People v. Doss

Decision Date05 March 1979
Docket NumberNo. 6,Docket No. 60558,6
Citation406 Mich. 90,276 N.W.2d 9
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Willie DOSS, Defendant-Appellee. Calendar406 Mich. 90, 276 N.W.2d 9
CourtMichigan Supreme Court

William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, Timothy A. Baughman, Asst. Pros. Atty., Detroit, for plaintiff-appellant.

Vivian B. Perry, Southfield, for defendant-appellee.


Defendant, a Detroit police officer, was charged with manslaughter under M.C.L. § 750.329; M.S.A. § 28.561 in connection with the shooting of a suspect at the scene of a breaking and entering. After preliminary examination, defendant was bound over for trial. Defendant moved to quash the information, but the motion was denied. The Court of Appeals, 260 N.W.2d 880, 78 Mich.App. 541 in a split decision, reversed the order denying defendant's motion to quash. This Court granted the people's application for leave to appeal, limited to the following two issues:

1) Whether absence of malice is an essential element of manslaughter as defined in M.C.L. § 750.329; M.S.A. § 28.561; and

2) Whether the evidence adduced at the preliminary examination is sufficient to support the magistrate's decision to bind defendant over on the crime charged.

We answer the first question in the negative and the second question in the affirmative. Therefore, the decision of the Court of Appeals is reversed.


The transcript of the preliminary examination indicates that at approximately 8:50 p. m. on March 4, 1976, defendant and two other plainclothes police officers responded to a reported burglary of a gasoline station on Clay Street in the City of Detroit. The record indicates that it was a very foggy night. Upon arriving at the location of the reported burglary in an unmarked car, the three officers witnessed a man making his exit through a broken window of the gasoline station. He was immediately placed under arrest. In response to questioning as to the whereabouts of his partner, he said that he did not know where his partner was, but that the partner lived around the corner. He was then placed in the squad car. At this point, three other plainclothes officers arrived at the scene, whereupon all of the officers, with the exception of the one watching over the arrested man, began to search the premises. The search revealed that the station had apparently been broken into with an ax and that some damage had been done to the interior of the station. After the officers had searched the premises for approximately 5 to 10 minutes, the suspect walked out from behind the station.

The transcript indicates that the officers were startled by the discovery of the second man and suspected that he was probably the accomplice to the breaking and entering. One officer testified that he heard defendant call out "Detroit police officer". Another officer testified that she heard defendant yell, "stop" or "hold it". When the man failed to stop and continued to walk away, defendant pursued the presumed accomplice. The testimony reveals that when the man reached the street, he turned with a long object in his hands, which was later disclosed to be a chair leg or a spindle. Defendant then ducked and fired one fatal shot with his service revolver.

The decedent was 21 years of age, 5 feet, 11 inches tall, and weighed 215 pounds. The medical examiner testified that the cause of the decedent's death was a gunshot wound with the bullet entering the back of decedent's head about 61/2 inches below the top of the head and about 3 inches right of the midline, traveling upwards to the left side of the front of the head. The doctor also testified that there were no powder burns or other evidence of close range firing. He also testified that the blood-alcohol content of the decedent was .22 percent which would indicate that the decedent was under the influence of alcohol.

At the preliminary examination held on June 7 and 9, 1976, the magistrate ordered defendant bound over for trial based on the following findings of fact:

"Gentlemen, based upon the record before me, the court is satisfied that the prosecution has made out the crime charged, that being manslaughter, and probable cause to believe that the offense was committed by Mr. Doss. Accordingly, I will bind him over for trial on the charges contained in the complaint and warrant. * * * I am prepared to say this: that there are numerous questions of fact the defense has raised at examination summations pertaining to self-defense. The court, based on all the evidence before it, does not find it to be a lawful killing. Once you keep in mind the elements of manslaughter do not include malice, expressed or implied, do not include premeditation, I am satisfied from all the evidence I have heard including the evidence with respect to the nature of the wound in the wound tract, including the evidence with respect to the lapse of time from the entry by the police into the premises of the gas station until the time when this gentleman was seen near the vicinity where he was shot, that the matters raised before me do make out the crime charged, understanding that there are a lot of questions of fact among them being self-defense. I could speak at greater length, but I decline to do so. Thank you. Bond will be continued and I will draw a judge for you." (Emphasis deleted.)

On August 19, 1976, the recorder's court denied defendant's motion to quash the information on the basis of People v. Martin, 59 Mich.App. 471, 229 N.W.2d 809 (1975). 1

The Court of Appeals granted defendant's application for leave to appeal to determine whether the trial court had erred in finding that the magistrate had not abused his discretion in binding defendant over for trial. On September 21, 1977, in reversing the order denying the motion to quash, the Court of Appeals held:

"(T)hat such error was committed because the evidence presented at the preliminary examination both negatives application of the statute under which defendant is charged and does not show that defendant caused the death without lawful justification or excuse." People v. Doss, 78 Mich.App. 541, 549, 260 N.W.2d 880, 883 (1977).

This Court granted the people's application for leave to appeal on February 23, 1978. 402 Mich. 884 (1978).


Defendant argues, and the Court of Appeals found, that the absence of malice is an essential element of manslaughter as defined in M.C.L. § 750.329; M.S.A. § 28.561. 2 The statute in question provides as follows:

"Any person who shall wound, maim or injure any other person by the discharge of any firearm, pointed or aimed, intentionally but without malice, at any such person, shall, if death ensue from such wounding, maiming or injury, be deemed guilty of the crime of manslaughter."

In finding that the absence of malice is an essential element of manslaughter, the Court of Appeals placed great reliance on People v. Chappell, 27 Mich. 486 (1873), wherein defendant was charged with maiming another by discharging a loaded pistol, pointed and aimed intentionally, but without malice, contrary to 1869 P.A. 68; 1871 C.L. 7550. The trial court was asked to instruct that if defendant shot with malice he could not be convicted under the statute he was charged with violating. The request was refused by the trial court, and the defendant was convicted. In reversing the conviction, this Court held:

"The statute was designed to punish a class of acts done carelessly, but without any design of doing mischief, and the various sections must, under our constitution, be construed so as to conform to the title. The absence of malice is as necessary an ingredient in the statutory definition as the use of fire-arms. And the offense is purely statutory.

(I)t is manifestly impossible for an act to be at the same time malicious and free from malice. The statute, as before stated, was aimed at acts where no harm was designed, and proof of malice is not merely proof of something beyond the statute. It is inconsistent with the statute in its chief design." 27 Mich. 486, 487-488.

The construction placed on 1869 P.A. 68 by this Court in Chappell was followed in People v. McCully, 107 Mich. 343, 65 N.W. 234 (1895); People v. Peterson, 166 Mich. 10, 131 N.W. 153 (1911), and People v. Heikkala, 226 Mich. 332, 197 N.W. 366 (1924).

We believe that the majority of the Court of Appeals erred in finding that the absence of malice is an essential element of manslaughter as defined by M.C.L. § 750.329; M.S.A. § 28.561. 3 While we are mindful of the line of cases beginning with People v. Chappell, supra, supporting such a position, we believe that the reasoning of those cases has been seriously undermined by this Court's decision in People v. Chamblis, 395 Mich. 408, 424, 236 N.W.2d 473, 481 (1975), where in the context of our discussion of lesser included offenses, we said:

"Part of the confusion concerning lesser included offenses appears to result from analysis which treats as positive elements of a crime such negative concepts as 'unarmed'. Considered in the context of lesser included offenses, 'unarmed' is the Absence of the element of use of a weapon. It is not a distinct, separate element. Elements are, by definition, positive. A negative element of a crime is a contradiction in terms. Adding the description 'unarmed' to robbery adds nothing. 'Robbery' and 'unarmed robbery' are the same offense." (Emphasis changed.)

In the instant case, "without malice" is the absence of an element, rather than an additional element which the people must prove beyond a reasonable doubt. Malice or "malice aforethought" is that quality which distinguishes murder from manslaughter and is defined in People v. Morrin, 31 Mich.App. 301, 310-311, 187 N.W.2d 434, 438 (1971), as "the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification...

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