People v. Sangster

• Decision Date: 21 May 1971
• Docket Number: No. 3,Docket No. 8424,3
• Citation: 190 N.W.2d 317,33 Mich.App. 712
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ollie Lee SANGSTER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 317

190 N.W.2d 317

33 Mich.App. 712

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ollie Lee SANGSTER, Defendant-Appellant.

Docket No. 8424.

Court of Appeals of Michigan, Division No. 3.

May 21, 1971.

Released for Publication Oct. 11, 1971.

Robert N. Geyer, Cook, Nash, Deibel & Borrello, Saginaw, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George E. Thick, II, Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and BRONSON and O'HARA ^*, JJ.

BRONSON, Judge.

Defendant was tried in the Circuit Court for the County of Saginaw for the crime of second-degree murder. At trial, defendant pleaded self-defense as justification for the killing. Trial was commenced on June 3, 1969, and the jury returned a verdict of guilty of manslaughter on June 13, 1969. Defendant was sentenced to a term of 5 to 15 years in prison.

We note that appointed defense counsel briefed this Court on his position of law and relevant facts of the instant case. The Saginaw County prosecutor's office had to be prodded to file a brief. See People v. Walma (1970), 26 Mich.App. 326, 182 N.W.2d 110.

Defendant's only issue on appeal relates to the trial court's instruction regarding self-defense. No objection was made to the trial court's instruction. Nevertheless, defendant contends that the trial court's instruction was erroneous and constituted reversible error.

Although failure to object will ordinarily preclude appellate review of an alleged instructional error, GCR 1963, 516.2, certain exceptions are recognized. It will become apparent from the discussion which follows that the case at bar comes within the purview of People v. Liggett (1967), 378 Mich. 706, 714, 148 N.W.2d 784. See People v. Price (1970), 21 Mich.App. 694, 176 N.W.2d 426.

We have carefully reviewed the trial court's instruction and quote the following relevant parts:

'Now, in order that a person would be put in apprehension, there has to be some sort of an Assault committed. * * *

'In justification of the charge made here, the defendant, Ollie Lee Sangster, seems to have interposed a plea of self-defense and under certain circumstances this is a good defense. To make the plea available, it must appear that the defendant was without fault on his part. If he, himself, was the aggressor in the conflict, he cannot invoke the doctrine of self-defense as an excuse for the assault Unless he was at that time in immediate danger of losing his life or suffering some grievous bodily injury and there was no retreat open to him and his only safety was in striking the blow which caused the injury.' (Emphasis added.)

The test of whether 'an assault (was) committed' or whether defendant 'was at that time in immediate danger of losing his life or suffering some grievous bodily injury' is clearly and reversibly erroneous. People v. Burkard (1965), 374 Mich. 430, 437, 438, 132 N.W.2d 106. As in Burkard, the trial judge in the instant case later stated correctly that the test is whether 'there existed at the time of striking the blow In (defendant's) mind a present and impending necessity to strike such a blow in order to save himself from death or great bodily harm'. (Emphasis added.)

The problem with the quoted portions of the trial court's...