People v. Kelley

• Decision Date: 06 February 1970
• Docket Number: No. 2,Docket No. 4486,2
• Citation: 176 N.W.2d 435,21 Mich.App. 612
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Dean KELLEY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 435

176 N.W.2d 435

21 Mich.App. 612

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Dean KELLEY, Defendant-Appellant.

Docket No. 4486.

Court of Appeals of Michigan, Division No. 2.

Feb. 6, 1970.

Released for Publication May 1, 1970.

Leave to Appeal Denied June 16, 1970.

John F. Sopt, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Solicitor Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and LEVIN and BRONSON, JJ.

LEVIN, Judge.

The defendant appeals his conviction of armed robbery. ¹ We reverse because of instructional error concerning the intoxication defense.

The people's evidence showed that the defendant and George Moore entered a drug store at 8:30 p.m. and held it up using revolvers.

At the trial the defendant testified that for several days before the robbery he had been drinking heavily. He claimed that after drinking 20 to 25 bottles of beer during the morning of the day the crime was committed he drove his car to Moore's house to buy some insulation from him. After purchasing the insulation the defendant and Moore made 2 automobile trips to the defendant's house transporting the insulation. The defendant further testified that he continued to drink throughout the morning; he said that he and Moore consumed some 24 bottles of beer transporting the first load of insulation, and that additional beer was consumed delivering the second load. The defendant said he then took a couple of benzedrine capsules to 'appease' Moore. The defendant claimed that he had no recollection of anything that occurred that day after taking the benzedrine owing to an alcoholic blackout. ² Thus, he said, he could not recall his participation in the robbery.

The defendant also provided an extensive history of alcoholism beginning at the age of 15, reflected in military service and civilian criminal records. In 1956 he was convicted of armed robbery; he was intoxicated when that offense was committed. He said, however, that he had an awareness of his actions at that time which he did not have at the time the currently charged robbery was committed.

He stated he could recall only one previous incident of overtly antisocial behavior after blacking out due to intoxication, when, as a soldier and while grossly intoxicated, he was removed from a machine gun behind the lines and struck the company commander in a fight. The defendant said he had experienced many blackouts of an uneventful nature. He had previously committed at least one crime while sober.

The defense in this case was that by reason of intoxication the defendant was not aware of, and, therefore, was not criminally responsible for, his actions at the time the crime was committed.

At common law, a trespass was not criminal unless the actor entertained that culpable state of mind termed Mens rea. ³ This element of every common law crime is sometimes referred to as general intent. The universally accepted rule in this country is that general intent cannot be negatived by evidence that the actor was intoxicated at the time the crime was committed. This doctrine is expressed in the oft-repeated maxim that 'voluntary intoxication is no excuse for crime.' ⁴

The rigor of this doctrine has been relaxed where the people must prove that the actor entertained a specific intent in addition to general intent. ⁵ Thus, although intoxication is not a defense where only general intent needs to be shown, E.g., where the crime charged is involuntary manslaughter ⁶ or statutory rape, ⁷ the Michigan Supreme Court has held that it can be shown to negative the requisite specific intent where the crime charged is assault with intent to murder, ⁸ assault with intent to rape ⁹ and assault with intent to do great bodily harm less than the crime of murder. ¹⁰ And since larceny 'does not consist in the wrongful taking of the property, for that might be a mere trespass; but it consists in the wrongful taking with felonious intent,' intoxication can be shown to negative that felonious intent. ¹¹ Following fundamentally the same analysis, the Court has also held that burglary and breaking and entering are specific intent crimes. ¹²

In this case the prosecutor concedes, the trial judge charged the jury and we agree that armed robbery is a specific intent crime. Robbery is larceny committed by assault or putting in fear ¹³ and, as we have already seen, larceny is a specific intent crime.

The intoxication defense was first discussed by the Michigan Supreme Court in People v. Garbutt (1868), 17 Mich. 9, ¹⁴ Garbutt was convicted of murder. The Court held that the trial judge had correctly refused to charge the jury that they must acquit the defendant if they believed that he was intoxicated to such an extent that he was not conscious of what he was doing at the time the offense was committed. The Court stated that to recognize intoxication as a defense (p. 19):

'would be a most alarming (doctrine) to admit in the criminal jurisprudence of the country, and we think the recorder was right in rejecting it. A man who voluntarily puts himself in condition to have no control of his actions, must be held to intend the consequences. The safety of the community requires this rule. Intoxication is so easily counter-feited, and when real it is so often resorted to as a means of nerving the person up to the commission of some desperate act, and is withal so inexcusable in itself, that the law has never recognized it as an excuse for crime.' (Emphasis supplied.)

Two years later, in Roberts v. People (1870), 19 Mich. 401, the Michigan Supreme Court for the first time drew the distinction between general and specific intent. Roberts was convicted of assault with intent to murder. The Court referred to Garbutt and stated that the consequence which a man who voluntarily becomes intoxicated is held, as a matter of law, to intend is (pp. 416, 417) 'the crime actually committed; and not in this case the intent charged, if the defendant was at the time incapable of entertaining it, and did not in fact entertain it.'

In People v. Walker (1878), 38 Mich. 156, the defendant's conviction of larceny was reversed because the trial judge refused to charge that intoxication could be a defense. The Supreme Court declared (p. 158):

'While it is true that drunkenness cannot excuse crime, it is equally true that when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist. In larceny the crime does not consist in the wrongful taking of the property, for that might be a mere trespass; but it consists in the wrongful taking with felonious intent; and if the defendant, for any reason whatever, indulged no such intent, the crime cannot have been committed. This was fully explained by Mr. Justice Christiancy in Roberts v. People (1870), 19 Mich. 401, and is familiar law.'

In People v. Guillett (1955), 342 Mich. 1, 69 N.W.2d 140, Guillett's conviction of assault with intent to commit rape was reversed by the Michigan Supreme Court because the trial judge gave a charge modeled on Garbutt and not on Roberts. The Court observed (p. 6, 69 N.W.2d p. 143):

'It is important in this decision to emphasize that intoxication may only negative the existence of Specific intent. Examination of the cases reveals that where the rule was applied, it was done so in cases where the crime charged also involved a specific intent.' (Emphasis by the Court.)

In the case now before us the trial judge charged the jury:

'Now concerning intoxication and intent, I instruct you that an inability to remember as the result of amnesia, whether it was caused by alcohol or otherwise, is not a defense to a crime; that is to say, a person does not have to remember. A person who voluntarily puts himself in a state of intoxication must be held to have intended the consequences which actually ensued the crime actually committed. However, the crime of armed robbery includes the intent to steal and to take money or other property from the person, or the property of another without any claim or color of right. And if the respondent's mental faculties were so far overcome by intoxication that he wasn't conscious of what he was doing, or if he did not know why he was doing it, then he could not have such an intent; that would mean, he would be too drunk to have such an intent.

'However, I also instruct you that if the respondent had knowledge that when he drinks he may lose his faculties, and without control over his actions commit a crime, then such prior knowledge of criminal propensity would be a basis for your finding that he intended to do what he did.'

The first paragraph of the judge's instruction is a correct statement of the law. ¹⁵ A person who voluntarily puts himself in a state of intoxication is deemed to intend the consequences which actually ensue, the crime actually committed, in this case armed robbery. Or, to state it differently, as a matter of law, voluntary intoxication may not be shown for the purpose of establishing that the defendant did not entertain the general intent (Mens rea or culpability) necessary to commit the crime.

Since armed robbery is, as we have previously stated, a crime of specific intent, the trial judge properly went on to charge that if the defendant's mental faculties were so far overcome by intoxication that he was not conscious of what he was doing, or he did not know what he was doing, ¹⁶ then he could not entertain that specific intent and, therefore, in the words of the Walker Court, there being 'no such intent, the crime cannot have been committed.'

The last sentence of this portion of the instructions, Viz:

'However, I also instruct you that if the respondent had knowledge that when he drinks he may lose his faculties, and without control over his actions commit a crime, then such prior knowledge of...