People v. Goodard, Docket No. 21009

• Citation: 82 Mich.App. 424,266 N.W.2d 832
• Decision Date: 04 April 1978
• Docket Number: Docket No. 21009
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard L. GOODARD, Defendant-Appellant. 82 Mich.App. 424, 266 N.W.2d 832
• Court: Court of Appeal of Michigan — District of US

Page 832

266 N.W.2d 832

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard L. GOODARD, Defendant-Appellant.

Docket No. 21009.

82 Mich.App. 424, 266 N.W.2d 832

Court of Appeals of Michigan.

April 4, 1978.

Released for Publication June 27, 1978.

[82 MICHAPP 426] James R. Neuhard, State App. Defender by Janet M. Tooley, Asst. State App. Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Stephen F. Adamini, Pros. Atty., Thomas C. Nelson, Pros. Attys. App. Service, for plaintiff-appellee.

Before WALSH, P. J., and MAHER and BEASLEY, JJ.

PER CURIAM.

Convicted after a jury trial of first-degree murder and sentenced to life imprisonment, defendant appeals as of right.

On September 25, 1973, Earl DeMarse was fatally stabbed while on guard duty at the Marquette State Prison. Inmate Gary DeWar testified that the day before the killing, defendant told him he was going to kill the guard the next morning. Defendant allegedly said he would wear coveralls to keep the blood off his clothes. He also showed DeWar a blackhandled knife, 10 to 12 inches long.

On the morning the homicide occurred, defendant was seen wearing coveralls. Inmate Richard Patterson testified that he saw defendant holding DeMarse by the shirt and stabbing him with a knife.

Shortly after the homicide occurred, two guards found appellant and two other inmates in the yardshack. They searched the men and returned them to their cells. A pair of bloodstained coveralls was found in the shack about one-half hour afterwards.

[82 MICHAPP 427] A knife was found in the auditorium piano two days after DeMarse was killed. The knife was covered with a type-A bloodstain. The victim's blood was type-A. The knife, however, was not the knife defendant had shown inmate DeWar before the killing.

Defendant alleges a number of errors, but we find one issue dispositive. In instructing the jury, the court charged:

"In defining a crime of murder, either first or second degree, I inform you that a necessary element is that the killing must have been done with malice aforethought. Malice is here used in a technical sense, including not only anger, hatred or revenge, but every other unlawful and unjustifiable motive." (Emphasis supplied.)

In Nye v. People, 35 Mich. 16 (1876), the Court declared such an instruction to be erroneous.

"The definition of malice given in the case would remove manslaughter from the catalogue of homicides. Every crime must be attended with an unlawful and unjustifiable motive. Malice includes those which are more wicked, but it does not include them all. There are many unlawful and unjustifiable motives which have never been classed as malicious." 35 Mich. at 18.

The erroneous instruction cannot be saved by reference to the instructions which follow. There is clear error in the rest of the instructions. But even if there were not, we must abide by the long-standing rule in Michigan of reversing convictions in cases in which the trial court has given conflicting instructions, one erroneous and the other without error. In such cases, "it may be presumed that the jury followed that instruction which was erroneous". People v. Eggleston, 186 Mich. 510, 514-15, [82 MICHAPP 428] 152 N.W. 944, 945 (1915). See, also, People v. Burkard, 374 Mich. 430, 132 N.W.2d 106 (1965).

"When an allegedly erroneous instruction is subject to two or more interpretations, it is logical to read the instructions in their entirety to determine if the trial court resolves the ambiguity by other comments it makes and instructions it gives." People v. Beard, 78 Mich.App. 636, 639, 261 N.W.2d 27, 29 (1977).

The instruction given by the trial court is not ambiguous or susceptible to differing interpretations. Reference to the rest of the trial court's instructions, had they been without error, would have served no purpose. We presume the jury followed the erroneous instruction. Therefore, in accord with Eggleston, Burkard, and Beard we must reverse the trial court decision on the basis of the erroneous instruction.

We are aware of the results reached in People v. Borgetto, 99 Mich. 336, 58 N.W. 328 (1894), and People v. Livingston, 63 Mich.App. 129, 234 N.W.2d 176 (1975), but in light of Eggleston and Burkard, we must regard Borgetto as implicitly overruled.

There is another serious error in the remainder of the trial court's instructions. The trial court charged the jury as follows:

"Therefore, malice is implied from any deliberate or cruel act against another however sudden.

The law implies from such unprovoked, unjustifiable or inexcusable killing, the existence of that wicked disposition which the law terms malice aforethought."

In Maher v. People, 10 Mich. 212 (1862), the Supreme Court held that malice is not implied by law.

[82 MICHAPP 429] "The question whether * * * (malice) existed or not, in the particular instance, would, upon principle, seem to be as clearly a question of fact for the jury, as any other fact in the cause, * * * and that the court have no right to withdraw the question from the jury by assuming to draw the proper inferences from the whole, or any part of, the facts proved, as a presumption of law." 10 Mich. at 217-218. (Emphasis in original.)

More than a century later, in People v. Martin, 392 Mich. 553, 221 N.W.2d 336 (1974), the Supreme Court reaffirmed the holding of Maher v. People, supra.

"Michigan has long ago considered malice a permissible inference to be drawn by the jury rather than a presumption of law." 392 Mich. at 561, 221 N.W.2d at 340.

Contrary to the trial court's instruction, malice is not always or necessarily implied from any deliberate or cruel act nor from an unprovoked, unjustifiable or inexcusable killing. Malice may be implied and the jury may infer it, but the law does not imply malice. The trial court's instruction effectively removed from jury consideration the element of malice.

A defendant has an absolute right to a jury determination upon all essential elements of the charge. People v. Reed, 393 Mich. 342, 224 N.W.2d 867 (1975), citing United States v. England, 347 F.2d 425, 430 (CA 7, 1965). Malice is an essential element of the crime of murder. People v. Morrin, 31 Mich.App. 301, 187 N.W.2d 434 (1971). The trial court committed reversible error by effectively removing the element of malice from jury consideration.

Finally, the trial court's explanations of the term "malice" are patently erroneous.

[82 MICHAPP 430] "If one without cause inflicts a wrong upon another, we call him wicked and malicious."

The implication from this portion of the judge's instruction is that malice is tantamount to wickedness. Such is not the case.

"Malice aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter." People v. Morrin, supra, at 310-11, 187 N.W.2d at 438.

Malice, as an element of murder, is a term of art. Contrary to the implication of the trial court's charge, the term does not mean malice as used in ordinary speech.

"(I)t is well-nigh impossible to communicate to jurors in the arcane jargon of malice aforethought the mental state required. No doubt many jurors are confused, and many, in error but understandably, make up their own working definition out of their own appreciation of what malice aforethought 'must' mean." People v. Morrin, supra, at 320, 187 N.W.2d at 444.

Insofar as it defines malice only in terms of the absence of justifiable circumstances and equates malice with wickedness, the trial court's instruction is reversibly erroneous.

Because the instruction given by the trial court is replete with error, defendant's conviction is reversed.

BEASLEY, Judge (dissenting).

I respectfully dissent.

Defendant was convicted by a jury of first-degree murder and sentenced to life imprisonment, and now appeals as of right. The majority would reverse[82 MICHAPP 431] that conviction on the basis of allegedly erroneous instructions by the trial court.

It is well settled that, absent a showing of manifest injustice, criminal defendants seeking a review of allegedly erroneous instructions to the jury must make a timely objection to those instructions. ¹ There was no objection in the within case; indeed, defense counsel expressed satisfaction with the instructions as given. Considering the overwhelming evidence of guilt in the within case and reading the instructions as a whole, I would hold that there was no affirmative showing of manifest injustice on the record and would decline to review the alleged error.

However, assuming arguendo that the issue had been preserved for review, I would hold, for the following reasons, that there was no reversible error.

The first of three complained-of instructions is quoted by the majority as follows:

"In defining a crime of murder, either first or second decree, I inform you that a necessary element is that the killing must have been done with malice aforethought. Malice is here used in a technical sense, including not only anger, hatred or revenge, but every other unlawful and unjustifiable motive."

The majority correctly note that the above-quoted instruction given in that exact form, but standing alone, was found to be erroneous by the Supreme Court. ² However, there was more to the instruction given in the within case. The trial court continued:

[82 MICHAPP 432] "It is not confined to particularly ill-will to the deceased, but is intended to denote an action flowing from a wicked and corrupt motive. A thing done, as the book says, 'malo animo', meaning with an evil mind; with a bad purpose or wrong intention and, therefore, malice is implied from any deliberate or cruel act against another however sudden. The time in which the wicked purpose is formed is immaterial. Malice aforethought does not imply deliberation or the lapse of considerable time between the formation and...