People v. Lee, s. 82

• Decision Date: 27 June 1952
• Docket Number: Nos. 82,83,s. 82
• Citation: 54 N.W.2d 305,334 Mich. 217
• Parties: PEOPLE v. LEE. PEOPLE v. BANNERMAN
• Court: Michigan Supreme Court

Page 305

54 N.W.2d 305

334 Mich. 217

PEOPLE v. LEE.

PEOPLE v. BANNERMAN

Nos. 82, 83.

Supreme Court of Michigan.

June 27, 1952.

Richard Nahabedian, Detroit, for defendant and appellant.

Lee C. McManus, Detroit, for defendant and appellant, John Bannerman.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Solicitor Gen., Gerald K. O'Brien, Prosecuting Atty., County of Wayne, Ralph Garber, Chief Asst. Prosecuting Atty., Garfield A. Nichols, Asst. Prosecuting Atty., Chief, Appellate Division, George W. Miller, Asst. Prosecuting Atty., Appellate Division, Detroit, for the People.

Before the Entire Bench.

REID, Justice.

On leave granted, defendant Ervin Lee appealed from his conviction and sentence pronounced December 4, 1936, for murder in the first degree. Defendant John Bannermen, who had also, on leave granted, appealed from his conviction and sentence for complicity in and guilt of the same offence, stipulated and agreed that his cause be consolidated with and governed by the same decision as may be rendered in the Lee case. One record but separate briefs for the two defendants have been filed and the two appeals are herein considered and disposed of.

Beginning on November 18, 1936, defendant Ervin Lee together with co-defendants Harvey Davis, John Bannerman, Roy Lorance and Charles Rouse, was tried by a jury in the recorder's court for the city of Detroit on an information charging (in part) that the said defendants:

'Heretofore, to-wit, on the 25th day of May A. D. 1936 at the said city of Detroit, in the county aforesaid feloniously, wilfully and of their malice aforethought, did kill and murder one Silas Coleman; contrary to the form of the statute in such case made and provided and against the peace and dignity of the people of the State of Michigan.'

On arraignment defendants refused to plead; a plea of not guilty was entered by court order.

All of the defendants were convicted of first degree murder by the jury and sentenced to life imprisonment by the court. In 1937 a motion for new trial was denied by the original trial judge. Approximately ten years later a motion for new trial was filed with the successor trial judge on September 10, 1947. An amended motion for new trial dated March 16, 1948 was filed by present counsel, heard, taken under advisement and denied on October 12, 1948.

On the trial before court and jury, the people's witness, Dayton Dean, testified as follows: In the week of May 25, 1935 [1936], one Dayton Dean (not a defendant), Harvey Davis and Charles Rouse conspired together to obtain a Negro to take out to the lake (Rush lake, Livingston county, Michigan) where Harvey Davis was going to have a party 'with some of the boys in his outfit'; he (Davis) wanted to get hold of a Negro 'to have a little target practice and have a little excitement out there.' On Wednesday or Thursday night of that week the witness Dayton Dean talked to defendant Charles Rouse and told him that Davis and some of the boys were going to have a party out at the lake and that they wanted to get hold of a Negro and take him out and 'they were going to kill him.' Rouse stated that he had 'just the man for you'; that the fellow was working for him and he had not been working very long; that he would be able to take him out all right; that Rouse would make the arrangements. This conversation took place at 19179 Irvington avenue at the city of Detroit. On Friday of the same week, Dean informed Davis of the arrangements with Rouse. Davis said he would be out to Rush lake if he was not at home when Dean went over to his home on Saturday night. On Saturday night, May 25, Charles Rouse picked up the witness, Dayton Dean, at 2764 Second avenue in the city of Detroit; the two drove over to the home of Harvey Davis, 775 Ferdinand, city of Detroit; Davis was not at home but the witness, Dayton Dean, knew the way to the lake; Rouse told the witness, Dayton Dean, about Silas Coleman, the Negro that he was to meet at 9:30 in the evening on the corner of Meyers road and Grand River in the city of Detroit; the two of them then drove to Meyers and Grand River where they found Silas Coleman waiting for them; Dayton Dean got in the back seat and Silas Coleman got in the front seat with Charles Rouse, and they proceeded out Grand River; Coleman said he had a couple of cases of beer at his landlady's place and he was going to have a party when he came back; Charles Rouse told Coleman that 'the contractor' [the identity of the contractor being otherwise undisclosed] went out to the lake, and that he [Coleman] would have to go out there to get his money and that he could go along with us.

The witness, Dayton Dean, further testified: Rouse, Dean and Silas Coleman, the deceased, went to Brighton, turned at the red light there and drove out to Rush lake to the cottage. Dean got out of the car, entered the kitchen and saw a long table at his right where Harvey Davis and his wife, Jack Bannerman and his wife, Lorance and his wife and Ervin Lee and his wife were seated at the table drinking. Dean told Harvey Davis he wanted to see him in the front room; Dean told Harvey Davis that 'we had the colored fellow out there in the car,' and explained to him that Charley (Rouse) had got him to the lake by telling him he was going to get his money; Davis called Lee, Lorance and Bannerman into the other room and told them, 'We've got the fellow we were talking about'; Davis told Dean to go out and tell Charley Rouse that this contractor had gone out on the lake fishing and they would lead the way; Davis told the boys (Lee, Lorance and Bannerman) to get their guns and see that they were loaded; they got their guns--38's and Dean had his gun, a .45 automatic, with him; Davis told Jack Bannerman to get into the car with Dean and that Lee and Davis would ride in Lorance's car; the defendants got into the two cars, drove back on the highway and went to the town of Pinckney, turned left and went up the first road, turned right and drove about a mile; turned right on another road and drove possibly a half a mile or mile, until they came to a bridge that 'crossed like a big marsh' and stopped with the rear wheels of Lorance's car on the bridge.

Dean further testified: Davis, Lorance and Lee got out of the car and walked back to the car occupied by Dean, Bannerman, Rouse and Silas Coleman; Bannerman and Dean got out of the car and walked over on the opposite side of the bridge where Davis, Lee and Lorance were; Davis said, 'Well, let's go and get him'; as they started back across the bridge, Silas Coleman came around the back of the car facing them and Davis fired first; then Lorance, Lee and Bannerman fired; the Negro attempted to say something, gave a half-right-about face and ran down the road in the direction the cars were facing; the defendants began shooting after him as he ran; he (Coleman) gave a left-face and jumped in the swamp; they emptied their guns after him when he jumped in the swamp; they then drove back to the cottage, had a drink and then Charley Rouse and the witness, Dayton Dean, drove back to Detroit; on the way back Charles Rouse gave Dayton Dean ten dollars of Silas Coleman's money and told him to divide it up among the boys; there was eight dollars for Charles Rouse; Monday morning when Dean went to work he told Davis that he had the money and that Davis said not to say anything to the other fellows about it, so Dean gave him five dollars and kept five dollars.

The defendant John Bannerman claims he was not in the city of Detroit and county of Wayne at the time the alleged murder was committed and he claims he was not in the jurisdiction of the recorder's court for the city of Detroit at the time the alleged plan to commit the murder was arranged.

The court charged the jury that the defendant John Bannerman could be found guilty of murder in the first degree if he committed an overt act or participated in the plan within the jurisdiction of the recorder's court. The trial court charged the jury with regard to the included offenses of murder in the second degree or manslaughter as follows:

'I, therefore, charge you that you cannot find the defendants guilty of either one of the lesser offenses but that your verdict must be either one of guilty of murder in the first degree or not guilty.'

The prosecution claims that there was a conspiracy to commit the murder, and that an act necessary to and a step toward its accomplishment, was committed in the city of Detroit; that defendants were conspirators in the conspiracy though not present in the city of Detroit when the act aforesaid was committed in the city of Detroit, which act consisted of inveigling the murdered man, Coleman, into an automobile and conveying him on the road toward the place where he was afterwards murdered, all within purview of the conspiracy.

The first question we are to consider is whether the recorder's court of the city of Detroit, acquired jurisdiction of the murder, if the prosecution's aforesaid claim has been proven to the satisfaction of the jury.

Our statute, C.L. 1948, § 767.39, Stat.Ann. § 289.79, provides:

'Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures,...