People v. Fountain
| Decision Date | 18 October 1976 |
| Docket Number | Docket No. 18125 |
| Citation | 71 Mich.App. 491,248 N.W.2d 589 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carl FOUNTAIN, Jr., Defendant-Appellant. 71 Mich.App. 491, 248 N.W.2d 589 |
| Court | Court of Appeal of Michigan — District of US |
[71 MICHAPP 492] James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., E. Stanley Everett, Pros. Atty., for plaintiff-appellee.
Before BRONSON, P.J., and CAVANAGH and WALSH, JJ.
The defendant was convicted by a jury of first-degree murder, M.C.L.A. § 750.316; M.S.A. § 28.548. He was sentenced to life imprisonment, and appeals of right.
On November 8, 1972, the defendant and two friends planned to rob Mark Crissy. Shortly before 11:00 p.m. the three proceeded to Crissy's house. The trial testimony established that the three had agreed to take a gun to perpetrate the robbery, although there was dispute as to who actually carried and eventually used the weapon.
Upon arriving at the Crissy residence, the defendant and one of the others went to the rear of the house while the third person waited in the car. When they reached the back door, the two men knocked. As the victim answered the door, whoever had the gun shot him once, fatally wounding him. The two men immediately fled.
The defendant's co-perpetrators pleaded guilty to lesser offenses, one to unarmed robbery and the other to attempted unarmed robbery, in exchange [71 MICHAPP 493] for their testimony. The defendant was tried for first-degree felony murder. He makes three claims on appeal: (1) that the court's instructions withdrew from the jury the essential element of malice regarding the killing of the victim; (2) that the trial court erroneously admitted into evidence two photographic exhibits of the deceased victim; (3) that the imposition of the mandatory life sentence was invalid on constitutional grounds.
The defendant's attack on the instructions focuses on the trial court's failure to instruct the jury that in order to convict the defendant of first-degree murder it had to find that the killing was done with malice. 1 Defendant argues that the effect of the instructions was to remove the essential element of malice from the jury, and consequently to permit the jury to convict him of first-degree murder without finding all of the essential elements of that crime.
In charging the jury, the trial court rendered a correct reading of M.C.L.A. § 750.316; M.S.A. § 28.548:
'All murder committed in the perpetration or attempt to perpetrate any robbery is murder in the first degree.' (Tr. 220--221).
However, interpreting that statute, the court charged:
'If you find that the Defendant and another party were acting together, if you are convinced beyond all reasonable doubt that the Defendant aided and abetted in the perpetration of a robbery or attempt to commit a [71 MICHAPP 494] robbery of Mr. Crissy which resulted in the Killing of Mr. Crissy which I charge you that the Defendant is guilty of murder in the first degree.' (Tr. 221) (Emphasis added.)
'If you are convinced beyond a reasonable doubt that the Defendant committed the offense as charged in the information, namely, engaging in the robbery of Mr. Crissy resulting in the Death of Mr. Crissy, then of course he would be guilty of murder in the first degree.' (Tr. 228--229).
(Tr. 232--33) (Emphasis added.)
It is apparent that these instructions did remove from the jury consideration of the element of malice. By instructing that the jury could return a verdict of first-degree murder if they found that the victim was 'killed' (not 'murdered') in the perpetration of a robbery by the defendant, the court in effect imputed the element of malice to the defendant's act. In so doing, the trial court applied the common law felony-murder doctrine. 2 [71 MICHAPP 495] The propriety of the above instructions turns on whether such a doctrine still exists in Michigan. A brief overview of the development of that doctrine in England and in the United States will provide some context for the discussion of this issue.
In early English law the mental state of the defendant was not a factor in determining liability. 3 Coke stated that all killing which resulted from the commission of an unlawful act was murder, 4 although a later writer indicated that Coke had misconstrued the cases upon which he relied as authority for his statement. 5
Sir Matthew Hale's discussion is not clear, but he seemed to consider that a killing was murder only if the unlawful act was a felony. 6 Foster clearly differentiated between killings committed in the perpetration of felonies and those committed in the perpetration of misdemeanors.
"If it be done in the prosecution of a felonious intention it will be murder, but if the intent went no further than to commit a bare trespass manslaughter." 7
Justice Stephen spoke of Coke's statement of the [71 MICHAPP 496] rule as 'astonishing' and even of Foster's mitigated version as 'cruel and, indeed, monstrous' and argued that neither was adequately supported by authority. 8 Even before Stephen's writing, his judicial contemporaries had mitigated the harshness of the rule in certain cases. 9
Justice Stephen incorporated his views in his opinion in Regina v. Serne , 16 Cox Crim.Cas. 311 (1887). The defendant had set fire to a house and shop in order to collect the insurance. In the conflagration, a boy sleeping in the house was burned to death Stephen instructed the jury:
This decision was the basis for the felony-murder rule as applied in England during the first half of this century. 10
Insofar as Serne required the same degree of wanton and wilful disregard of life as would constitute malice aforethought 11, the case seemed to abolish the felony-murder rule for all practical purposes. 12 By requiring a showing of malice for a conviction of murder, Serne rejected the imputation of malice from the felony to the killing--the hallmark of the felony-murder doctrine.
There is language in the early Michigan cases which indicates that this state had a felony-murder doctrine similar to the one stated by Foster. However, although the doctrine was alluded to in several cases dealing with murder and manslaughter, none of those cases involved a charge of felony murder and nowhere in those cases is there a well-reasoned discussion of the rule's application. In the absence of any actual application of the doctrine, and in view of the aforementioned development in England during the late 19th century, the Michigan cases of that period do little to define the nature of the rule as it existed in this state.
Analysis of the development of Michigan law in this area must begin with a discussion of our murder statutes, which have existed substantially in their present form since 1837.
[71 MICHAPP 498] 'All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, or burglary, shall be murder of the first degree.' 13
'All other kinds of murder shall be murder of the second degree.' 14
Michigan's first-degree murder statute was taken from the Pennsylvania statute adopted in 1792. The latter statute was not an attempt to establish, by legislative enactment, the felony-murder doctrine which at that time existed in English common law. In fact the intent was just the opposite. The statute was part of an effort to reform the penal laws in that state, and was intended to narrow the scope of capital offense. William Bradford, a Justice on the Pennsylvania Supreme Court, had prepared a memoir in which he concluded that the only capital crime should be 'deliberate assassination'.
A resolution was adopted which divided murder into two degrees, and which provided for capital punishment only for first-degree murder. First-degree murder was limited to murder committed by means of poison, lying in wait, or any other kind of deliberate and premeditated killing. The provision adding murder committed in the perpetration of robbery, burglary, arson or rape was tacked on to the resolution by motion from the floor on the [71 MICHAPP 499] bill's second reading. The resolution was enacted as so amended. 15
In 1837, the Pennsylvania murder statute was adopted verbatim by the Michigan Legislature. The Michigan statute, now M.C.L.A. § 750.316; M.S.A. § 28.548, like the Pennsylvania statute, is not a felony murder statute. It does not make a Killing committed in the course of the enumerated felonies murder. It does not define 'murder'. People v. Potter, 5 Mich. 1,...
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