People v. McDonald

• Decision Date: 24 June 1980
• Docket Number: Docket No. 62077,No. 1,1
• Citation: 293 N.W.2d 588,409 Mich. 110
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lee Arthur McDONALD, Defendant-Appellant. Calendar409 Mich. 110, 293 N.W.2d 588
• Court: Michigan Supreme Court

Page 588

293 N.W.2d 588

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lee Arthur McDONALD, Defendant-Appellant.

Docket No. 62077.

Calendar No. 1.

409 Mich. 110, 293 N.W.2d 588

Supreme Court of Michigan.

Argued Nov. 13, 1979.

Decided June 24, 1980.

William L. Cahalan, Pros. Atty., County of Wayne, Edward Reilly Wilson, Principal Atty., Appeals, Asst. Pros. Atty., Timothy A. Baughman, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Carl Ziemba, Detroit, for defendant-appellant.

MOODY, Judge.

On June 27, 1976, Virginia Marie Kania was found dead of multiple stab wounds. The evidence indicated that the victim was babysitting at the home of Julie Fields. The defendant, Lee Arthur McDonald, and others were attending a party there. Some evidence existed that alcohol and narcotics were consumed by the persons at the party. In the early hours of the morning, most of the guests left the house to have breakfast. Defendant and the victim remained. The evidence indicated they were asleep on two different couches located in the same room.

Sometime later, the victim was discovered dead in the backyard of the Fields' residence. It appeared she had been raped. From the condition of the interior of the house and the injuries sustained by the victim, it was apparent that a violent struggle had occurred. Over an hour later, defendant was found unconscious in a field. He had blood stains on his clothing and bite marks on his left hand. During an interview at the police station, defendant made an incriminating statement. This statement was admitted into evidence at trial following a Walker hearing. ¹

Defendant McDonald was prosecuted for murdering the victim during the perpetration or attempted perpetration of a rape. He was found guilty of first-degree murder but mentally ill by a Wayne County jury. M.C.L. §§ 768.36, 750.316; M.S.A. §§ 28.1059, 28.548. He was sentenced to life imprisonment. On appeal to the Court of Appeals, his conviction was affirmed. 86 Mich.App. 5, 272 N.W.2d 179 (1978). We granted defendant's application for leave to appeal. 406 Mich. 1009 (1979).

Defendant raises several questions for our consideration. In particular, this Court directed the parties to address the issue of whether a first-degree murder conviction can be based on the commission of a murder during the perpetration or attempted perpetration of a "rape" after the recent simultaneous repeal of the carnal knowledge statute, M.C.L. § 750.520; M.S.A. § 28.788, and the enactment of the criminal sexual conduct law, M.C.L. § 750.520a et seq.; M.S.A. § 28.788(1) et seq.

Defendant argues that because the former statute punishing rape was repealed and replaced by the present statute punishing criminal sexual conduct the offense known as rape no longer exists. As a result, the crime of first-degree murder based on rape could not properly be charged in an information. We are not persuaded by this argument.

We find the Legislature intended that the repealed carnal knowledge statute define rape for purposes of the first-degree murder statute. The conduct proscribed by the former carnal knowledge statute upon which a first-degree murder conviction was based is also presently prohibited under the criminal sexual conduct act. Consequently, the Legislature did not intend to abrogate such conduct as an aggravating circumstance required for first-degree murder. Rape, as formerly defined under the carnal knowledge law, survives for purposes of prosecution under the first-degree murder statute. We find no merit to the other issues raised by the defendant. We therefore affirm the Court of Appeals.

I

The first-degree murder statute in Michigan provided the following:

"All murder * * * which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping, shall be murder of the first degree." M.C.L. § 750.316; M.S.A. § 28.548. (Emphasis added.)

This statute with its inclusion of the criminal act of rape has existed in one form or another since 1837. See 1838 R.S. Pt. 4, Tit. 1, ch. 3, § 1. ² The crime of rape has likewise been part of Michigan statutory law since 1837. At that time, the common-law definition was adopted as the statutory standard. See Id., § 15. ³ Underlying the criminal statutes of this state is the common law. See generally, Const. 1963, art. 3, § 7; ⁴ M.C.L. § 750.505; M.S.A. § 28.773. ⁵ See also Bugbee v. Fowle, 277 Mich. 485, 492, 269 N.W. 570 (1936).

The statutory codification proscribing rape which existed immediately prior to the present criminal sexual conduct statute was enacted in 1931. See 1931 P.A. 328, § 520. This enactment, known as the "carnal knowledge" statute, basically recodified what had been in effect under prior law. In pertinent part this provision reads as follows:

"Any person who shall ravish and carnally know any female of the age of 16 years, or more, by force and against her will, or who shall unlawfully and carnally know and abuse any female under the full age of 16 years, shall be guilty of a felony * * *. Such carnal knowledge shall be deemed complete upon proof of any sexual penetration however slight." M.C.L. § 750.520; M.S.A. § 28.788.

This statute continued to incorporate the common-law definition of rape "the carnal knowledge of a woman by force and against her will". See Crosswell v. People, 13 Mich. 427, 432 (1865); Moran v. People, 25 Mich. 356, 359 (1872). Statutory evolution raised the age of consent from 10 to 16 years. For an account of the development of this statute, see 4 Gillespie, Michigan Criminal Law & Procedure (2d ed), §§ 2175-2181.

Accordingly, at the time the first-degree murder statute was last recodified in 1931, the conduct historically known as rape was prohibited by the carnal knowledge statute. As it exists in the first-degree murder statute, we are convinced that the term "rape" was intended to encompass the course of conduct originally proscribed at common law and subsequently codified and slightly altered by various statutes through the years.

Even though the provisions of the carnal knowledge statue were replaced by the present criminal sexual conduct statute, the first-degree murder statute and its included designation of rape were in no way altered. ⁶ Absent express legislative action to amend the first-degree murder statute, the definition of "rape" as the proscribed conduct used by trial judges since the last codification of felony murder in 1931 continued in force.

Defendant was not tried and convicted of rape, but of first-degree murder committed in the perpetration or attempted perpetration of rape. The new criminal sexual conduct statute, while enlarging the scope of sexual activity proscribed by its terms, continues the historic prohibition of the conduct for which defendant was prosecuted under the first-degree murder statute. M.C.L. §§ 750.520b, 750.520d; M.S.A. §§ 28.788(2), 28.788(4). ⁷ We therefore cannot accept the assertion that defendant was tried for a crime not cognizable under the laws of Michigan. Conduct proscribed as "rape" is presently defined and has been defined throughout the state's history in a form sufficient to apprise persons in defendant's position of proscribed criminal behavior. This defendant was thus provided adequate notice of conduct for which he was subject to punishment.

We therefore do not hesitate to hold that the passage of the present criminal sexual conduct statute and repeal of the former carnal knowledge statute did not affect the concept of rape in the first-degree murder statute. The first-degree murder statute is a separate statute which punishes a course of conduct defined under its provisions.

It is to be noted that the first-degree murder statute has now been amended by the Legislature so as to conform to the new criminal sexual conduct law. See 1980 P.A. 28, amending M.C.L. § 750.316; M.S.A. § 28.548, effective March 7, 1980. ⁸ In this case, however, which is controlled by the prior law, it was appropriate to use as the definition of rape the one previously used by trial judges. According to the elements required under that definition, the instruction given at defendant's trial was sufficient. ⁹

We thus conclude that no statutory charging error occurred in the prosecution of this case for murder committed during the perpetration or attempted perpetration of a rape.

II

Defendant also argues that he was denied constitutional equal protection as a male by being prosecuted for rape under the first-degree murder statute because Michigan now recognizes that women as well as men can commit conduct constituting criminal sexual conduct, but only men could be charged with first-degree murder committed in the perpetration or attempted perpetration of a rape. See U.S.Const. Am. XIV, Const. 1963, art. 1, § 2. When reviewing an allegedly unconstitutional distinction drawn on the basis of sex, we must determine whether the classification distinguished by the statute is reasonable and rests "upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike". Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971), quoting from F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920). See also Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976); Manistee Bank & Trust Co. v. McGowan, 394 Mich. 655, 670-671, 232 N.W.2d 636 (1975).

What defendant claims here is that defining rape as it had previously been defined in the carnal knowledge statute rather than defining rape as conduct proscribed by the criminal sexual conduct act, means that instances may arise which would create a distinction based on sex. Defendant as a male may be prosecuted for murder in cases where a female committing the same act may not be prosecuted. This potential...