People v. Jacobson

• Decision Date: 02 December 1976
• Docket Number: Docket No. 22279
• Citation: 72 Mich.App. 489,250 N.W.2d 105
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wilhart Robert JACOBSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 105

250 N.W.2d 105

72 Mich.App. 489

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wilhart Robert JACOBSON, Defendant-Appellant.

Docket No. 22279.

Court of Appeals of Michigan.

Dec. 2, 1976.

Released for Publication Feb. 15, 1977.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

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

Before V. J. BRENNAN, P.J., and KAUFMAN and CAMPBELL, ^* JJ.

V. J. BRENNAN, Presiding Judge.

The defendant, Robert W. Jacobson, was charged with assault with intent to commit murder contrary to M.C.L.A. § 750.83; M.S.A. § 28.278. At a jury trial held on June 11, 1974, the defendant was convicted of the charge. On July 1, 1974, he was sentenced to 25 to 45 years imprisonment.

At trial, the complainant, Beverly Hurtig, testified that on December 14, 1973, she was working alone at the Liberty Loan Company when a man, later identified by her as the defendant, came in and asked for a loan. She asked him to have a seat and she sat opposite him. Mrs. Hurtig took the information required for the loan application. After the application was completed, Mrs. Hurtig told the applicant to call or come back at one o'clock to find out if the loan had been approved.

At this time the applicant pulled out a gun, and after determining that Mrs. Hurtig was alone, told her to go to the back of the office and right out the back door. She attempted to run, but slipped on the ice in the alley. She heard a shot fired, got up, ran, slipped and fell again, and was shot in the arm as she was getting up. She did not see or hear the assailant follow her. She did not look back, nor did she see the shots fired. A shell casing was later found in the alley by the police.

On the day of the assault on Mrs. Hurtig, Detective Forest Henry of the Dearborn Police Department saw her at the hospital and obtained a description of her assailant from her. Detective Henry then caused a teletype of the description obtained to be sent to the other police departments in the Detroit Metropolitan area. Mrs. Hurtig was released from the hospital on December 24, 1973. On December 27, 1973, the defendant was taken into custody by Officer George Harper of the Livonia Police Department. On that same day, Detective Henry received a teletype from the Livonia Police Department that they had a party in custody who fit the description which he had sent out on December 14, 1973.

Detective Henry testified that Mrs. Hurtig was then informed 'that a suspect was in custody and a show-up would be conducted to see if she could identify this party'. Mrs. Hurtig testified that on the day of the photographic identification, Detective Henry called and told her that he would like her to come to a show-up and that 'they think they have who did it'. The photographic identification took place on January 18, 1974. Mrs. Hurtig was shown eight photographs and identified the defendant as her assailant. An attorney representing the defendant was present.

When the defendant was arrested, he was in possession of a gun. Defendant claimed an alibi defense and put in evidence a written statement by his sister that he was at home until about 12:30 p.m. on the day in question.

The judge instructed the jury on the charged offense of assault with intent to commit murder, and also instructed on first and second-degree murder, premeditation, malice aforethought, and intent. He instructed, among other things, that the law implies intent from the use of a deadly weapon in a particular manner, a fact question for the jury to decide. The judge's charge covers the elements of felony murder, robbery, armed robbery and larceny. He instructed the jury that the commission of an act constitutes the intent. The judge told the jury that the possible verdicts were to be considered in order from the charged offense through the lesser included offenses and finally to innocent, and that they were not to consider the next lesser offense unless the facts did not support the higher offense.

At sentencing, the judge told the defendant that the assault 'occurred in the process of a hold-up', and that '(i)t is bad enough when you use a loaded revolver to hold somebody up, by when you start shooting at them attempting to murder the person, then I have no tolerance whatsoever'.

Defendant filed a timely claim of appeal, and now brings this appeal of right without having filed a motion for a new trial. On appeal, defendant raises various allegations of error.

Defendant first argues that the trial court erred by instructing that the law implied malice from an assault with a deadly weapon and that the law presumed a person committing such assault intended to take a life.

The instruction the court gave read in relevant part:

'The term malice is a wrongful act done intentionally without legal justification or excuse. The law implies an unjustified or unexcusable killing, the existence of that wicked disposition as the term or terms malice aforethought, when a man or woman assaults another with a deadly weapon in such a manner that the natural orderly use of such weapon, in such a manner to take a life. The law presumes that such a person committing the assault intended to take the life.'

No objection was raised to this instruction. Consequently, we will not reverse unless the charge as a whole demonstrates manifest injustice. GCR 1963, 516.2. People v. Branner, 53 Mich.App. 541, 544, 220 N.W.2d 183 (1974), People v. Paduchoski, 50 Mich.App. 434, 435, 213 N.W.2d 602 (1973). See People v. Green, 34 Mich.App. 149, 151, 190 N.W.2d 686 (1971).

We will, in light of People v. Martin, 392 Mich. 553, 560--562, 221 N.W.2d 336 (1974), however, look at this portion of the charge. That portion of the charge which instructs 'when a man or a woman assaults another with a deadly weapon in such a manner that the natural orderly use of such weapon, in such a manner to take a life' is clearly a fact question for the jury, it has not been taken away from them. Once they make the determination as to whether the deadly weapon was or was not used in such a manner to unjustifiably take life, then, if their findings on this question are affirmative, the legal conclusion of malice is permissible. Therefore, the charge here is distinguishable from the Martin case.

On review of the full instructional record, we do not find the court instructed so as to remove the element of intent As a matter of law, ¹ nor do we believe the court's instruction taken as a whole, demonstrates manifest injustice. People v. Branner, supra, 53 Mich.App. at 544, 220 N.W.2d 183.

Defendant alleges secondly that the trial court's instruction on intent in which he included references to premeditated murder, felony murder, second-degree murder, robbery and larceny was so unintelligible that reversal must be ordered. We do not find merit in this claim. No objection was raised, so we will not reverse unless manifest injustice appears. GCR 1963, 516.2. People v. Paduchoski, supra, 50 Mich.App. at 435, 213 N.W.2d 602.

Defendant next contends that reversible error occurred when the court instructed the jury as to the manner in which they should consider the relevant lesser included offenses. The court instructed in the following way:

'In this case, the following included offenses will be considered by the jury. If they--in the order in which they are to be considered, namely, after you have considered Assault with Intent to Murder, if you find that is proven well then, of course, you wouldn't go into the lesser offenses. If you found the facts as you find them to be do not support the charge as made and as defined by the Court, then you would move to the next included offense and that is Assault with Intent to do Great Bodily Harm less than the crime of Murder. You will make your make your (sic) consideration of that. If you find that to exist, then you stop there. If you find Assault with Intent to do Great Bodily Harm less than the crime of Murder and it is not proven by the facts as you found them to be, then you would move to the next included offense which would be Felonious Assault and the same procedure would be applied. If you found that to exist then you would stop at that point. That would be your verdict. If you found that not to exist then you move to the next included offense which would be Assault and Battery. You make a determination then if the facts fit that particular crime as that is defined for you and that would be your verdict. If you find your facts not to support that offense then your verdict would be not guilty.

'We have the following possible verdicts. Defendant is guilty of Assault with Intent to Commit Murder as charged or defendant is guilty of Assault to do Great Bodily Harm less than the crime of Murder or defendant is guilty of Felonious Assault or defendant is guilty of Assault...