People v. Jones, Docket No. 69718

• Decision Date: 03 December 1984
• Docket Number: D,No. 6,Docket No. 69718,6
• Citation: 358 N.W.2d 837,419 Mich. 577
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Arthur Woodie JONES, Defendant-Appellee. ec. Term 1983. Calendar
• Court: Michigan Supreme Court

Page 837

358 N.W.2d 837

419 Mich. 577

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Arthur Woodie JONES, Defendant-Appellee.

Docket No. 69718, Dec. Term 1983.

Calendar No. 6.

Supreme Court of Michigan.

Argued Dec. 6, 1983.

Decided Dec. 3, 1984.

William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., Janice M. Joyce Bartee, Asst. Pros. Atty., Detroit, for plaintiff-appellant.

State Appellate Defender Office by Chari K. Grove, Asst. Appellate Defender, Detroit, for defendant-appellee.

KAVANAGH, Justice.

Defendant was charged with first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), in the fatal shooting of William Stanford. The jury returned a verdict of guilty of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, and of felony-firearm.

The Court of Appeals reversed, People v. Jones, 115 Mich.App. 543, 321 N.W.2d 723 (1982), holding that the trial judge had erred in failing to instruct the jury on involuntary manslaughter and that reversal was required.

We affirm.

In this case, as in People v. Ora Jones, 395 Mich. 379, 236 N.W.2d 461 (1975), we are satisfied that the instructions did not fully and fairly present the case to the jury in an understandable manner.

The prosecutor would distinguish this case from Ora Jones on the basis that the theory of the defense in that case was accident whereas here the defendant did not claim accident.

It is true that in Ora Jones the defendant testified that the gun accidentally discharged when his arm was jostled, whereas the defendant in this case produced no witnesses. We do not think such fact or a fair reading of the testimony which was adduced establishes the prosecutor's assertion that the defendant did not claim accident.

Perhaps the most persuasive evidence that defendant did this shooting at all was the testimony of his girlfriend that in telling her about the shooting, "He just kept mumbling, 'It was an accident. God knows, it was an accident. It just went off' ".

This evidence was offered and admitted as a party admission and is accordingly some evidence that the shooting was unintentional.

In his closing argument the prosecutor observed: "In raising the whole spectrum of accident, brother counsel wants to give the police so much credit on the one hand".

Although defense counsel argued for an all-or-nothing verdict on the first-degree murder charge instead of arguing for accidental discharge of the weapon, the question of accident was properly within the jury's contemplation.

The record in this case does not contain any written requests for instructions, and the transcript does not show that any oral requests were made. The judge's instruction sua sponte on manslaughter is inexplicable. We found no evidence in the record which would support a conclusion that the killing was done in such circumstances of passion or provocation as would support a verdict of voluntary manslaughter.

We are satisfied that the Court of Appeals was correct in ordering a new trial for the reason we stated in Ora Jones, p. 393, 236 N.W.2d 461:

"The prosecutor claimed intentional shooting, the defendant maintained it was accidental. The jury was not obliged to accept either theory but could have concluded that the killing was the result of criminal negligence, e.g., involuntary manslaughter. Had the judge not instructed at all on manslaughter, there would be no reversible error, because no request for instruction on manslaughter was made. See People v. Henry, 395 Mich 367; 236 NW2d 489 (1975).

"Having undertaken to do so, however, it was reversible error to give a misleading...