People v. Hicks, Docket No. 77-3416

• Decision Date: 21 February 1979
• Docket Number: Docket No. 77-3416
• Citation: 279 N.W.2d 45,88 Mich.App. 675
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stacey HICKS, Defendant-Appellant. 88 Mich.App. 675, 279 N.W.2d 45
• Court: Court of Appeal of Michigan — District of US

Page 45

279 N.W.2d 45

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stacey HICKS, Defendant-Appellant.

Docket No. 77-3416.

88 Mich.App. 675, 279 N.W.2d 45

Court of Appeals of Michigan.

Feb. 21, 1979.

Released for Publication May 29, 1979.

[88 MICHAPP 676] Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief, Asst. Pros. Atty., Don W. Atkins, Asst. Pros. Atty., for plaintiff-appellee.

Before BEASLEY, P. J., and BRONSON and KAUFMAN, JJ.

PER CURIAM.

Defendant was charged with felony murder, in violation of M.C.L. § 750.316; M.S.A. § 28.548, and armed robbery, contrary to M.C.L. § 750.529; M.S.A. § 28.797, in connection with the September 24, 1974, robbery of a "dope house" in which three individuals were killed. Following a jury trial held June 10-17, 1977, defendant was convicted of voluntary manslaughter, M.C.L. § 750.321; M.S.A. § 28.553, [88 MICHAPP 677] and armed robbery. Defendant was sentenced to concurrent terms of 10 to 15 years imprisonment for manslaughter and 15 to 25 years for armed robbery. He now appeals as of right.

Defendant's first contention is that the trial court erred in its felony-murder instructions by removing the element of malice from the jury's consideration. Our Court has split on the issue of whether malice is imputed from the underlying felony or must be submitted to the jury as a separate element. Compare, for example, People v. Fountain, 71 Mich.App. 491, 248 N.W.2d 589 (1976), People v. Till, 80 Mich.App. 16, 263 N.W.2d 586 (1977), and People v. Wilson, 84 Mich.App. 636, 639-655, 270 N.W.2d 473 (1978) (N. J. Kaufman, J., dissenting).

In the case at bar the judge gave a correct instruction on malice. ¹ However, in response to an objection by the prosecutor, just before the jury retired to deliberate, the judge told the jury that the intent required for the robbery was sufficient for murder. ² This instruction would have been [88 MICHAPP 678] erroneous under the rule announced in Fountain. Even so, the application of the Fountain rule to the present case would not require reversal. It is clear that defendant was not prejudiced by the arguably incorrect instruction. Defendant was convicted of manslaughter, and as stated in People v. Hansma, 84 Mich.App. 138, 144, 269 N.W.2d 504 (1978), "murder, absent malice, is manslaughter". See also People v. Dietrich, 87 Mich.App. 116, 274 N.W.2d 472 (1978). Thus we find no cause for reversal on this claim.

Secondly, defendant argues that his right not to be placed twice in jeopardy for the same offense ³ was violated by the two convictions. We disagree. Again, had defendant been convicted of felony murder and the underlying armed robbery, his contention would have merit. See People v. Anderson, 62 Mich.App. 475, 233 N.W.2d 620 (1975), People v. Wilder, 82 Mich.App. 358, 364, 266 N.W.2d 847 (1978), Lv. grtd. on other gds., 403 Mich. 816 (1978). However, there is nothing constitutionally impermissible about convictions of manslaughter and armed robbery. The two crimes have different elements and different statutory purposes, and neither crime is a lesser included offense of the other. See People v. Jones, 395 Mich. 379, 389-390, 236 N.W.2d 461 (1975). Thus, defendant's second contention must also be rejected.

[88 MICHAPP 679] Defendant raises two additional claims of error, one relating to the jury instructions and one concerning the admission of a shotgun. We have examined the record and have found these claims to be without merit.

Affirmed.

1 "Third, that at the time of the armed robbery which caused the death of the deceaseds, the defendant either intended to kill the deceaseds or consciously created a very high degree of risk of death to another with the knowledge of its probable consequences.

"Fifth, the Defendant must have caused the death without justification, excuse or mitigation."

2 "Felony murder, the element of unlawful intent is satisfied if you find beyond a reasonable doubt that the Defendant intended the robbery.

"It is not necessary that the Defendant intended the death of the...