People v. Hearn

• Decision Date: 02 December 1958
• Docket Number: No. 46,46
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Robert HEARN, Defendant and Appellant. , june Term.
• Court: Michigan Supreme Court

Page 302

93 N.W.2d 302

354 Mich. 468

The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Robert HEARN, Defendant and Appellant.

No. 46, june Term.

Supreme Court of Michigan.

Dec. 2, 1958.

Edward N. Barnard, Detroit, for defendant-appellant.

Thomas M. Kavanagh, Atty. Gen., Samuel J. Torina, Sol. Gen., Lansing, Frederick C. Ziem, Pros. Atty., Oakland County, George F. Taylor, Chief Asst. Pros. Atty., Jack Hanna, Asst. Pros. Atty., Pontiac, for the People.

Before the Entire Bench, except KAVANAGH and EDWARDS, JJ.

KELLY, Justice.

While perpetrating a robbery at a Ferndale gas station defendant Hearn beat, stabbed and mortally wounded the station attendant. A jury found defendant, and 3 others who participated in the robbery, guilty of first degree murder. This is defendant Hearn's separate appeal, and the other defendants are not appealing.

The information contained one count, alleging that defendant feloniously, wilfully and with malice aforethought did kill and murder one Alfred Jones (the gas station attendant). Only one question is presented in this appeal: 'Did not the court err in refusing to charge as to included offenses, as orally requested, and in excluding consideration of the lesser offenses from the jury?'

Defendant did not deny that his acts of beating and stabbing caused the attendant's death, but relied upon the defense of temporary insanity, claiming he did not know what he was doing because of his consumption of alcohol and marijuana. Conflicting testimony on this question included medical testimony.

An examination of the court's charge to the jury discloses that the jury was completely and properly instructed and defendant fully protected, as shown by the following instruction:

'Now, the defense in this case is marijuana and alcohol, either one or both, or a combination. The defense claims that because of its use that the respondents in this case did not know what they were doing or why they were doing it and consequently could not form an intent to rob and didn't know the difference between right and wrong. Now, these are questions for you to decide upon after your reach the jury room. * * *

'If their mental faculties were so far overcome by the use of marijuana and liquor that they were not conscious of what they were doing, or if they knew what they were doing but did not know why they were doing it, or that their actions and the means they were using were naturally adapted to produce death, then they had not the capacity to entertain the intent and, in such case, intent could not be inferred from their actions. * * * This question of intent and common purpose to rob a gas station is a question of fact for you to determine after considering the acts before the commission of the crime and afterwards, and bearing upon the question of whether or not they knew what they were doing. Take into consideration all the testimony bearing upon that question. * * *

'You cannot convict unless you find intent to commit the crime of rebbery. You don't have to find intent to kill, but you do have to find intent to commit the crime of robbery. If you don't find that intent, of course the respondents are not guilty. If you do find it, then there is another question for your to pass on. You must find intent to commit the crime of robbery, felonious intent, before you can convict of first degree murder.'

Appellant claims the jurors should have had the right to select between first and second degree murder and manslaughter.

This Court passed upon a similar claim in People v. Utter, 217 Mich. 74, 185 N.W. 830, where the defendant was charged with statutory murder committed in the perpetration of a robbery and where defendant claimed the trial judge erred in instructing the jury that their verdict should be murder in the first degree or not guilty. At page 87 of 217 Mich., at page 835 of 185 N.W., the Court stated:

'In State v. Zeller, 77 N.J.L. 619, 73 A. 498, defendant was charged with murder while perpetrating robbery under a like statute with ours. A statute of that state also provided, as here, that, if the jury found the accused guilty of murder, they should ascertain the degree. In a well-reasoned opinion it was held that the latter provision did not give a defendant the right to have the court leave it to the jury to find him guilty of a lesser degree if there was no reasonable ground for such verdict in the evidence, saying in part:

"Our statute * * * declares that murder committed in the perpetration or attempt to perpetrate a robbery is murder in the first degree. All the evidence that tended to implicate Zeller in the murder of William Read (including Zeller's own confession) tended to show that the murder was committed in the perpetration of a robbery. All the circumstances of the homicide bore a similar import as to the character of the crime. If, under the evidence, Zeller was guilty at all, he was guilty of a murder committed in the perpetration of a robbery. The charge of the trial judge upon this question was therefore entirely proper.'

'In People v. Schleiman, 197 N.Y. 383 ...