People v. Jones
| Decision Date | 26 February 1973 |
| Docket Number | No. 1,Docket No. 13881,1 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ora T. JONES, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
George W. Schudlich, 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., Leonard Meyers, Asst. Pros. Atty., for plaintiff-appellee.
Before LESINSKI, C.J., and T. M. BURNS and O'HARA, * JJ.
This case has been before us on another occasion. The defendant's conviction for first degree murder was reversed and he was granted a new trial. People v. Jones, 32 Mich.App. 309, 188 N.W.2d 190 (1971). Mr. Jones was retried and convicted of murder in the second degree. Motions in the trial court for a new trial and judgment notwithstanding the verdict were denied. The defendant appeals by right.
The facts of the case are simple and are detailed in the prior opinion.
Defendant first cites as error the trial court's refusal to instruct on the lesser included offense of reckless use of firearms. Reckless use of firearms, M.C.L.A. § 752.861; M.S.A. § 28.436(21), is not a lesser included offense of second degree murder. This Court in People v. Simpson, 5 Mich.App. 479, 486, 146 N.W.2d 828 (1966), properly stated the rule on lesser included offenses to be as follows:
"If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater." See 4 Wharton's Criminal Law and Procedure, § 1888, pp. 753--754.
Murder may be accomplished by means other than the use of a firearm. See the statute regarding first-degree murder, M.C.L.A. § 750.316; M.S.A. § 28.548, and that governing second-degree murder, M.C.L.A. § 750.317; M.S.A. § 28.549. Murder in either of the two statutes cited may obviously be perpetrated by means other than a firearm. Use of a firearm is the Sine qua non of the lesser crime, and since this element is not necessary to prove the greater crime, it is not an included offense. The trial court properly refused to give the requested instruction.
Defendant also claims the court erred in refusing to give an instruction that intoxication was a defense to the crime charged. No request for the instruction was made and the court is not required to instruct in this matter Sua sponte. People v. Nawrocki, 376 Mich. 252, 136 N.W.2d 922 (1965); GCR 1963, 516.2.
The more serious claim of error is made in the instruction of the court that 'specific intent to kill' was a requisite finding for the jury in this case. This is not the law in Michigan. Roberts v. People, 19 Mich. 401, 415 (1870); Wellar v. People, 30 Mich. 16, 18 (1874). See, also, People v. Acosta, 16 Mich.App. 249, 167 N.W.2d 897 (1969). In this case the use of the words 'specific intent' by the trial court was error. However, the error favored the defendant. He was not entitled to a charge which, in fact, increased the burden of the prosecutor. We find that the error complained of was harmless. M.C.L.A. § 769.26; M.S.A. § 28.1096.
Finally, the defendant now objects to the conduct of the prosecutor during his closing argument. The prosecutor suggested that the accused 'intentionally killed her'. Here the prosecutor was arguing a reasonable inference from the testimony given rather than stating a personal belief in the defendant's guilt. Once again, no objection was registered with the court....
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People v. Jones
...second degree murder and convicted by a jury of that offense. That conviction was affirmed by the Court of Appeals. People v. Jones, 45 Mich.App. 373, 206 N.W.2d 453 (1973). We granted leave to consider the failure to instruct on lesser included Testimony indicated that defendant was sittin......
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People v. Garcia
...People v. Sharp, 9 Mich.App. 34, 155 N.W.2d 719 (1967) which holds to the contrary without cited authority. See also People v. Jones, 45 Mich.App. 373, 206 N.W.2d 453 (1973).4 This Court has held it neither was reversible error nor a violation of Ramsey for the trial judge in a bench trial ......
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People v. Knott
...offense.' Genesee Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 684, 194 N.W.2d 693, 699 (1972). See also, People v. Jones, 45 Mich.App. 373, 206 N.W.2d 453 (1973), lv. granted, 390 Mich. 793 As the Court pointed out in Jones, supra, reckless use of a firearm requires that a firearm b......
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State v. Smith, 61378
...1976). E. g., State v. Reynolds, 250 N.W.2d 434, 439 (Iowa 1977); State v. Leeman, 291 A.2d 709, 710 (Me.1972); People v. Jones, 45 Mich.App. 373, 206 N.W.2d 453, 454-55 (1973); State v. Butler, 44 Ohio App.2d 177, 337 N.E.2d 633, 638 (1974); Randolph v. State, 83 Wis.2d 630, 266 N.W.2d 334......