People v. McCullough
| Citation | 81 Mich. 25,45 N.W. 515 |
| Court | Supreme Court of Michigan |
| Decision Date | 16 May 1890 |
| Parties | PEOPLE v. MCCULLOUGH et al. |
Appeal from circuit court, Jackson county; ERASTUS PECK, Judge.
Barkworth & Cobb, for appellant.
J A. Parkinson, Pros. Atty., for the People.
The respondent Dennis McCullough was informed against jointly with respondents John Wiley and James Murray, and, on a separate trial in the Jackson circuit court convicted of the crime of manslaughter. After the jury were impaneled, counsel for the defendant requested the prosecuting attorney to proceed with the trial of defendants Wiley and Murray, he having in his opening stated to the jury that Murray and Wiley were not accused of actual participation nor complicity with the acts of McCullough which it was claimed produced the death of the deceased. This was refused, and the prosecuting attorney asked leave to amend the information, which was granted. The information filed charged the three defendants, McCullough, Wiley, and Murray, that "on the 27th day of April, in the year one thousand eight hundred and eighty-nine, at the city of Jackson, in said Jackson county, then and there, with force and arms, feloniously did kill and slay one William Cunningham, contrary to the statute in such case," etc. By the amendment permitted there was inserted after the words "with force and arms" the following, "in and upon one William Cunningham there being, did make an assault and him, the said William Cunningham, did there and then beat, bruise, wound, and ill treat, and then and there, with force and arms aforesaid;" the remaining portion of the information being unchanged. It is urged that this amendment presented a new offense, for which the respondent had not had or waived examination. Manslaughter at the common law very generally consisted of acts of violence of such a nature that indictments for murder and manslaughter were interchangeable by the omission or retention of the allegation of malice, and of the technical names of the offense. In a vast majority of the cases a very simple allegation would be enough for the protection of the prisoner. But there may be manslaughter as well as murder committed where there is no assault, no battery, and no wound inflicted, and the information, in a case of this kind, must be varied to meet the less usual facts. Where the offense of manslaughter was involuntarily homicide, and involved no assault, but arose out of some negligence or fault from which death was a consequential result, and sometimes not a speedy one, the ordinary forms were not sufficient, and the information had to be framed upon the peculiar facts, and could convey no adequate information without this. 2 Bish. Crim. Proc. � 538; People v. Olmstead, 30 Mich. 438.
The original information, as filed in this case, charges a felonious killing, and under it the people would have had the right to introduce evidence showing that death resulted from an assault or wound inflicted, and is a good information for manslaughter at the common law. The mere fact that the words above quoted were inserted did not in any manner change the offense. It only made it more specific. Under the theory of the prosecution as to the manner in which the death was caused, the original information was sufficient. It was claimed on the trial that the deceased came to his death by a blow from a stone thrown by the respondent; and whether it was thrown recklessly, with no intent to produce death or great bodily harm, or with intent to hit the deceased, did not change the offense, as death caused by either mode might be charged as manslaughter,-one by recklessness and negligent acts, and the other by more direct violence. Death immediately ensued, and the theory of the prosecution is that it was caused by the respondent in throwing the stone, which struck the deceased and killed him. It was not error to allow the amendment. The record returned here does not purport to set out all the evidence. It appears, however, that the people introduced evidence tending to show that on the night of April 27, 1889, John Farrall, John Devine, Mather Eagon, and the respondents named in the information, Wiley, Murray, and McCullough, left the store of Mr. Lawrence Farrall, on East Main street, in the city of Jackson, about 11 o'clock at night, and went westerly until arriving at Perrine street, crossing East Main street at right angles. Murray and Wiley had been drinking to some extent, and were somewhat under the influence of liquor. Defendant McCullough had only drank two glasses of beer during the evening, and was apparently sober and all right. It does not appear by this record that either of the other parties had drank anything. As they proceeded along the street, they walked two and two, McCullough and Eagon in advance, Farrall and Devine next, and Murray and Wiley last. Just before arriving at the corner of East Main and Perrine streets, they met the deceased, a colored boy, who was going eastward on the walk on East Main street, when some one of the six parties-it is not shown who-said, "There's a coon," and after he had got along to Murray and Wiley they stopped him. He moved out into the gutter, and attempted to go by them. They moved along in front of him, going across Perrine street towards the east. When Murray, Wiley, and the deceased were some 35 or 40 feet from the corner where defendant McCullough and the other parties had stopped, McCullough picked up a stone from the ground, and threw it, or tossed it, as some of the witnesses say, over in the direction of Murray, Wiley, and the colored boy. This stone struck the ground in the middle of Main street; and some distance from the parties. McCullough picked up another stone, and threw or tossed that. Just after this stone was thrown, deceased was seen to fall. At this time Murray and Wiley were near him, and some of the parties, Murray, Wiley, or deceased, had their hands up, but none of the witnesses testify to having seen Murray or Wiley strike the deceased. The record returned here does not state how the deceased came to his death, except as above. There is nothing in the record showing whether any marks or bruises were found on the deceased, or whether any post mortem examination was had. Upon this branch in the case we are left entirely in the dark. It appears, however, that, as soon as deceased fell, Murray and Wiley walked rapidly away, or ran away, from the scene. Some of the neighbors there heard the noise, whether of Murray and Wiley or the deceased is not stated; but it does appear that Murray and Wiley were jumping around the deceased, apparently attempting to frighten him, and were making some noise, but just what was said by them or done is not made apparent. When the neighbors arrived on the scene, Murray and Wiley had gone away, and the defendant McCullough and the other parties had gone on their way home.
On the trial, the prosecution called the witnesses Farrall, Eagon and Devine, who were all present at the time of the affray. They also called Mr. and Mrs. Raby and other parties, who resided on the street, who testified to having heard the noise, and to seeing the parties disperse. The respondent McCullough was arrested Sunday by a police officer, and, after some conversation, was released, and rearrested on the Monday or Tuesday following, taken to the police...
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