People v. Johnson, Docket No. 78-1172

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: Before DANHOF; CARROLL
• Citation: 287 N.W.2d 311,93 Mich.App. 667
• Docket Number: Docket No. 78-1172
• Decision Date: 19 November 1979
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ernest JOHNSON, III, a/k/a Sonny, Defendant-Appellant. 93 Mich.App. 667, 287 N.W.2d 311

Page 311

287 N.W.2d 311 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Ernest JOHNSON, III, a/k/a Sonny, Defendant-Appellant. Docket No. 78-1172.
93 Mich.App. 667, 287 N.W.2d 311 Court of Appeals of Michigan. Nov. 19, 1979.
Released for Publication Jan. 29, 1980.

Page 313

[93 MICHAPP 669] Ronald Weitzman, Madison Heights, for defendant-appellant.

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

Before DANHOF, C. J., and V. J. BRENNAN and CARROLL, ^* JJ.

CARROLL, Judge.

Defendant was charged with the murder of Alma Story, whom he had been living with. On November 8, 1977, defendant was found guilty by a jury of first-degree murder, contrary to M.C.L. § 750.316; M.S.A. § 28.548. He was sentenced to life imprisonment. Defendant appeals as of right.

On appeal defendant raises three issues for our consideration. Initially, he argues that the trial court improperly instructed the jury as to the elements of first-degree murder. However, defendant failed to object to the instructions at trial. It is the general rule that an erroneous instruction, absent a request by counsel, is not grounds for reversal except upon a showing of manifest injustice. Hunt v. Deming, 375 Mich. 581, 134 N.W.2d 662 (1965). However, where an instruction pertains to the nature of the offense, the trial court has an [93 MICHAPP 670] obligation to give a correct instruction whether or not a request is made. People v. Miller, 35 Mich.App. 627, 192 N.W.2d 517 (1971). In order to determine whether error occurred, jury instructions must be read and assessed as a whole. People v. Wilder, 82 Mich. 358, 266 N.W.2d 847 (1978).

Defendant's complaint centers upon the following instruction:

"Murder of either degree is the killing of one person by another with malice. Malice is a term with special meaning in the law. Malice means that the Defendant intended to kill or that he knowingly created a very high risk of death with knowledge that it probably would result in death, and that he did so under circumstances which did not justify, excuse or lessen the crime.

"First Degree and Second Degree Murder are the same crime, except that in First Degree Murder there are the additional elements of premeditation and deliberation; that is, the Defendant has premeditated and deliberated his intent to kill.

"You will be first instructed on Murder of the Second Degree. Keep in mind that all of the elements of Second Degree Murder are necessary to prove First Degree Murder.

"Fourth, for murder you must find that the Defendant consciously and knowingly performed the act which caused death. The Defendant must have either intended to kill; that is, he must have done the act intending that it result in death or in great and serious bodily injury, Or he must have knowingly created a very high risk of death with the knowledge that it probably would cause death." (Emphasis added).

It is clear that first-degree murder, other than felony murder, is a specific intent crime requiring an intention to take a life. People v. Garcia, 398 Mich. 250, 247 N.W.2d 547 (1976). As this Court [93 MICHAPP 671] remarked in People v. Milton, 81 Mich.App. 515, 518, 265 N.W.2d 397, 399 (1978):

"Mere conscious indifference to the likelihood of death as a result of a person's intentional act is not enough; to commit first-degree murder, a person must act with the purpose of causing death."

Defendant relies heavily on Milton in arguing for reversal on this issue. It is not apparent from our reading of Milton whether the trial court in that case instructed the jury on specific intent. However, it is clear that the trial court in Milton failed to instruct on the elements of premeditation

Page 314

and deliberation. The court's failure to define these elements independently of malice had the effect of abolishing the difference between first-degree murder and second-degree murder. Id.

In the instant case, the trial court, apart from its instruction on malice, also defined premeditation and deliberation. It prefaced its remarks in this regard with the following:

"For Murder of the First Degree, the Prosecution must prove beyond a reasonable doubt the four elements of Second Degree Murder which have been described to you. In addition, you must prove beyond a reasonable doubt the fifth element, which raises the crime to First Degree Murder; that is, that the death was the wilful result of a premeditated, deliberate intent to kill."

In addition, the court mentioned that wilful means intentional and that "(f)or First Degree Murder, there must be such a lapse of time as would give the mind time to Think about the purpose and intent of the killing ". (Emphasis supplied). Finally the court noted that "(t)here can be no crime of Murder in the First Degree under our law Where [93 MICHAPP 672] there is no intent to kill ". (Emphasis supplied). Moreover, the court instructed the jury as to specific intent. All of these instructions, it is worth noting, appear to have been taken nearly verbatim from the Michigan Criminal Jury Instructions....