People v. Duggan

• Decision Date: 11 June 1982
• Docket Number: Docket No. 55033
• Citation: 320 N.W.2d 241,115 Mich.App. 269
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Patrick DUGGAN, Defendant-Appellant. 115 Mich.App. 269, 320 N.W.2d 241
• Court: Court of Appeal of Michigan — District of US

Page 241

320 N.W.2d 241

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Patrick DUGGAN, Defendant-Appellant.

Docket No. 55033.

115 Mich.App. 269, 320 N.W.2d 241

Court of Appeals of Michigan.

Submitted Jan. 15, 1982.

Decided March 10, 1982.

Released for Publication June 11, 1982.

[115 MICHAPP 270] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., Appeals, and Janice M. Joyce, Asst. Pros. Atty., for the People.

Kim Robert Fawcett, Asst. State Appellate Defender, for defendant-appellant on appeal.

Before CYNAR, P. J., and KELLY and RILEY, JJ.

PER CURIAM.

Defendant, Michael Patrick Duggan, was convicted of involuntary manslaughter, M.C.L. Sec. 750.329; M.S.A. Sec. 28.561. He was sentenced to a term of 5 to 15 years in prison with credit for 31 days. He appeals his conviction as of right.

On appeal the defendant argues that the trial court committed error requiring reversal in convicting him of involuntary manslaughter without making a finding that he acted in a grossly negligent manner. We agree that the trial court did not make a finding of gross negligence. We disagree, however, with the defendant's assertion that this is a necessary element of the offense.

M.C.L. Sec. 750.329; M.S.A. Sec. 28.561 provides:

"Any person who shall wound, maim or injure any [115 MICHAPP 271] 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."

The elements of this offense are: (1) a death; (2) that the death was caused by an action of the defendant; (3) that the defendant caused the death without lawful justification or excuse; (4) that the death resulted from the discharge of a firearm; (5) that at the time of such discharge the defendant was pointing or aiming the firearm at the decedent; and (6) that at the time of such discharge, the defendant intended to point or aim the firearm at the decedent. CJI 16:4:06. These elements of this offense were adopted in People v. Doss, 406 Mich. 90, 98, 276 N.W.2d 9, n.3 (1979). The only proof necessary to support a charge under M.C.L. Sec. 750.329; M.S.A. Sec. 28.561 is that the defendant intentionally pointed the gun at the decedent and that the decedent died as a result of the subsequent discharge of the firearm. People v. Germain, 91 Mich.App. 154, 284 N.W.2d 260 (1979), rev'd on other grounds, 411 Mich. 858 (1981). Accord, People v. West, 408 Mich. 332, 291 N.W.2d 48 (1980).

We believe that requiring gross negligence or wilful or wanton conduct to support a charge under M.C.L. Sec. 750.329; M.S.A. Sec. 28.561, would make the offense redundant to involuntary manslaughter under M.C.L. Sec. 750.321; M.S.A. Sec. 28.553, the codification of common-law manslaughter. People v. Doss, 78 Mich.App. 541, 549, 260 N.W.2d 880 (1977), rev'd. on other grounds, 406 Mich. 90, 276 N.W.2d 9 (1979). Involuntary manslaughter under the statutory provision...