People v. McKeller, Docket No. 7594

• Decision Date: 25 January 1971
• Docket Number: No. 1,Docket No. 7594,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. pete McKELLER a/k/a Curtis McKeller, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 905

185 N.W.2d 905

30 Mich.App. 135

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. pete McKELLER a/k/a Curtis McKeller, Defendant-Appellant.

Docket No. 7594.

Court of Appeals of Michigan, Division No. 1.

Jan. 25, 1971.

Rehearing Denied March 26, 1971.

Released for Publication April 29, 1971.

Leave to Appeal Denied June 15, 1971.

Fred K. Persons, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas P. Smith, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and HOLBROOK and VANDER WAL, ^* JJ.

PER CURIAM.

The defendant was convicted by a jury of murder in the second degree as charged, C.L.1948, § 750.317 (Stat.Ann.1954 Rev. § 28.549). He was sentenced to a term of 4 to 12 years in prison.

On appeal the issues raised are whether there was sufficient evidence to sustain the verdict, and whether there was error in the trial court's instructions to the jury on self-defense and malice.

During the afternoon of June 8, 1968, there were fights between members of the defendant's family and the deceased's family. The police were called twice.

In response to a telephone call by his daughter, the defendant arrived at the scene of the fighting looking for the deceased. A confrontation took place between the deceased who was armed with a shotgun and the defendant who had a pistol. The two men agreed to talk. Fighting again broke out between the deceased's wife and the defendant's daughter. There was conflicting testimony as to whether the deceased raised his shotgun and stopped towards the defendant or whether the deceased kept his shotgun pointed downwards and stepped towards the fighting women. The defendant admitted that he shot the deceased twice, but claimed that he acted in self-defense. The credibility and weight to be given testimony is for the jury to decide. People v. Moss (1969), 16 Mich.App. 295, 167 N.W.2d 788. We hold that there was sufficient evidence presented from which the jury could find beyond a reasonable doubt that the defendant was guilty of murder in the second degree.

On appeal defendant asserts that there was not sufficient evidence as to the element of malice; therefore it was error for the trial court to deny a motion for a directed verdict as to murder in the second degree. Malice can be inferred from the type of weapon used and the manner in which the crime was committed. People v. Dumas (1970), 25 Mich.App. 173, 181 N.W.2d 89; People v. Case (1967), 7 Mich.App. 217, 151 N.W.2d 375. The totality of the circumstances surrounding this armed confrontation are sufficient to warrant a finding of malice on the part of the defendant. The instant case differs significantly from People v. Hansen (1962), 368 Mich. 344, 118 N.W.2d 422; here, the defendant chose to meet the deceased on a neutral field of combat, while in Hansen the deceased forced his way into defendant's...