People v. Sherman

• Decision Date: 19 December 1968
• Docket Number: No. 1,Docket No. 2159,1
• Citation: 166 N.W.2d 22,14 Mich.App. 720
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William SHERMAN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 22

166 N.W.2d 22

14 Mich.App. 720

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William SHERMAN, Defendant-Appellant.

Docket No. 2159.

Court of Appeals of Michigan, Division No. 1.

Dec. 19, 1968.

Released for Publication March 28, 1969.

Martin D. Grant, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Thomas P. Smith, Asst. Pros. Atty., Wayne County, Detroit, for appellee.

Before T. G. KAVANAGH, P.J., and LEVIN and NEWBLATT, ^* JJ.

PER CURIAM.

The defendant was convicted upon jury trial of the offense of assault with intent to do great bodily harm less than the crime of murder. ¹ Of the 27 errors urged on appeal, the 18 designated in appellant's brief as 'points of defendant's insisting on being raised on appeal' are not supported in the record. Of the remaining grounds, only one shall be dealt with here.

A meticulous examination of the record establishes that defendant's asserted defense of self-defense has sufficient testimonial support to require it to be submitted to the jury as an issue. Apparently the trial court also so concluded and then charged the jury that the defense theory was that of a mutual fight. ² Upon conclusion failed to prove his guilt beyond a reasonable asked to approach the bench. The request was refused, and nothing further appears in the record as to the charge. It therefore appears that defendant's counsel was not afforded the opportunity to make objections to the charge.

'Mutual fight' is not the same as self-defense. 'Mutual fight' could include self-defense but not necessarily so. The theory of 'mutual fight' may be asserted not for purposes of showing a justification or an excuse for what would otherwise be an assault, but rather to characterize the affray for purposes of negating a specific intent such as the intent to do great bodily harm. But, the phrase 'mutual fight' may also include self-defense under appropriate circumstances.

Since the theory of self-defense was within the range of the evidence, the instruction of the court dealing only with the more limited aspect of 'mutual fight' was legally inadequate. This is particularly emphasized by the fact that the trial court, in stating the theory of the prosecution to the jury, stated factual positions negating a self-defense theory. ³

An accused is entitled to have his theory clearly recognized in the charge. People v. Cummins (1882), 47 Mich. 334, 11 N.W. 184, 186; People v. Welke (1955), 342 Mich. 164, 68 N.W.2d 759. The charge as given was erroneous and misleading. Even though there was no request to charge submitted, reversal is warranted where an erroneous or misleading charge is given as opposed to a charge which merely omits a pertinent though not legally necessary point. People v. Liggett (1967), 378 Mich. 706, 148 N.W.2d 784; People v. Guillett (1955), 342 Mich. 1, 69 N.W.2d 140. If a subject is an essential ingredient of a charge, which self-defense was here, the court must charge on it even in the absence of a request. People v. Hearn (1958), 354 Mich. 468, 93 N.W.2d 302.

Reversed and remanded for a new trial.

* STEWART A. NEWBLATT, Circuit Judge for the County of Genesee, appointed by the Supreme Court for the hearing month of June, 1968, pursuant to § 306 P.A.1964, No. 281.

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