People v. McBride, Docket No. 8692
| Citation | 30 Mich.App. 201,186 N.W.2d 70 |
| Decision Date | 27 January 1971 |
| Docket Number | No. 3,Docket No. 8692,3 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James McBRIDE, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Thomas J. O'Toole, O'Toole & Johnson, Muskegon, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Paul M. Ladas, Pros. Atty., for plaintiff-appellee.
Before HOLBROOK, P.J., and McGREGOR and T. M. BURNS, JJ.
Defendant was charged with murder in the first degree and, in a non-jury decision, convicted of second-degree murder. C.L.1948, § 750.317 (Stat.Ann.1954 Rev. § 28.549). The testimony showed that on July 4, 1969, sometime after 10:30 p.m., defendant and his wife started arguing about some money which he had requested from her, so he could go and take his 'other woman' out and which she refused to give him. Her refusal angered him and he went into the bedroom and returned with a pistol which discharged, ultimately killing his wife.
On appeal, defendant contends that he and his wife were tussling and that the shooting was accidental and that, therefore, the element of malice and intent to kill were not present, which elements would be necessary to warrant a finding of second-degree murder.
The element of malice in the crime of murder has recently been defined in People v. Hansen (1962), 368 Mich. 344, 350, 118 N.W.2d 422, 425:
It is axiomatic that the law presumes every person to intend the usual consequences which accompany the use of the means employed in the manner employed. People v. Hodges (1917), 196 Mich. 546, 551, 162 N.W. 966, later cited with approval in People v. Medley (1954), 339 Mich. 486, 64 N.W.2d 708. Here, the testimony of a ballistics expert tended to refute defendant's contention that they were engaged in 'tussling' at the time of the shooting. The ballistics expert testified that the gun had to be at a distance of 18 inches or more when fired; furthermore, testimony concerning the angle of the bullet passing through the body indicated that defendant must have pushed his wife away prior to...
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