People v. Dumas, Docket No. 7580
| Decision Date | 01 July 1970 |
| Docket Number | Docket No. 7580,No. 2,2 |
| Citation | 181 N.W.2d 89,25 Mich.App. 173 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lem DUMAS, Jr., Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Kenneth H. Smith, Lapeer, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John P. Spires, Pros. Atty., for plaintiff-appellee.
Before McGREGOR, P.J., and BRONSON and MAHINSKE, * JJ.
Defendant was convicted by a jury of 2nd degree murder and from this he appeals. C.L.1948, § 750.317 (Stat.Ann.1954 Rev. § 28.549). He contends that the trial court erred in allowing the jury to consider 1st and 2nd degree murder as possible verdicts, and also, that the instruction as to 2nd degree murder was incorrect.
Defendant contends that there was no direct evidence produced at trial to sustain a verdict of either 1st or 2nd degree murder. We disagree.
Deliberation and premeditation, which would have been necessary to prove 1st degree murder, could have been inferred from the character of the weapon used, the wound inflicted, and the circumstances surrounding the killing. People v. Bauman (1952), 332 mich. 198, 205, 50 N.W.2d 757; People v. Wolf (1895), 95 Mich. 625, 629, 55 N.W. 357. Since there was ample evidence for the jury to find murder in the 1st or 2nd degree, it was properly a jury question; thus, there was no reversible error in allowing the question to go to the jury.
Defendant's next assignment of error concerns the charge to the jury, in which the judge said, 'If the killing was done on sudden impulse then the respondent would be guilty of murder in the 2nd degree.' He asserts that this was error because the element of malice aforethought was omitted.
The above quoted language came at the point where the judge was instructing as to the difference between 1st and 2nd degree murder. The judge also stated that, for the killing to be murder in either degree, there must be malice, and instructed the jury that the difference between murder and manslaughter is this element. When the instruction is read as a whole, the instruction with reference to murder in the 2nd degree was correct. The Court, in People v. Robinson (1968), 11 Mich.App. 162, 165, 160 N.W.2d 744, 746, held that:
'Instructions must be considered in their entirety; error cannot be established by one phrase lifted from the whole charge, unless the...
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...from the character of the weapon used, the wound inflicted, and the circumstances surrounding the killing. People v. Lem Dumas, 25 Mich.App. 173, 181 N.W.2d 89 (1970), lv. den., 384 Mich. 800 (1971), People v. Griner, 30 Mich.App. 612, 186 N.W.2d 800 (1971), People v. Macklin, 46 Mich.App. ......
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...It is enough that the purpose was deliberately formed, and preceded and induced the act.' In the case of People v. Dumas (1970), 25 Mich.App. 173, 174, 181 N.W.2d 89, 90, our Court stated: 'Defendant contends that there was no direct evidence produced at trial to sustain a verdict of either......
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