People v. Noth

• Decision Date: 26 April 1971
• Docket Number: No. 2,Docket No. 7675,2
• Citation: 33 Mich.App. 18,189 N.W.2d 779
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter M. NOTH, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 779

189 N.W.2d 779

33 Mich.App. 18

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter M. NOTH, Defendant-Appellant.

Docket No. 7675.

Court of Appeals of Michigan, Division No. 2.

April 26, 1971.

Rehearing Denied June 2, 1971.

Released for Publication Sept. 21, 1971.

Walter M. Noth, in pro. per.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appellate Lawyer, Don L. Milbourn, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and LEVIN and O'HARA, JJ.

O'HARA, Judge.

This is an appeal on leave granted from a jury conviction of rape ¹ rendered on December 12, 1950. Prior thereto, on October 11, 1950, the defendant was convicted of manslaughter under an information charging first-degree murder. ² In the murder trial, the prosecution did not rely alone on the historic elements of premeditation and malice. Rather, the people argued that defendant was guilty under the statute making any killing which occurs in the commission of or the attempt to commit the crime of rape, first-degree murder. It is undisputed that the trial judge specifically instructed the jury on this precise point. We quote:

'The Court: Attention has been called (by defense counsel) to the fact that the court mentioned the theories and claims of the defendant and did not state the claim or theory of the prosecution, and in fairness I should state as has been stated by them, it is their claim that this killing was a murder that was committed in the perpetration, or attempted perpetration of rape, and therefore, it is under the statute murder of the first degree. That is the claim of the prosecution. You may now retire in charge of the officer.'

The obvious question is whether the defendant was twice put in jeopardy for the same offense, rendering his second conviction repugnant to the Fifth Amendment to the Constitution of the United States.

The law is clear. The Fifth Amendment protection against double jeopardy is enforceable against the states through the Fourteenth Amendment. Benton v. Maryland (1969), 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. Benton, supra, is retroactive. North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656.

Thus, if defendant's conviction for rape (and consequent life sentence) is constitutionally infirm, he is entitled to his freedom instanter for he has completed his 10 to 15 year sentence under the prior conviction for manslaughter.

The question becomes whether he was in fact twice put in jeopardy for the same offense under the law of Ashe v. Swenson (1970), 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469. This decision controls the instant case. Prior to Ashe, the controlling law was Hoag v. New Jersey (1958), 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913, reh. den. 357 U.S. 933, 78 S.Ct. 1366, 2 L.Ed.2d 1375. In Hoag, the Supreme Court adopted and applied the Fourteenth Amendment test of due process alone, that of 'fundamental unfairness.' The court did not decide whether the doctrine of 'collateral estoppel' is an 'ingredient of the Fifth Amendment guarantee against double jeopardy.' In Ashe the court incorporated the doctrine into the Fifth Amendment, enforceable against the states, and retroactively applicable. We quote Mr. Justice Stewart who wrote the opinion of the Court in Ashe.

"Collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future law suit.' (397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469, 475).

Thus, our task is to determine judicially whether in this case of Noth the issue of ultimate fact, I.e., whether Noth's conviction of manslaughter was a determination by a valid and final judgment that he was not guilty of rape or attempted rape. If it did, his second trial for rape offended against the Fifth Amendment guaranty against double jeopardy.

On June 11, 1950, defendant embarked upon a social program, the chief constituent of which was drinking beer. The activities began between 12:30 and 1 of that Saturday afternoon. According to defendant's testimony, between a picnic, a visit to a tavern, a side trip to his home and a fresh start about 1:30 a.m., he drank 'about 15 bottles of beer.' Along about this time, he testified with complete candor that 'he wanted a woman.' He knew of a place called Bill's Woods (also known to him as Gus's Woods) where those amorously inclined were known to gather and park. He indicated in the second (rape) trial that there were 'guys who were pimping out there' and one could obtain gratification for a modest stipend. To this end, he stopped at his homne to get some money. He also, at some undetermined time, armed himself with a pistol which he was carrying in his belt under his shirt.

Upon arriving at the wooded area, he pulled up alongside a parked car. He got out of his truck and walked over to the car and saw a woman in the front seat. At this point the testimony is in conflict. According to the prosecutrix, he opened the door and announced, 'I want a piece of ass and I don't care who knows it.' According to the defendant, he asked her if she was alone. He does not remember whether or not she answered. At this moment, the defendant's version is that a man raised himself up from the back seat. The defendant testified that he told him, 'I only wanted a woman and everything was going to be all right.' The man started to get out of the car, the woman having already stepped out. 'I got scared and told him to stay in the car.' The man continued to get out of the car and 'he got hold of me and I rasseled loose and then I heard--I faintly remember--* * * two shots' from defendant's gun. We now quote directly:

'Q. What did you do after the episode you just mentioned?

'A. Beg pardon.

'Q. What did you do after the rassle or scuffle ended?

'A. Well, I got back in the truck and tried to start it--

'Q. Did it start?

'A. No, sir, it didn't start--

'Q. What did you do?

'A. I started to take the car and flee.

'Q. The other car that was sitting there?

'A. Yes.

'Q. Did you take it?

'A. Yes, I did take it.

'Q. Anything happen between the time that you started (?) the truck and couldn't start it and the time you drove away in the other car?

'A. Yes, I seduced the woman.'

Defendant claims that the intercourse was attended by little resistance, if any; that while in the act of intercourse he asked the woman if she wanted to go with him and that she said 'Yes'; that she got in the car with him voluntarily and that later she was 'blabbering'; and that he pushed her out of the car and continued on to Cincinnati where he was later arrested.

The prosecutrix's facts are somewhat less complicated. In simple substance she claimed that after the defendant's introductory remark her husband got out of the car, that defendant shot him, pushed her to the ground, forcibly raped her, and then hit her over the head with the pistol.

On these facts, or whichever factual version or combination thereof it chose to believe, the jury found the defendant guilty of manslaughter.

The information filed reads as follows:

'Walter Noth feloniously, wilfully and of his malice aforethought did kill and murder one Eugene Schaaf contrary to Section 28.548, Michigan Statutes Annotated.'

It is at least of interest to note that the jury, before arriving at its verdict, three times requested further instructions concerning the difference between the degrees of murder and asked specifically for instruction upon the elements of manslaughter. The foreman asked if they could bring in a verdict with a recommendation. The trial judge disallowed the request, but permitted the jurors to express themselves individually. ³ Three jurors recommended the maximum penalty.

In response to the jury's request as to the difference between murder and manslaughter, the trial judge replied:

'The one element that must be there to distinguish it (murder) from manslaughter (is) the motive.'

Soon thereafter the verdict of guilty of manslaughter was returned and the sentence was imposed as noted.

Then came defendant's arrest, arraignment, and trial on the following charge:

'That * * * on or about the 12th day of June, * * * one Walter Noth, with force and arms, in and upon Beulah Schaaf, a female of the age of 16 years or more, to wit, of 31 years, did make an assault on her, the said Beulah Schaaf, then and there by force and against her will did ravish and carnally know contrary to Section 529, Act 328, Public Acts of 1931, 28.788 Michigan Statutes Annotated.'

At this trial the testimony of the prosecutrix was virtually identical to that which she gave in the murder case. Defendant, however, expanded upon and to some extent modified his testimony at the murder trial. The significant modification or expansion is in the following account of what transpired immediately after he fatally shot Mrs. Schaaf's husband. ⁴ As Mr. Schaaf was getting out of the car defendant said:

'* * * I told him there was no use getting mad--I was leaving. All I wanted was a woman--I was leaving.'

Then came the reaffirmation and expansion of the testimony which we think furnishes the crucial fact situation. After defendant had testified that he had declared his intention to leave, the following testimony was adduced.

'Q. What did he (Mr. Schaaf) do?

'A. He got out of the car, and I was scared and I started to run and started to get into the truck.

'Q. What happened then?

'A. I changed my mind about getting into the truck for some reason or other and started to run and he grabbed me and we had a slight scuffle and I shot him.'

'Q. What did you do then?

'A. I kind of realized the plight I was in and started to flee and was going to take the car and I got out and seen...