People v. Jordan

• Citation: 51 Mich.App. 710,216 N.W.2d 71
• Decision Date: 05 March 1974
• Docket Number: Docket No. 15881--2,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carl JORDAN, a/k/a Eugene Carl Jordan, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 71

216 N.W.2d 71

51 Mich.App. 710

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carl JORDAN, a/k/a Eugene Carl Jordan, Defendant-Appellant.

Docket No. 15881--2.

Court of Appeals of Michigan, Division No. 1.

March 5, 1974.

Released for Publication April 3, 1974.

Theodore B. Sallen, Detroit, Carl Ziemba, Detroit, of counsel, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and FITZGERALD and CARLAND,* JJ.

FITZGERALD, Judge.

Defendant was tried on two charges of assault with intent to commit murder ¹ which were consolidated for trial and appeal. A jury returned verdicts of guilty of the lesser included offense of assault with intent to do great bodily harm less than murder ² and felonious assault. ³ Concurrent sentences of 5 to 10 years and 2 to 4 years were imposed respectively granting defendant credit for the 176 days already served in prison.

This case arises out of a shooting incident occurring on November 16, 1971. Defendant went to the home of Phyllis Allen, a girl he had previously dated. He was met by Miss Allen's mother who advised him that Phyllis was not home. Defendant then shot John Butler, Phyllis' father, in the jaw and wounded Phyllis' sister, Dorothy, in the arm.

Police officer Fred Bedient went to the Butler home with his partner and attempted to apprehend the defendant peacefully. Officer Bedient met with resistance and was twice fired upon by defendant. At this point, Officer Bedient shot and wounded defendant, subsequently taking him into custody. The two separate counts of assault with intent to commit murder involved defendant's shooting of John Butler and Officer Bedient. Defendant entered defenses of intoxication or, in the alternative, insanity.

Two issues are raised on appeal, the first of which is without merit. Defendant initially argues that the trial court improperly instructed the jury as to the defense of insanity. The use of the term 'irresistible impulse' by the court was challenged by defendant as not being in conformity with the Michigan standard of insanity because it was unduly restrictive. By improperly narrowing the standard by which the jury could have found insanity, the defendant was prejudiced notwithstanding the absence of defense counsel's objection. We have reviewed the court's insanity instructions in their entirety and find the elements of the insanity defense as set out in People v. Martin, 386 Mich. 407, 192 N.W.2d 215 (1971), were adequately presented. The jury was informed that the duration of the defendant's insanity was not controlling. Defendant's claim that temporary insanity only was considered is untenable. Since the instructions were almost verbatim to those requested by defendant's counsel, and no objection was made to the charge, any resulting error is harmless. People v. Ingram, 36 Mich.App. 160, 193 N.W.2d 342 (1971).

The second issue is whether the trial court correctly instructed the jury as to the proper consideration to be given evidence of defendant's conduct in determining whether the requisite intent existed. The trial judge instructed the jury of the presumption that one intends the natural and probable consequences of his acts. The presumption that intent can be proved solely from the acts of defendant erroneously casts the burden of proving the absence of such intent upon the defendant. This shift of the burden of proof is a denial of defendant's right to be proved guilty beyond a reasonable doubt.

The people deny that this presumption was created, contending that the jury was merely permitted to infer such intent from defendant's acts. The burden of proof did not shift since the jury was not required to presume intent from defendant's acts, thus permitting them to conclude the absence of the requisite intent. Further, defendant's position is untenable considering that no objection to the instruction was made at trial and no miscarriage of justice resulted.

A conclusive presumption that intent must be found from acts of a defendant is not permitted. This would effectively remove the requisite intent as an element of the crime in direct violation of the criminal statute. In Morissette v. United States, 342 U.S. 246, 275, 72 S.Ct. 240, 256, 96 L.Ed. 288, 306--307 (1952), the Court stated:

'A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven part an artificial and fictional effect. * * * (T)his presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime.' (Footnote omitted.)

In Mann v. United States, 319 F.2d 404 (CA 5, 1963), the Court's instruction that a person is presumed to intend the natural consequences of his own acts was prefaced by the words 'unless the contrary appears from the evidence'. On appeal, the Court found this to improperly shift the burden of proof to the defendant, stating at 409.

'If an inference from a fact or set of facts must be overcome with opposing evidence, then the inference becomes a presumption and places a burden on the accused to overcome that presumption. Such a burden is especially harmful when a person is required to overcome a presumption as to anything subjective, such as intent or wilfulness, and a barrier almost impossible to hurdle results.'

Michigan Courts have recently stated that specific intent cannot be presumed as a matter of law from specific acts of the defendant. People v. Williams No. 2, 45 Mich.App. 630, 207 N.W.2d 180 (1973); People v. Pepper, 389 Mich. 317, 206 N.W.2d 439 (1973). Justice Levin, dissenting in People v. Pepper, 36 Mich.App. 437, 194 N.W.2d 67 (1971), which was ultimately reversed by the Supreme Court, points out the dangers of failing to properly distinguish between mandatory presumptions and permissible inferences which may be drawn by the jury. In People v. Morrin, 31 Mich.App. 301, 187 N.W.2d 434 (1971), this Court discussed at length the methods of determining malice, a form of intent, from defendant's conduct. There, the presumption of innocence applied to the element of malice as well as to the remaining elements of murder. Consequently, malice aforethought was held to be a permissible inference and not a mandatory presumption.

The trial court included the following remarks in its charge to the jury:

'The intent may be presumed from the doing of a wrongful, fraudulent or illegal act, but this inference or presumption is not necessarily conclusive. The law presumes that every man intends a legitimate consequence of his own act * * *.

'When a specific intent is necessary, it need not necessarily be shown by direct or positive evidence. But it may be inferred from the circumstances. The principle that a man is presumed to have intended the natural and probable consequence of his act applies.

'An alternative defense is permitted in the law and it is for you to decide which, if any, defense to accept. In any case, there is a presumption at the outset that the defendant intends the consequences of his acts and/or as seen (is sane?) but as seen (?) as evidences offered by defendant which tends to overthrow that presumption. It then rests upon the prosecution to convince you jurors beyond a reasonable doubt that the defendant, in fact, was able to entertain the specific intent to murder, or that he was seen (sane), when any credible evidence,...