People v. McGrandy

• Decision Date: 07 December 1967
• Docket Number: Docket No. 1716,No. 3,3
• Citation: 9 Mich.App. 187,156 N.W.2d 48
• Parties: , 26 A.L.R.3d 1292 PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edna Marie McGRANDY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 48

156 N.W.2d 48

9 Mich.App. 187, 26 A.L.R.3d 1292

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edna Marie McGRANDY, Defendant-Appellant.

Docket No. 1716.

Court of Appeals of Michigan, Division No. 3.

Dec. 7, 1967.

Released for Publication Feb. 19, 1968.

William J. Ginster, Saginaw, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert B. Currie, Pros. Atty., Saginaw County, Saginaw, for plaintiff-appellee.

Before HOLBROOK, P.J., and BURNS and McGREGOR, JJ.

BURNS, Judge.

A circuit court jury found Mrs. Edna Marie McGrandy guilty of manslaughter. C.L.1948, § 750.321 (Stat.Ann.1954 Rev. § 28.553). The facts* of this case for the purposes of this opinion can be stated as follows.

On May 1, 1965, defendant and her husband, both of whom had been out drinking much beer and some whiskey, returned to their second floor apartment. Without getting into the details of what occurred upon their arrival, suffice it to say that Mr. McGrandy stood in the kitchen doorway with a loaded rifle in his hands. It is defendant's claim that her husband cocked the rifle and intended to use it on her. Mrs. McGrandy then grabbed a butcher knife, and in an alleged attempt to 'get him out of my way so I (Mrs. McGrandy) could get out,' Mr. McGrandy was fatally stabbed.

Defendant might have avoided a confrontation with her husband by retreating out another kitchen doorway which led to the apartment's rear porch and stairway. The jury was made very aware of this alternative route of escape.

In support of defendant's argument of self-defense counsel for defendant, citing People v. Stallworth (1961), 364 Mich. 528, 111 N.W.2d 742, requested a jury instruction that a person is not obliged to retreat from his dwelling. The trial court, however, gave the following instruction.

'Now, in justification of the offense herein charged, the defendant interposed a plea of self-defense. Under certain circumstances this is a good defense. To make a plea of self-defense, it must appear that the defendant was without fault on her part. If she herself was the agressor in the conflict, she cannot invoke the doctrine of self-defense as an excuse for the killing unless she was at that time, as she saw it, in imminent danger of losing her own life or suffering some grievous bodily injury, and There was no way open for her to retreat, as she was it. Self-defense will not justify the taking of a human life unless you jurors shall be satisfied from the testimony, first that the defendant was not the agressor bringing on the difficulties as has just been pointed out. Secondly, that there existed at the time of striking the fatal blow in Marie McGrandy's mind a present and impending necessity to save herself from death or some great bodily harm, and third, There must be no way open whereby she could have retreated, as it appeared to her, at that time, to a place of safety and thus avoid the conflict.

'Unless you find all three of these elements in the case, then the plea of self-defense fails.' (Emphasis supplied.)

The general rule in cases where self-defense is asserted is that the defendant must do 'all which is reasonably in his power to avoid the necessity of extreme resistance, by retreating where retreat is safe.' Pond v. People (1860), 8 Mich. 150, 176. The Pond case, supra, page 177, also recognized an exception to this rule:

'A man is not however, obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house, or to pevent his forcible entry, even to the taking of life.'

There is a split of authority throughout the country in the applicability of this exception when the assailant and the assailed share the same living quarters where the alleged attack occurred. Justice Cardozo in People v. Tomlins (1914), 213 N.Y. 240, 107 N.E. 496 reasoned:

'It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home. * * * The rule is the same whether the attack...