People v. Smith

• Decision Date: 27 August 1974
• Docket Number: No. 1,Docket No. 15822,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Archie Michael SMITH, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 172

222 N.W.2d 172

55 Mich.App. 184

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Archie Michael SMITH, Defendant-Appellant.

Docket No. 15822.

Court of Appeals of Michigan, Division No. 1.

Aug. 27, 1974.

Rehearing Denied Oct. 3, 1974.

Released for Publication Oct. 18, 1974.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas A. Ziolkowski, Asst. Pros. Atty., for plaintiff-appellee.

Before GILLIS, P.J., and ALLEN and ELLIOTT,* JJ.

J. H. GILLIS, Presiding Judge.

Defendant was charged with felony murder (M.C.L.A. § 750.316; M.S.A. § 28.548), ¹ the underlying felony being robbery. Mr. Smith defended himself and prior to the jury instructions the following exchange occurred:

'Mr. Smith: As far as the evidence, I feel they (the jury) could be charged with murder one or two or manslaughter.

'The Court: No, only murder one.

'Mr. Monash (Prosecutor): Do you want any included offenses?

'The Court: Any homicide perpetrated with another felony is murder one. It is not murder two or manslaughter.

'Mr. Smith: You said you won't say manslaughter or second degree?

'The Court: I will not charge them. It is either murder one or you are innocent. One or the other.'

The jury found defendant guilty as charged and he was sentenced to life imprisonment. On appeal, defendant argues that the court's refusal to instruct the jury on the lesser offenses of second-degree murder and voluntary manslaughter constitutes reversible error.

This Court has split on the question raised here. People v. Bufkin, 43 Mich.App. 585, 589, 204 N.W.2d 762, 763 (1972), held:

'(T)hat in a prosecution for felony murder, that is to say any homicide committed in the perpetration, or the attempt to perpetrate one of the statutorily specified offenses, the trial judge is obliged to instruct the jury that its verdict shall be guilty of murder in the first degree or not guilty.'

See People v. Graves, 52 Mich.App. 326, 217 N.W.2d 78 (1974). However, in People v. Wimbush, 45 Mich.App. 42, 45--46, 205 N.W.2d 890, 892--893 (1973), another panel of this Court responded:

'Recently, a panel of this Court held that henceforward 'in a prosecution for felony murder * * * the trial judge is obliged to instruct the jury that its verdict shall be guilty of murder in the first degree or not guilty'. People v. Bufkin, 43 Mich.App. 585, 204 N.W.2d 762 (1972). We disagree that such is the law of Michigan or even a wise rule. There have been cases in which what appeared to have been a felony murder was less. A rigid rule, such as that announced in Bufkin, may allow an individual guilty of second-degree murder or manslaughter to escape conviction, or may tempt a jury to convict a man of a more serious crime rather than acquit him or properly return a verdict of guilty of homicide of a lesser degree than first-degree murder.'

We think Wimbush is not only the better rule but also more accurately reflects the state of the law in Michigan.

Bufkin relies primarily on People v. Dupuis, 371 Mich. 395, 124 N.W.2d 242 (1963). This reliance is not so much misplaced as it is overplaced. In Dupuis the Court refused to instruct on lesser offenses, charging the jury that defendant was either guilty of first degree murder or he was innocent. However, in that case 'the undisputed proofs showed that the murder was committed in the perpetration of a robbery'. Dupuis, 371 Mich. 401, 124 N.W.2d 245. We do not quarrel with this holding. But we think it is wrong to extend its application, as Bufkin did, to all cases, regardless of the factual setting, in which felony murder is charged.

The correct rule--the one adopted in Wimbush and the one we will apply to the facts of this case--is set forth in People v. Carter, 387 Mich. 397, 422--423, 197 N.W.2d 57, 69 (1972):

'In a criminal case, if there is a request to charge as to a lesser included offense, but there is no evidence of such a lesser included offense, or the facts are such that the court or the jury would be obliged to conclude that the defendant was guilty of the offense charged or not guilty, no charge as to a lesser included offense need be given.

'But if the evidence is subject to different interpretations that would justify a finding of a lesser offense, a charge as to such lesser offense, especially if one is requested, should be given.' ²

Thus, the question becomes: Do the facts of the instant case admit to an interpretation which would justify a jury returning a verdict of a lesser offense? If they do, then we must reverse.

The only eyewitness testimony was that of Joseph Pruitt. He testified that at approximately 12:30 a.m. on December 26, 1971, he and David Bowers were at Pruitt's Detroit apartment when defendant telephoned and asked if he could come over to the apartment. (Defendant was a casual acquaintance of Pruitt's.) Shortly thereafter defendant and his cousin, William Smith, Jr., arrived at the apartment asking for money. When the request was refused, defendant and his cousin tied up Pruitt and Bowers and took several items from the apartment and placed them in garbage bags. The four men then left the apartment, got into a car occupied by two others, and drove to defendant's grandmother's house. After leaving the stolen goods there, the group of six then drove back to Pruitt's apartment. All of the men except the driver went back into the apartment and removed three television sets, but took them back when they discovered the car had been driven away.

Defendant and the four others then walked to a bus stop. Neither defendant nor anyone else in the group had any stolen goods in his possession. Pruitt told defendant's cousin that he would not get on a bus. Defendant's cousin consented, and when the bus arrived Pruitt waited until the others had boarded and then walked away. Pruitt testified that it was between 1:30 a.m. and 2 a.m. when he left the group. The police received a report of a shooting at approximately 2:45 a.m., which led them to the body of David Bowers. The body was found about a mile and a half from the bus stop.

In order to convict a defendant of felony murder under M.C.L.A. § 750.316; M.S.A. § 28.548, the prosecution must establish that the murder occurred in the perpetration or attempt to perpetrate one of the enumerated felonies. A robber is engaged in the perpetration of the crime 'while he is endeavoring to escape and make away with the goods taken. And a homicide committed Immediately after a robbery, apparently for the purpose of Preventing detection,' is felony murder. (Emphasis supplied.) People v. Podolski, 332 Mich. 508, 518, 52 N.W.2d 201, 205 (1952); see People v. Bowen, 12 Mich.App. 438, 162 N.W.2d 911 (1968); People v. Goree, 30 Mich.App. 490, 186 N.W.2d 872 (1971). Likewise the New York Court of Appeals said that in order for a killing to be felony murder it

'must occur while the actor or one or more of...