People v. Shelton

• Decision Date: 10 September 1975
• Docket Number: Docket No. 19340
• Citation: People v. Shelton, 235 N.W.2d 93, 64 Mich.App. 154 (Mich. App. 1975)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene SHELTON, Defendant-Appellant. 64 Mich.App. 154, 235 N.W.2d 93
• Court: Court of Appeal of Michigan

Page 93

235 N.W.2d 93

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

Docket No. 19340.

64 Mich.App. 154, 235 N.W.2d 93

Court of Appeals of Michigan.

Sept. 10, 1975.

Released for Publication Nov. 18, 1975.

[64 MICHAPP 155] Edward L. Parker, Flint, for defendant-appellant.

[64 MICHAPP 154] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

[64 MICHAPP 155] Before LESINSKI, C.J., and BRONSON and ALLEN, JJ.

LESINSKI, Chief Judge.

Defendant was charged with assault with intent to commit murder, M.C.L.A. § 750.83; M.S.A. § 28.278. At his trial before a jury, defendant raised the issue of self-defense. The jury returned a verdict of guilty of the lesser included offense of assault with intent to do great bodily harm less than murder, M.C.L.A. § 750.84; M.S.A. § 28.279, Defendant appeals his conviction as of right.

At one time defendant and Augusta Ivory, the complaining witness, considered themselves friends. Nevertheless, Ivory, claiming he was 'paying back' defendant for a similar incident, had intercourse with defendant's girlfriend while she was under the influence of drugs. When defendant learned of Ivory's exploits he attacked him with a wine bottle. Ivory defended himself with a two-by-four. Others broke up the fight before defendant or Ivory suffered serious injury, but they exchanged serious threats before parting. For the next month or so defendant tried to avoid Ivory. From others he had heard that Ivory was threatening to kill him and that Ivory was often armed.

On the evening of October 2, 1973, defendant was sitting with a woman on the porch of the apartment house where Ivory's sister lived. Seeing Ivory approaching, defendant told the woman to leave. She took a few steps then returned to the porch. Defendant shouted to Ivory, 'Hold it, Gus; hold it right there'. Ivory continued towards the apartment house. When he reached the steps, defendant shot once, hitting Ivory in the chest, then he fled with the woman. Defendant claimed he thought Ivory had a knife, but Ivory was unarmed [64 MICHAPP 156] at the time. His wound was serious but not fatal.

The trial court included in its charge on self-defense the following:

'Going one step further, before a person can avail himself of the defense that he used a weapon in the defense of his life, he must satisfy the jury that that defense was necessary, that he did all he could to avoid it, and that it was necessary to protect his own life or to protect himself from such serious bodily harm as would give him reasonable apprehension that his life was in immediate danger. Ill will of the victim and former quarrels and affrays could have nothing whatever to do with the respondent's peril, however hostile the victim may have been, and however many quarrels and affrays the parties may have had, if the victim by his acts and cries did not threaten peril to the respondent, he would not be authorized by the law to infer peril on account of ill will or prior contests.'

Defendant's counsel objected to the court's instructions as containing misstatements of the law on self-defense. We agree.

For over one hundred years Michigan law has acknowledged the right of a person to act upon a reasonable belief that he is in danger of death or serious bodily harm. Actual necessity is not the test for self-defense; where circumstances present a person with reasonable cause to believe he is in danger he may respond, even if his belief is later shown to have been a mistaken one. Pond v. People, 8 Mich. 150 (1860). See, also, People v. Macard, 73 Mich. 15, 40 N.W. 784 (1888); People v. Giacalone, 242 Mich. 16, 217 N.W. 758 (1928), and People v. Cameron, 52 Mich.App. 463, 217 N.W.2d 401 (1974).

In People v. Burkard, 374 Mich. 430, 132 N.W.2d 106 (1965), the Supreme Court found error in the [64 MICHAPP 157] part of the trial court's instruction that required a finding that an assault was in fact about to be made before the defendant would be justified in using lethal force to protect his wife. The proper test, stated the Court, was not necessity in fact but rather an honest belief in the necessity for action.

It is unlikely that Burkard introduced a new determination for self-defense cases--whether a defendant's belief in impending harm was honest or dishonest. The test of 'honest belief', we take it, means only that a defendant's conduct should be judged 'from the circumstances as they appeared to him at the time'. People v. Tubbs, 147 Mich. 1, 12, 110 N.W. 132, 136 (1907).

'The question to be determined is, did the accused, under all the circumstances of assault, as it appeared to him, honestly believe that he was in danger of his life, or great bodily harm, and that it was necessary to do what he did in order to save himself from such apparent threatened danger?' People v. Lennon, 71 Mich. 298, 300--301, 38 N.W. 871, 872 (1888).

The portion of the trial court's instruction quoted above was taken from 2 Gillespie, Michigan Criminal...