People v. Doss, Docket No. 30058

• Decision Date: 21 September 1977
• Docket Number: Docket No. 30058
• Citation: 260 N.W.2d 880,78 Mich.App. 541
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie DOSS, Defendant-Appellant. 78 Mich.App. 541, 260 N.W.2d 880
• Court: Court of Appeal of Michigan — District of US

Page 880

260 N.W.2d 880

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie DOSS, Defendant-Appellant.

Docket No. 30058.

78 Mich.App. 541, 260 N.W.2d 880

Court of Appeals of Michigan.

Sept. 21, 1977.

Released for Publication Jan. 12, 1978.

[78 MICHAPP 544] Lippitt, Perlove, Varga & Zack by Norman L. Lippitt, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief Asst. Pros. Atty., Ronald P. Weitzman, Detroit, for plaintiff-appellee.

Before BEASLEY, P. J., and J. H. GILLIS and KAUFMAN, JJ.

[78 MICHAPP 545] BEASLEY, Judge.

In this case defendant, a Detroit police officer, was charged with manslaughter under M.C.L.A. § 750.329; M.S.A. § 28.561, when he shot and killed a suspect at the scene of a breaking and entering. After preliminary examination, he was bound over for trial. Defendant then moved to quash the information before the judge assigned to handle the pretrial hearing.

In Detroit Recorder's Court the judges act as magistrates in conducting hearings for preliminary examination, but where appeal is sought from a decision whether or not to bind over for trial, that appeal is heard by another Recorder's Court judge. ¹ This practice, which has found approval by the Supreme Court, does not come under the usual rule which precludes a judge of one jurisdiction from hearing an appeal from a decision of another judge enjoying coordinate jurisdiction. ² The justification for the rule in Recorder's Court is that the judges are occupying different roles; in the one instance, acting as magistrates, and in the other, as felony trial judges. Consequently, we consider that Recorder's Court Judge Poindexter acted in an appellate capacity when called upon to rule on defendant's motion to quash the information after bind-over for trial by Recorder's Court Judge Ravitz. For Judge Poindexter, the test was whether there was an abuse of discretion in the bind-over.

The motion to quash was denied, the judge saying that he believed he was bound to deny the motion under the rulings of this court. He specifically[78 MICHAPP 546] referred to People v. Martin ³ which was later overruled by the Supreme Court on other grounds.

Defendant filed a petition in this court for leave to appeal from the order denying the motion to quash; which petition was granted.

The transcript indicates that in responding to an alarm report at a gasoline station, defendant and two other plainclothes officers in an unmarked car arrested a suspect who was on his way out of the gasoline station through a broken window. The officers believed there might be an accomplice and, in answer to an officer's question, the arrested suspect said that he did have a partner, that he did not know where his partner was, but that the partner lived around the corner. Accompanied by three other plainclothes officers who had then arrived at the scene, all of the officers, except the one watching over the arrested suspect, undertook a search of the premises. The search revealed that an axe apparently had been used to break in and to damage some of the station's interior. Seven to ten minutes after the search began, but while the search was continuing, the decedent walked out from behind the gasoline station. The transcript indicates decedent was 21 years old, 5 feet 11 inches tall and weighed 215 pounds. When decedent appeared, defendant immediately moved towards him, followed by a female officer. One officer testified defendant called out, "Detroit Police Officer", while another said she heard defendant say, "stop" or "hold it". When he did not stop, but continued walking west, defendant attempted to encircle the presumed accomplice. As the presumed accomplice neared the service drive on the east side of the I-75 Expressway with defendant in [78 MICHAPP 547] pursuit, he turned with a long object in his hands, which was subsequently described as part of a chair leg. Defendant then ducked and fired one shot, hitting the presumed accomplice. The testimony of the medical examiner indicated that the cause of his death was a gunshot wound, the bullet entering the back of the head, traveling upwards and exiting to the left side of the front of the head. The medical examiner also testified that there were no powder burns and no other evidence of close range firing. ⁴ He also testified the blood alcohol content of the accomplice-victim was .22 percent and that this level indicates being under the influence of alcohol.

At the preliminary examination, Judge Ravitz, acting in the capacity of a magistrate, made the following findings of fact: ⁵

"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 [78 MICHAPP 548] 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 track, 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 added.)

As has been noted, Judge Poindexter reviewed these findings on a motion to quash and his comments reflect a different emphasis regarding the evidence and its effect:

"This Court can only state in this regard that while this Court would rather be the trial judge in this case, in which case this Court would be more adequately able to dispose of this issue, it has been held in a number of recent cases that it is not the law that the people must disprove self-defense where there are no facts which raise the issue, and a preliminary examination is not a trial. It was so held in a recent case, People v. Martin, 59 Mich.App. 471 (221 N.W.2d 809) (1975) where Judge Crockett made the ruling that this Court would like to make in this case (in other words, he dismissed the case), but the prosecution appealed to the Court of Appeals which reversed Judge Crockett and reinstated the case. This Court had one prior occasion where this Court was required to apply this rule and this Court can only say that this Court feels bound by the decision of the Court of Appeals, even though this Court does not agree with [78 MICHAPP 549] the reasoning therein. The motion to quash the information is, accordingly, denied."

The issue on appeal is whether the Recorder's Court judge erred when he refused to quash the information and thus, in effect, held that the magistrate had not abused his discretion in binding defendant over for trial. We hold that 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.

In this case, defendant police officer is charged under a statute which provides as follows:

"329. 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." M.C.L.A. § 750.329; M.S.A. § 28.561.

In Michigan, the offense of common-law manslaughter continues to be recognized M.C.L.A. § 750.321; M.S.A. § 28.553, also People v. Clark, 5 Mich.App. 672, 147 N.W.2d 704 (1967). However, by statute, various criminal acts are defined to be manslaughter in addition to those recognized at the common law, M.C.L.A. § 750.322; M.S.A. § 28.554, Unlawful Killing of an Unborn Child, M.C.L.A. § 750.236; M.S.A. § 28.433, Spring Gun, Trap or Device, M.C.L.A. § 750.329; M.S.A. § 28.561, supra, People v. Townes, 391 Mich. 578, 588, 218 N.W.2d 136 (1974).

The statute under which defendant is here charged is one of a series of statutes concerned with the reckless use of firearms. M.C.L.A. § 750.329; [78 MICHAPP 550] M.S.A. § 28.561. ⁶ In Gillespie's Michigan Criminal Law and Procedure, reference is had to this statute as follows:

"This offense is purely statutory. The statute was designed to punish the careless use of firearms when no mischief was designed. The absence of malice is as necessary an ingredient in the statutory definition as is the use of firearms." 3 Gillespie, Michigan Criminal Law and Procedure (2d Ed.), § 1663, p. 2006.

The history of the statute (now Section 329) indicates it was the third of four sections of 1869 PA 68 which was entitled, "An act to prevent the careless use of firearms", and was compiled as Sections 9110-9113 of Howell's Statutes and as Sections 15233-15236 of Compiled Laws of 1915, as Sections 16777-16780 of the 1929 Compiled Laws. In compiling the 1948 Criminal Code sections, the section corresponding to present Section 329 was slightly rewritten and placed in Chapter XLV, Homicide, whereas the other sections were retained as Sections 234-236, M.C.L.A. § 750.234; M.S.A. § 28.431, 433 in Chapter 37, Firearms. The essential terminology of the statute remained the same.

The statute was interpreted in People v....