People v. Hollis, Docket No. 8781

• Decision Date: 27 January 1971
• Docket Number: No. 1,Docket No. 8781,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herbert HOLLIS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 8

186 N.W.2d 8

30 Mich.App. 218

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herbert HOLLIS, Defendant-Appellant.

Docket No. 8781.

Court of Appeals of Michigan, Division No. 1.

Jan. 27, 1971.

Released for publication April 30, 1971.

Thomas A. Neenan, Detroit, for defendant-appellant.

Frank J. Kelley, Atty Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and J. H. GILLIS and JEANNETTE, ^* JJ.

PER CURIAM.

The defendant, Herbert Hollis, was charged with killing one Marie Grubb by negligently discharging a firearm contrary to M.C.L.A. § 752.861 (Stat.Ann.1962 Rev. § 28.436(21)) which provides:

'Sec. 1. Any person who, because of carelessness, recklessness or negligence, but not wilfully or wantonly, shall cause or allow any firearm under his immediate control, to be discharged so as to kill or injure another person, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison for not more than 2 years, or by a fine of not more than $2,000.00, or by imprisonment in the county jail for not more than 1 year, in the discretion of the court.'

He was found guilty by a jury and sentenced to serve 1 1/2 to 2 years in Southern Michigan Prison.

The facts of the case are as follows: Defendant Hollis was the boyfriend of the deceased and sole witness to the shooting. On November 4, 1968 Hollis was in his bedroom preparing to return a shotgun he had borrowed to use on a hunting trip. Marie Grubb was in a small bathroom adjacent to the bedroom. Defendant told police that he was sitting on the edge of the bed with the shotgun lying across his lap. Believing that there were only three shells in the gun and that the safety was on, he ejected three shells from the gun and pulled the trigger. The gun discharged fatally wounding Marie Grubb in the chest. Hollis stated in a police report admitted into evidence that he thought that the gun was pointed at a wall and that he was unaware of his girlfriend's presence. Examination of the shotgun showed that there was still another live shell in the chamber after the shooting.

The prosecutor's expert witnesses testified that the gun was not more than 6 inches from the deceased when it went off. This testimony tended to refute defendant's statement to the police that he was unaware of Marie Grubb's presence. The prosecutor also elicited facts tending to cast doubt upon the defense's theory that the shotgun was on defendant's lap when it discharged. Defendant did not testify or offer any evidence in his behalf.

On appeal, defendant questions the sufficiency of the evidence to support the conviction and the propriety of the court's charge to the jury.

It is contended that the evidence produced at trial was insufficient to sustain a finding of...