People v. Pepper

• Decision Date: 26 April 1973
• Docket Number: No. 4,4
• Citation: 389 Mich. 317,206 N.W.2d 439
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jodie PEPPER, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 439

206 N.W.2d 439

389 Mich. 317

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jodie PEPPER, Defendant-Appellant.

No. 4.

Supreme Court of Michigan.

April 26, 1973.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Gerard A. Poehlman, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

State Appellate Defender Office by James R. Neuhard, Asst. Defender, Phil Hubbard, Research Asst., Detroit, for defendant-appellant.

Before the Entire Bench.

T. M. KAVANAGH, Chief Justice.

During the late morning of November 29, 1969, defendant, the decedent and a group of friends gathered at Early Porchia's apartment where they were engaged in drinking.

Apparently at some point as defendant, decedent and two others were about to leave, defendant confronted decedent with a gun. A verbal exchange ensued, the essence of which was an accusation or intimation that decedent was having an affair with defendant's girlfriend. General argument followed and as they all reached the porch the gun which defendant held discharged, fatally wounding Frank York. Defendant indicated that that particular gun could be and often had been fired just using the hammer. His defense was that the shooting had been accidental, claiming he was only handing the gun to decedent who was to sell it for him.

Defendant was charged with first degree murder. A jury trial resulted in a verdict of guilty of manslaughter. The Court of Appeals affirmed, Levin, J., dissenting. 36 Mich.App. 437, 194 N.W.2d 67 (1971). We granted leave to appeal. 386 Mich. 785 (1972).

On appeal, defendant raises three issues, all claiming instructional errors.

1. Did the trial court err in instructing the jury that it could presume that defendant's unlawful act was done with unlawful intent, where the defense was accident?

2. Did the trial court err in instructing the jury on manslaughter where the prosecutor argued premeditated murder and the defense argued excusable homicide?

3. Did the trial court err in its supplemental instructions to the jury by misleading them and coercing a verdict?

Defendant's first issue is that which requires reversal of his conviction. Though persistently cotending that the decedent met his demise as the consequence of accident, defendant did not have the benefit of such theory embodied in the trial court's jury instructions. It appears that the only 'defense' as such explained to the jury was self-defense. And it appears that even it was removed from the jury's consideration.

Though the fifth of the five enumerated essentials of the People's case was that defendant had not acted in self-defense, the court later stated in a supplemental instruction that, 'Now as I recall the testimony, you need not even concern yourself with number 5. There is no claim here that there was self-defense.'

True, justifiable homicide was never raised in the case, but excusable homicide was.

The failure of the trial court to explain the legal ingredients of excusable homicide set the stage for the second error which had the cumulative effect of assuring defendant's conviction. Having determined the jury was in need of further clarification on the element of intent, the trial court gave the following supplemental instruction:

'Something has been said about intent in this case, and as bearing upon that question, I say to you that where an unlawful act is done, the law presumes it was done with an unlawful intent.

'Intent, except when confessed, is a matter of presumption. Intent, unless confessed, can only be proved by acts, as jurors cannot look into the breast of the accused. And where an act is knowingly committed, it naturally leads to certain consequences, and a jury has a right to draw the inference, as they draw all other inferences, from the facts in evidence which to their minds fairly proves its existence.

'If the direct tendency of a man's willful act is to produce injury and injury is in fact produced, the intent to produce it is in law deducible from the act itself, for the law presumes that every person intends the usual consequences which accompany the use of the means employed in the manner employed.'

The above quoted instruction was taken from 2 Gillespie Michigan Criminal Law and Procedure (2d ed.), § 906. Form 338, p. 1244.

This instruction is a composite of language from the opinions in People v. Carmichael, 5 Mich. 10, 17 (1858); and People v. Scott, 6 Mich. 287, 296 (185...