People v. Ochotski

• Decision Date: 25 January 1898
• Citation: 115 Mich. 601,73 N.W. 889
• Court: Michigan Supreme Court
• Parties: PEOPLE v. OCHOTSKI.

73 N.W. 889

115 Mich. 601

PEOPLE v. OCHOTSKI.

Supreme Court of Michigan

January 25, 1898

Exceptions from circuit court, Wayne county; George S. Hosmer, Judge.

Martin Ochotski was convicted of assault with intent to do so great bodily harm, less than murder, and he excepts. Affirmed.

Fred A. Maynard, Atty. Gen., and Allan H. Frazer Pros. Atty., for the People.

John G Hawley, for respondent.

LONG C.J.

Respondent was convicted in the recorder's court of Detroit under an information charging that the respondent, "on the 17th day of May, A. D. 1896, at ***, did assault one Rosanna Heike, in the peace of the people *** then and there being with intent to do her, the said Rosanna Heike, great bodily harm and pain and injury, less than the crime of murder," etc. The case comes into this court on exceptions before sentence. The information was filed under section 9122a, 2 How. Ann. St., which provides that "any person who shall assault another with intent to do great bodily harm, less than the crime of murder, shall be punished by imprisonment in the state prison not more than ten years, or by fine not exceeding eight hundred dollars, or by both, in the discretion of the court." After conviction a motion for a new trial was entered in the circuit court, and denied. This motion is incorporated in the record, and the grounds upon which a reversal of the case is now asked are embodied in the motion, and are, substantially: (1) That the court failed to instruct the jury that if they should find that the respondent committed the assault alleged in the information, with intent to commit grievous bodily harm, they must also find that said assault was committed with such an intent as would have made the respondent guilty of murder, and not merely of manslaughter, if death had ensued as a result of such assault. (2) That the court did not instruct the jury as to what intent on the part of the respondent would have rendered him guilty of murder, and what of manslaughter, if death had ensued as a result of the assault alleged. (3) That the court did not instruct the jury that, if the respondent was guilty of an unlawful assault, yet, if it was such an assault that if death had ensued the offense would have been no more than manslaughter, they could not in this case find him guilty of any greater offense than a simple assault. (4) That the court instructed the jury that the fact that respondent had been acquitted of the charge of criminal assault upon the husband of the complaining witness in the same transaction in which the respondent is charged in this case could be considered by the jury only as bearing upon his character as a man. (5) That the court did not instruct the jury that said acquittal conclusively established, as between the people and respondent, that respondent had not committed any criminal assault upon the husband of complaining witness, the undisputed testimony showing that the complaining witness intervened against the respondent on the side of her husband, while, as it was claimed on the trial, the respondent was engaged in an unlawful assault upon her husband, this being the same transaction as to which the respondent had been acquitted of any wrongful conduct. (6) That the court did not instruct the jury that it was res adjudicata, as between the people and respondent, that when complainant attacked him on behalf of her husband respondent was acting lawfully, in his own defense, and that the husband of complainant was then engaged in an unlawful assault on this respondent, and that this jury must accept the verdict of the former jury as conclusive upon that point. (7) That the court did not instruct the jury that if, according to some of the testimony, the complaining witness interfered to help her husband while he was engaged in an unlawful assault upon the respondent, she was guilty of the first unlawful assault upon the respondent. (8) That the information does not charge any higher offense than a simple assault. (9) That the verdict was contrary to the evidence.

The testimony upon the part of the people tended to show that Rosanna Heike and her husband were neighbors of respondent and his family; that respondent is a milkman, and kept eight or nine cows, and that the Heikes kept one cow; that these cows were permitted to roam at large over the commons; that on May 17, 1896, the Heike cow was in a herd with respondent's, when, respondent's daughter having separated them, the respondent commenced beating the Heike cow; that Heike went out to remonstrate with him, when respondent made an unprovoked assault upon him. Having disabled Heike, the respondent turned upon Mrs. Heike, and struck her a number of severe blows on the head, inflicting two scalp wounds, and another bruised, ragged wound on the neck; that he then struck her a blow on the head, knocking her down; that when she arose the flesh from the end of one of her fingers was scraped from the bone, the finger being broken, and was subsequently amputated. Mrs. Heike testified that she could not state how this injury was caused, but at the time she was struck she was holding her hands over her head to protect it while respondent was striking her with a shovel handle or club of similar appearance. On the part of respondent there was evidence tending to show that, while the cows were being separated by respondent's wife and daughter, Mr. Heike rushed out of his house with a club to stop them from so doing; that they ran towards their house, when Heike ran in front of them; that they called to respondent for help, but before he reached them Heike struck respondent's wife, and when respondent came up Heike struck him, and again struck respondent's wife; that then Mrs. Heike came up and struck respondent with a piece of flooring on the back, while Heike struck him at the same time from the front; that respondent's daughter, being called to do so, ran and got some sticks for respondent, with which he defended himself from the Heikes, and ended the conflict; that respondent had his head injured in the conflict, and was so badly injured that for seven weeks he could not raise his arm; that the hands of respondent's wife were badly injured; that the injury to Mrs. Heike's finger was caused by her picking up an old tin pail, and striking respondent with it, and, as she struck, falling down and upon it. It was a matter of dispute between the parties as to which used the piece of flooring. There was also evidence given on the part of respondent that Mr. Heike had prosecuted respondent for an assault and battery, upon the same facts as are involved in this case, before a justice of the peace and a jury, which suit resulted in acquittal.

The trial court, after reading to the jury the statute under which the information is filed, and stating to them the law upon the question of reasonable doubt, said to them: "Of course, in each instance in this case where a special intent is charged,-that is, an assault with a special intent,-it is essential that the prosecution should prove not only the assault, but prove the intent as well; that is, not only prove that the respondent struck Mrs. Heike, but so struck her and inflicted the injuries with intent to do great bodily harm, less than the crime of murder." The court after speaking of the manner in which such intent might be shown, said further: "If there was a blow inflicted by respondent upon Mrs. Heike, you may consider the character of what you believe to be the weapon used; you may consider the injury which was produced; you may consider the violence which you believe was used; and from that determine what intent the respondent had, if you find that he was guilty of striking the blow. When I speak of blows, I mean unlawful blows; for a person has a right, in resisting an assault and battery, to use such force as is essential to repel the assault, but he has no right, of course, to use unnecessary severity in protecting himself." The court said in reference to the trial and acquittal of respondent for the assault and battery upon Mr. Heike: "The fact that he was not convicted in that case undoubtedly may bear upon his character as a man,-may be considered in that regard. *** But you are the judges of the facts in this case, and not that jury. You are the judges of whether Mrs....