People v. Jones, 20

• Citation: 236 N.W.2d 461,395 Mich. 379
• Decision Date: 18 December 1975
• Docket Number: No. 20,20
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ora T. JONES, Defendant-Appellant.
• Court: Supreme Court of Michigan

Page 461

236 N.W.2d 461

395 Mich. 379

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ora T. JONES, Defendant-Appellant.

No. 20.

Supreme Court of Michigan.

Dec. 18, 1975.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, App. Dept., Robert A. Reuther, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Joseph B. Szeremet, Asst. State App. Defender, Bruce Krueger, Research Asst. Defender, Detroit, for defendant-appellant.

T. G. KAVANAGH, Chief Justice.

Defendant's initial conviction of first-degree murder was reversed by the Michigan Court of Appeals. Upon retrial, defendant was charged with 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 offenses.

Testimony indicated that defendant was sitting in the living room of an apartment he shared with the decedent, Phyllis Grace. A female friend of the decedent came to visit her and, on the decedent's invitation, the two women left the living room and entered the kitchen where they carried on a conversation. After a few minutes, while they were standing in the kitchen, defendant rose from the couch, went to a closet, and removed a shotgun he had stored there. He then proceeded to the kitchen door where he aimed the weapon at the decedent and the gun discharged, fatally wounding the decedent.

Two police officers called to the scene testified that upon their entering the apartment the defendant made a statement to the effect that 'I have just done something I should have done a long time ago.' This statement was ruled admissible by the trial judge subsequent to a Walker type hearing held during the course of the trial. The defendant denied making such a statement.

The defendant testified that he took the shotgun from a closet and approached the kitchen with the intention of frightening the female companion from the apartment.

He testified that he did not aim the weapon intentionally, that he did not know the weapon was loaded, and that the weapon accidentally discharged when he was bumped by the fleeing female companion.

During both his opening statement and closing argument, defense counsel asserted the shooting was accidental. During his closing argument he also alluded to the fact that the jury might find the defendant guilty of manslaughter rather than murder in the second degree.

The court instructed the jury on murder in the second degree and voluntary manslaughter. Defendant did not object to these instructions.

Subsequent to the giving of these instructions and before the jury retired to consider its verdict, defense counsel requested the trial judge to instruct the jury on the statutory offense of killing or injuring a person by careless, reckless or negligent discharge of a firearm, ¹ claiming this was a lesser included offense of second degree murder. The trial judge ruled defendant was not entitled to such a charge and refused the request.

Our disposition of this appeal requires only consideration of the claimed errors in instructing the jury.

We conclude that the trial court erred in the following respects:

1. In refusing to give the requested instruction on the statutory offense of careless discharge of a firearm. M.C.L.A. § 752.861; M.S.A. § 28.436(21).

2. In giving a misleading instruction on manslaughter.

3. In failing to instruct adequately that an accidental homicide is not murder or manslaughter.

We conclude that the trial court did not commit reversible error in failing to instruct on a statutory manslaughter offense, M.C.L.A. § 750.329; M.S.A. § 28.561, not requested by defendant.

I

In People v. Henry, Mich., 236 N.W.2d 489 (1975), we held that a trial court is not ordinarily required to instruct on lesser included offenses unless request for those instructions is properly made.

In the case at bar, defense counsel requested instructions on the offense of reckless use of firearms causing death. The trial judge refused the request, stating that reckless use of firearms was not a lesser included offense of second degree murder.

The law of lesser included offenses in Michigan has not been clear or consistent:

'The case law is not in agreement as to either the elements of the various crimes or the lesser offenses, and there tends to be stratification of law along the lines of individual crimes, so that in one instance, instructions on lesser offenses are routinely given Sua sponte, whereas in other crimes they are rarely if ever given Sua sponte, although both crimes are equally susceptible to lesser offenses.' Koenig, The Many-Headed Hydra Of Lesser Included Offenses: A Herculean Task for the Michigan Courts, 1 D.C.L.Rev. 41, 42 fns. 3, 4 (1975).

The common law definition of lesser included offenses is that the lesser must be such that it is impossible to commit the greater without first having committed the lesser. 4 Wharton, Criminal Law and Procedure, (12th ed.) § 1799. This definition includes only Necessarily included lesser offenses. This definition, however, is generally conceded to be unduly restrictive, and thus most jurisdictions, including Michigan, have statutes that are broadly construed to permit conviction of 'cognate' or allied offenses of the same nature, under a sufficient charge. ² These lesser offenses are related and hence 'cognate' in the sense that they share several elements, and are of the same class or category, but may contain some elements not found in the higher offense.

'The practical differences become evident when one considers an indictment containing allegations of facts which are extraneous to the basic offense on which defendant is to be tried, but which Are essential elements of some lesser 'cognate' offense.' Comment, Jury Instructions on Lesser Included Offenses, 57 N.W.U.L.Rev. 62, 63 (1962).

It is elementary that a defendant may not be convicted of a crime with which he was not charged. DeJonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937). The reason is apparent: The Sixth and Fourteenth Amendments give a defendant the right to know the nature and cause of the accusation against him. ³

Thus, while there is comparatively little difficulty with the necessarily included lesser offenses, the cognate lesser included offenses are somewhat more difficult to ascertain, conceptually as well as practically. One guide to the minimal due process notice requirements in this area was set out in Paterno v. Lyons, 334 U.S. 314, 68 S.Ct. 1044, 92 L.Ed. 1409 (1948), wherein the Court said that due process notice requirements are met if the greater charged crime and the lesser included offense are of the same or of an overlapping nature. ⁴

While the distinction between cognate and necessarily included lesser offenses is helpful in analyzing the subject of lesser included offenses, the distinction has largely disappeared.

If the lesser offense is of the same class or category, or closely related to the originally charged offense, so as to provide fair notice to the defendant that he will be required to defend against it, the lesser offense is or may be included within the greater.

The failure to advert to the nature of the 'cognate' lesser included offense has caused confusion. The fact that a lesser offense, within the same category as the greater charged offense, has an element not included within the greater does Not preclude the lesser from being included within the greater. This rule was enunciated in Michigan in 1861 in People v. McDonald, 9 Mich. 150 (1861), where the Court stated that a defendant indicted for assault with intent to commit murder could be convicted of 'an assault, or assault and battery only. Upon a charge for felonious assault, the lesser offense of an assault, or an assault and battery is, under our statutes, included.' 9 Mich. at 153. ⁵ Of course under a strict 'necessarily included' test, an assault and battery offense would not be included, as battery is an element not required for the higher assault with intent to murder offense. Thus, although we recognized the broader definition in 1861, we have not followed it with consistency, with the result that different theoretical definitions have been followed which have led to different results.

While it is true that reckless discharge of a firearm causing death is not Always a lesser included offense of second degree murder, E.g. if the killing were done by stabbing, it May be such a lesser included offense, as it was in the case at bar.

Analysis of the offense charged, [second degree murder] and the lesser offense on which instruction was requested, (careless, reckless, or negligent discharge of a firearm causing death) demonstrates the overlapping of certain elements and common statutory purpose. The common purpose is the protection against killing or injury to the person. The overlapping elements relate first to a 'reckless' state of mind concerning damage to human life and secondly to an activity or intended activity to kill or injure a person. Both of these overlapping elements relate to the common purpose of the statutes, I.e. to protect against killing or injury to the person. The offenses are cognate; the elements shared by the two offenses coincide in the harm to the societal interest to be protected.

The duty of the trial judge to instruct on lesser included offenses is determined by the evidence. People v. Phillips, 385 Mich. 30, 187 N.W.2d 211 (1971). If evidence has been presented which would support a conviction of a lesser included offense, refusal to give a requested instruction is reversible error. Id. at 36, 187 N.W.2d 211. People v. Hamilton, 76 Mich. 212, 42 N.W. 1131 (1889).

If the lesser offense is one that is necessarily included within the greater, the evidence will always support the lesser if it supports the greater.

In the area of 'cognate' lesser...