People v. Fredericks

• Decision Date: 26 October 1971
• Docket Number: No. 2,Docket No. 11544,2
• Citation: People v. Fredericks, 194 N.W.2d 42, 36 Mich.App. 632 (Mich. App. 1971)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gene Wallace FREDERICKS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 42

194 N.W.2d 42

36 Mich.App. 632

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Gene Wallace FREDERICKS, Defendant-Appellant.

Docket No. 11544.

Court of Appeals of Michigan, Division No. 2.

Oct. 26, 1971.

Released for Publication Feb. 10, 1972.

Ivan E. Barris, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., Thomas G. Plunkett, Pros.Atty., for plaintiff-appellee.

Before DANHOF, P.J., and McGREGOR and QUINN, JJ.

QUINN, Judge.

August 5, 1970, a jury found defendant guilty of first-degree murder, M.C.L.A.1971 Cum.Supp. § 750.316(Stat.Ann. 1971 Cum.Supp. § 28.548).He was sentenced; his motion for new trial was denied, and he appeals.

We have examined each of the alleged errors hereinafter discussed in context with the record, briefs and oral arguments.We affirm.

It is conceded that defendant shot and killed Neil Churchill in the early morning of June 3, 1970.At one time, defendant and decedent were in business together, and they and their wives went together socially.In 1968, Churchill and defendant's wife began having an affair.This became known to defendant; it led to marital difficulties between defendant and his wife which ultimately resulted in the wife filing for divorce.Subsequently, it appeared that the marriage could be saved, and then on the night of June 2, 1970, defendant's wife acknowledged to him that she could not give up Churchill.

Upset by this turn of events, defendant drove around in his car for awhile and then decided that he should talk to Churchill.Defendant drove to the rear of Churchill's place of business and found the latter preparing to depart therefrom.As to the ensuing events, defendant testified:

'I got out of my car, and I had my pistol on me, as I always did.And I had it in my belt.And as I was getting out of the car, as you get out of the car, and you have a pistol, you, by habit, make sure it doesn't fall.And as I got out of the car, and I hollered at him, 'Churchill, I've got to talk to you.'And he whirled around and he said 'you son-of-a-bitch.'He had his arm up in the air like this, lunging forward, and he had a gun in his hand.And the next thing I heard a gun go off and I didn't know whose gun had gone off.And I had saw him fall forward.And I hollered, 'Neil, Neil,' and I ran over to him.And I looked down at him.I could hear him breathing, but I could see blood.'

Defendant called the police and requested an ambulance for a man who had been shot.Defendant surrendered voluntarily to the police.Defendant knew Churchill carried a gun and Churchill knew defendant carried one also.The defense was self-defense and temporary insanity.

With respect to the instructions on self-defense, defendant contends that a portion thereof places the burden of proof on him, and that a portion thereof led the jury to believe that self-defense would only lie in the event of an actual, rather than apparent assault.By the usual method of selecting portions of the instructions which support his position, defendant supports these contentions.The invalidity of defendant's position is best demonstrated by quoting the entire instruction on self-defense:

'Now, concerning self-defense, an aggressor is not necessarily a person who may strike the first blow in a personal encounter, or make the first demonstration indicating an intent to strike; but, if a defendant with malice and hatred in his heart towards another person, seeks to provoke a difficulty, either by acts or words, with the intent to induce such other person to strike the first blow, or to make the demonstration, in order to form a pretext to take his life, then the defendant could not avail himself of the right of self-defense.

If the defendant was the aggressor in the conflict, he cannot invoke the doctrine of self-defense as an excuse for the killing, unless he was, at that time, in immediate danger of losing his own life or suffering some grievous bodily injury and there was no retreat open for him and his only safety lay in shooting.

Self-defense, in proper cases, is the right of every person but it will not justify the taking of human life, unless the jurors shall be satisfied from the testimony; first, that the defendant was not the aggressor in bringing on the difficulty, that is, he was without fault.Second, that there existed, at the time of the shooting, in his mind, a present and impending necessity to shoot in order to save himself from death or some great bodily harm.And, third, that there must have been no way open whereby he could have retreated, as it appeared to him at the time of the shooting, to a place of safety and have thus avoided the conflict.

Unless you find all three of these facts are established in this case, then the plea of self-defense fails.

The burden of proof of all such matters is upon the People to show that the respondent is guilty beyond a reasonable doubt of the offense charged, and the People's testimony must be such as to satisfy the jurors that the killing was not done in self-defense.

The burden is not on the defendant who makes the defense of self-defense to satisfy the jury of the truth of his claim.

The defense of self-defense is one which is frequently made in homicide cases, and one which the defendant has a right to use.But it should be carefully scrutinized by the jury.And the evidence on this point should be carefully considered and weighed, for the reason that if the defendant acted in self-defense at the...