People v. Dupuis

• Decision Date: 04 November 1963
• Docket Number: No. 1,1
• Citation: 124 N.W.2d 242,371 Mich. 395
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Basil DUPUIS, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 242

124 N.W.2d 242

371 Mich. 395

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Basil DUPUIS, Defendant and Appellant.

No. 1.

Supreme Court of Michigan.

Nov. 4, 1963.

George F. Taylor, Pros. Atty., Robert L. Templin, Senior Asst. Pros. Atty., Pontiac, for the People.

Weller, Summer & Feder, Detroit, for defendant and appellant.

Before the Entire Bench.

DETHMERS, Justice.

Defendant appeals from an order denying his motion for new trial which he based on alleged invalidity of the verdict.

The jury returned a verdict finding defendant 'guilty as charged'. The information on which he was tried charged that defendant, and others who were codefendants, 'feloniously, wilfully and of their malice aforethought, did kill and murder one Alfred Jones, contrary to Section 316, of Act 328 of the Public Acts of 1931, as amended.' (C.L.1948, § 750.316 [Stat.Ann.1954 Rev. § 28.548]). Said section 316 provides that 'All murder * * * which shall be committed in the perpetration, or attempt to perpetrate * * * robbery * * * shall be murder in the first degree * * *' The next succeeding section, 317, defines as second degree murder all other murder not included in section 316. The proofs showed that the killing of Alfred Jones undisputedly was committed in the perpetration of a robbery. The court, after reading the language of section 316 to the jury, instructed them that the latter portion thereof, relating to a killing committed in the perpetration of a robbery, pertained to this case, that it was that statutory provision under which the information in this case was filed and, finally, that in order to find defendants guilty of murder in the first degree the jury must find them also guilty of robbery armed, failing which they could not find them guilty of murder in the first degree. The court did not charge as to second degree murder or permit the case to go to the jury on that or any lesser included offense, but instructed them that, 'The respondents are here in court to answer the charge of first degree murder.'

Section 318 of the mentioned act provides that if a jury finds a defendant guilty of murder, they shall 'ascertain in their verdict, whether it be murder of the first or second degree.' This statutory requirement has been recognized or upheld and given effect in a number of cases decided by this Court, some holding verdicts not in compliance therewith invalid.

In Tully v. People, 6 Mich. 273, defendants were indicated for murder. The indictment contained two counts, charging murder as to common law. The jury returned a verdict of guilty as charged. It left open to question the offense of which defendants were convicted. This Court reversed because the jury did not observe the statutory mandate of determining the degree of murder.

People v. Potter, 5 Mich. 1, is not directly in point, but in reversing for failure of the trial court to propertly instruct the jury concerning degree of murder, this Court, in passing, alluded to the statutory requirement that the jury determine the degree.

People v. Hall, 48 Mich. 482, 12 N.W. 665 was a case of murder by poisoning. It was held that it was a case of murder in the first degree under the statute, and that the jury should have been so instructed. The jury was not so instructed in that case, the information did not charge the degree of the murder of the manner of its commission and the jury did not find the degree. Stressing that the jury did not find it murder in the first degree, it was held error to impose sentence as for first degree murder.

People v. Repke, 103 Mich. 459, 61 N.W. 851, contains a statement in this Court's opinion that it is the duty of the jury to find the degree of murder in their verdict, but this Court held that it did not constitute an invasion of that jury duty for the court to instruct that they should find defendant either guilty of murder in the first degree or not guilty. The jury found defendant guilty of murder in the first degree.

In People v. Clark, 155 Mich. 647, 119 N.W. 1094, the information charged defendant with murder without specifying the degree or manner of its perpetration. The trial judge instructed the jury that defendant was either guilty of murder in the first degree or not guilty of the crime charged, and that there was no murder in the second degree or manslaughter in the case. The jury found 'guilty as charged'. This Court reversed because, inter alia, the jury did not determine the degree of murder. Despite the trail court's instructions as above mentioned, the information and the charge it contained was not definite or specific so the degree of murder the jury had found could be ascertained from a verdict of 'guilty as charged'.

In People v. Treichel, 229 Mich. 303, 200 N.W. 950, where the information charged murder in common law terms without alleging the degree, manner or means employed, this Court held that it was not error for the court to refuse to charge that only murder in the first degree could be found because, as this Court said, second degree murder and also manslaughter, of which defendants were convicted, were included offenses. This, the defendant here says, supports his contention that a charge of willful murder with malice aforeought does not charge first degree murder exclusively, but leaves room for a finding of second degree murder, and, hence, a verdict of guilty of such charge does not determine the degree of murder found.

Defendant urges Attorney General v. Recorder's Court Judge, 341 Mich. 461, 67 N.W.2d 708, as controlling and requiring reversal in this case. In that case we said that:

'The information filed against Wruble charged 'murder' without specifying the degree, and the only intimation that first degree murder may have been charged is the statutory reference at the foot of the information, which reads: 'See 316 MPC 1931'.'

This Court then proceeded on the theory, as above stated, that the information 'charged 'murder' without specifying the degree' and said 'The situation here is analogous to that in People v. Simon, 324 Mich. 450, 36 N.W.2d 734, 737, * * *' In Simon we had said, 'The information charged murder without specifying the degree.' and that, accordingly, from the jury's finding of 'guilty as charged' we could not tell whether murder in the first degree was found by the jury. Accordingly, in Attorney General v. Recorder's Court Judge, supra, we held that a verdict of 'guilty as charged' in that case, as in Simon, was not determinative of the degree of murder because the charge did not specify it.

How do decisions in the above cases apply to the facts in the case at bar? In Tully there was an open charge of murder which did not specify the degree or manner or means of its perpetration. In the case at bar, by contract, the information charged that the murder was committed contrary to said section 316, which defines only first degree murder. Potter did not decide the...