887), 67 Mich. 539, 35 N.W. 157, and People v. Neal (1906), 143 Mich. 271, 106 N.W. 857 (illegal fishing); People v. Gardner (1906), 143 Mich. 104, 106 N.W. 541 (violation of garbage ordinance); People v. Stewart (1911), 167 Mich. 417, 132 N.W. 1071 (peddling goods without a license), reversed on other grounds (1913), 232 U.S. 665, 34 S.Ct. 476, 58 L.Ed. 786. Similarly, see People v. Elmer (1896), 109 Mich. 493, 496, 67 N.W. 550 (fortune telling without a permit). These cases all concerned relatively minor charges carrying correspondingly light penalties.

In People v. Neumann (1891), 85 Mich. 98, 104, 48 N.W. 290, the Court attempted to rationalize its prior pronouncements with the constitutional imperative. It declared that it is never proper for a trial judge to direct a verdict, but that he may tell the jury it is their duty to convict in a case where there is no question of intent, the facts are admitted and there are no inferences about which reasonable men may differ.

Neumann's dictum was followed in reversing directed verdicts in People v. Collison (1891), 85 Mich. 105, 48 N.W. 292 (illegal fishing); People v. Remus (1904), 135 Mich. 629, 98 N.W. 397, 100 N.W. 403; People v. Doyle (1910), 160 Mich. 423, 125 N.W. 358 (liquor law violation cases); and People v. Lathers (1923), 223 Mich. 92, 193 N.W. 903 (obscenity case).

In People v....