People v. Miner, Docket No. 7206

• Decision Date: 26 March 1970
• Docket Number: No. 1,Docket No. 7206,1
• Citation: 22 Mich.App. 673,177 N.W.2d 719
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Eugene MINER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 719

177 N.W.2d 719

22 Mich.App. 673

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Eugene MINER, Defendant-Appellant.

Docket No. 7206.

Court of Appeals of Michigan, Division No. 1.

March 26, 1970.

Released for Publication June 26, 1970.

Robert M. Hetchler, 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., Luvenia D. Dockett, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and FITZGERALD and McGREGOR, JJ.

DANHOF, Judge.

Defendant was tried on a charge of assault with intent to commit murder. The jury found him guilty of a lesser included offense, assault with intent to do great bodily harm less than murder, M.C.L.A. § 750.84 (Stat.Ann.1962 Rev. § 28.279). Defendant was sentenced to a term of 9 to 10 years in prison.

The complaining witnesses, two Detroit policemen, testified that on the evening of May 3, 1968 they were on patrol in the city of Detroit in an unmarked car when they observed defendant driving at a high rate of speed. They followed his car and pulled along side when he stopped for a light. The officers testified that when they then ordered defendant to pull over he looked directly at them and then drove off. The officers were in uniform.

A high speed chase ensued, and defendant finally turned into a slag yard where his car came to a stop against a large slag heap. When the officers who had momentarily lost sight of defendant's car spotted him he was standing some 25 to 40 yards away with a shotgun at his shoulder pointed at the officers.

At this point one of the officers ducked down after which he heard what sounded like a shotgun blast. The officer testified that he then identified himself as a police officer and ordered defendant to drop his gun. When defendant failed to do so the same officer shot him with his revolver, wounding him. Other officers from the Detroit and Dearborn police departments arrived within minutes. Defendants was searched and then taken to the hospital. A search of his car uncovered a small arsenal of weapons all of which were introduced as evidence at trial over the vigorous objection of defense counsel.

One of the Dearborn police officers testified that the shotgun allegedly used by defendant had a spent shell in it when examined at the scene of the incident. He further testified that he had detected a faint odor of powder when he first examined the weapon at the scene.

The sole witness in defendant's behalf was the defendant himself. He testified that he did not know that the men who ordered him to pull over at the traffic light were police officers. He testified further that he first noticed they were police officers when he saw them at the slag yard. Defendant said that as soon as he learned this he laid down his weapon, and that he never once fired the weapon before he was shot by the police.

On cross-examination the prosecution elicited the information that defendant had an extensive criminal record, and that on the date of the incident he was an escapee from an Ohio jail.

On appeal defendant raises a number of questions, the principle one being whether the trial court erred prejudicially by admitting into evidence two .22 calibre rifles, four boxes of .22 calibre bullets, a pair of binoculars, two shotgun shells, two screw drivers, a homemade knife and other items, all of which were found in defendant's automobile at the time of his arrest, when the information and facts testified to by the people's witnesses charged defendant with assault with intent to kill and murder with a certain 20 gauge shotgun.

Apparently, there is a dearth of Michigan authority precisely in point on this question. However, the following quotation from a legal encyclopaedia is pertinent, 22A C.J.S. Criminal Law § 712,...