People v. Middleton, Docket No. 7564

• Decision Date: 26 March 1970
• Docket Number: No. 2,Docket No. 7564,2
• Citation: 177 N.W.2d 652,22 Mich.App. 694
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert MIDDLETON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 652

177 N.W.2d 652

22 Mich.App. 694

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert MIDDLETON, Defendant-Appellant.

Docket No. 7564.

Court of Appeals of Michigan, Division No. 2.

March 26, 1970.

Released for Publication June 26, 1970.

Alan W. Stevenson, Campbell, Lee, Kurzman & Leitman, Birmingham, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas G. Plunkett, Jr., Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and McGREGOR and V. J. BRENNAN, JJ.

V. J. BRENNAN, Judge.

On November 26, 1968, defendant Robert Middleton, while in the presence of appointed counsel, tendered a plea of guilty to an open charge of murder and requested the trial court to determine the degree, whther first or second, pursuant to M.C.L.A. § 750.318 (Stat.Ann.1954 Rev. § 28.550). The trial court heard the testimony of three prosecution witnesses and the defendant, found the defendant guilty of murder in the second degree*, and sentenced him to life imprisonment. The defendant now appeals as of right, contending 1) that the inquiry before the trial court should not have been whether his guilt was that of first degree murder or second degree murder, but rather whether it was that of second degree murder or manslaughter, and 2) that the evidence sustains a finding of manslaughter but not second degree murder. Neither of these contentions is of merit, and we affirm.

M.C.L.A. § 750.318 provides in part:

'The jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, ascertain in their verdict, whether it be murder of the first or second degree; but, if such person shall be convicted by confession, the court shall proceed by examination of witnesses to determine the degree of the crime, and shall render judgment accordingly.'

By tendering his plea of guilty to the open charge, the defendant confessed guilt of murder and thereby left only one question for the court, whether his guilt was that of first or second degree murder. The statute does not impose an affirmative duty on the trial court to inquire whether defendant who pleads guilty of murder is instead guilty of the lesser, included offense of manslaughter. In People v. Grillo (1948), 319 Mich. 586, 30 N.W.2d 284, the defendant contended that the trial court erred by not conducting the statutory examination upon his pleading guilty of second degree murder, because manslaughter is a lesser, included offense, and therefore, he argued, a degree of the crime of murder. The Supreme Court rejected his contention, saying, at 590, 30 N.W.2d at 286:

"Manslaughter is distinguished from murder in that the element of malice, express or implied, which is the very essence of murder, is absent.' (2) ...