People v. Harless, Docket No. 25710

Citation261 N.W.2d 41,78 Mich.App. 745
Decision Date10 October 1977
Docket NumberDocket No. 25710
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jack E. HARLESS, Defendant-Appellant. 78 Mich.App. 745, 261 N.W.2d 41
CourtCourt of Appeal of Michigan (US)

[78 MICHAPP 746] McCallum & Ziolkowski by Robert Ziolkowski, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief Asst. Pros. Atty., Andrea L. Solak, Robert E. Edick, Asst. Pros. Attys., for plaintiff-appellee.

Before BEASLEY, P. J., and V. J. BRENNAN and McDONALD, * JJ.

V. J. BRENNAN, Judge.

Defendant Jack E. Harless was charged with the first-degree murder of Thomas Champagne and Tom Tillinger, contrary to M.C.L.A. § 750.316; M.S.A. § 28.548. Defendant was tried on June 2, 1975, in Recorder's Court for the City of Detroit, and found guilty by jury verdict on June 9, 1975. Defendant was sentenced to life in prison on June 23, 1975. Defendant appeals as of right under GCR 1963, 806.1.

The charges against defendant arose out of an incident which occurred on July 12, 1974. At that point, an argument arose between defendant and Gerald Champagne and Tom Tillinger. Shortly afterward, Thomas Champagne became involved in the argument. Although testimony at trial was in [78 MICHAPP 747] conflict, the fact seems clear that Thomas Champagne, Gerald Champagne and Tom Tillinger followed defendant to his home. Defendant entered his home and gunshots subsequently were fired from an upper window in the house. Thomas Champagne and Tom Tillinger were struck by the gun fire and fatally wounded.

At trial, certain photographs of the shooting scene were offered and admitted into evidence over defense objection by the trial court. The prosecutor later referred to these photographs in delivering his closing argument.

Upon conclusion of prosecution and defense arguments to the jury, the court gave instruction on the elements of first-degree murder, including the element of malice. The court phrased its charge in the following way:

"Malice is implied from the nature of the act which caused the death. Malice can be implied from using the weapon on another person. You are not obligated to reach the conclusion, but you must imply malice if you find death was implied by the use of a gun against another. The doing of a cruel act without excuse or justification."

The court also instructed on the difference between first-degree murder and second-degree murder. In distinguishing between the two, the court made the following statement:

"If you find there was intentional killing of a human being without malice, but you find no contrivance, then you may find the Defendant guilty of Second Degree."

The court concluded its instructions by charging the jury on the lesser included offense of manslaughter. He also instructed on possible finding of [78 MICHAPP 748] self-defense. After its deliberation, defendant was found guilty of first-degree murder.

On appeal defendant raises several allegations of error.

Defendant first contends that the trial court committed reversible error by instructing the jury incorrectly on the implication of malice that might be drawn from defendant's use of a deadly weapon, the effect of which was to remove the possible finding of manslaughter.

The trial court in its instruction to the jury provided them with a definition of malice in the following statement:

"Malice is implied from the nature of the act which caused the death. Malice can be implied from using the weapon on another person. You are not obligated to reach the conclusion, but you must imply malice if you find death was implied by the use of a gun against another. The doing of a cruel act without excuse of justification."

Defendant claims that this instruction was erroneous under People v. Martin, 392 Mich. 553, 560-562, 221 N.W.2d 336 (1974). The Court in Martin held that the law does not imply malice where a deadly weapon is used.

No objection was made to this instruction at the trial level. Consequently, we have held that a similar instruction will "not warrant reversal * * * absent a showing of manifest injustice". People v. Gibson,71 Mich.App. 543, 552, 248 N.W.2d 613, 617 (1976). See also People v. Cain,67 Mich.App. 433, 438, 241 N.W.2d 233 (1976). However, we also noted in Gibson that this standard "does not foreclose our reversal on an uncorrected instruction on a material matter * * * (i)f we find Martin error". People v. Gibson, supra, 71 Mich.App. at 552, 248 N.W.2d at 614.

[78 MICHAPP 749] What Martin intended to prevent was the possibility that the trial court would eliminate jury discretion concerning the fact question whether malice appeared simply by defendant's use of a deadly weapon. The Court found that whether malice arose from defendant's use of a deadly weapon was a permissible inference to be drawn from the evidence by the jury and not a legal presumption to be imposed on the jury by the trial court. Thus, where such presumption is raised as a matter of law, the Court found the jury effectively was precluded from consideration of a verdict of manslaughter. People v. Martin, supra, 392 Mich. at 561, 221 N.W.2d 336.

We do not believe in this case that the instruction given to the jury prevented their factual determination of whether malice existed or, consequently, whether manslaughter was a proper verdict. The court did not charge the jury that they must necessarily find malice from defendant's use of a deadly weapon. The instructions stated that malice "can be implied from using a weapon on another person. You are not obligated to reach the conclusion". Consequently, whether malice could be implied from defendant's use of a weapon was left to the jury to decide on the basis of the facts presented. They were not ordered to find malice simply because a deadly weapon was used. We do not believe the instruction given eliminated the jury's discretion to find an absence of malice, even though a weapon was used.

On the other hand, the charge in Martin conclusively removed the element of malice from jury consideration. The court charged as a matter of law that the use of a deadly weapon implies malice. Under these circumstances, no matter what the facts indicated to the jury, they were required to find malice. The court left no discretion, which [78 MICHAPP 750] simply meant that the jury was legally prevented from considering a verdict of manslaughter. The situation in this case is clearly different. By leaving to the jury the freedom to determine from the facts that malice would not necessarily be implied from the use of a deadly weapon, the trial court did not remove possible consideration of a manslaughter verdict from the jury. See People v. Gibson, supra, 71 Mich.App. at 551-554, 248 N.W.2d 613.

Defendant next contends that the trial court failed to properly instruct the jury on the elements of second-degree murder.

In charging the jury, the trial court at one point instructed in the following manner regarding the offense of second-degree murder:

"If you find there was intentional killing of a human being without malice, that you find no contrivance, then you may find the Defendant guilty of Second Degree."

No objection to this instruction was...

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6 cases
  • People v. Germain
    • United States
    • Court of Appeal of Michigan — District of US
    • 9 Julio 1979
    ...failure to so object waives appellate consideration. People v. Dixon, 84 Mich.App. 675, 685, 270 N.W.2d 488 (1978), People v. Harless, 78 Mich.App. 745, 261 N.W.2d 41 (1977), People v. Hall, 77 Mich.App. 456, 258 N.W.2d 517 (1977), Lv. den. 402 Mich. 909 (1978). However, proper exception wa......
  • Anderson v. Harless, 81-2066
    • United States
    • U.S. Supreme Court
    • 1 Noviembre 1982
    ...murder and was sentenced to life imprisonment. The Michigan Court of Appeals affirmed respondent's conviction, Peo- ple v. Harless, 78 Mich.App. 745, 261 N.W.2d 41 (1977), and the Michigan Supreme Court, on review of the record, denied respondent's request for relief. Petn for Cert Responde......
  • ANDERSON V. HARLESS
    • United States
    • U.S. Supreme Court
    • 1 Noviembre 1982
    ...sentenced to life imprisonment. The Michigan Court of Appeals affirmed respondent's conviction, People Page 459 U. S. 5 v. Harless, 78 Mich.App. 745, 261 N.W.2d 41 (1977), and the Michigan Supreme Court, on review of the record, denied respondent's request for relief. App. to Pet. for Cert.......
  • Harless v. Anderson
    • United States
    • U.S. District Court — Western District of Michigan
    • 8 Enero 1981
    ...sentenced to life imprisonment. His conviction was affirmed by the Michigan Court of Appeals on October 19, 1977, People v. Harless, 78 Mich.App. 745, 261 N.W.2d 41 (1977). A letter request for appeal to the Michigan Supreme Court, pursuant to Administrative Order 1977 4,400 Mich. lxvii, wa......
  • Request a trial to view additional results

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