People v. Statkiewicz

• Decision Date: 03 June 1929
• Docket Number: No. 118.,118.
• Citation: 247 Mich. 260,225 N.W. 540
• Parties: PEOPLE v. STATKIEWICZ.
• Court: Michigan Supreme Court

247 Mich. 260

225 N.W. 540

PEOPLE

v.STATKIEWICZ.

No. 118.

Supreme Court of Michigan.

June 3, 1929.

Error to Circuit Court, Oakland County; Frank L. Doty, Judge.

Vincent Statkiewicz was convicted of murder in the first degree, and he brings error.Affirmed.

Argued before the Entire Bench, except POTTER, J.Walter E. Kelly and Frank J. Kane, both of Detroit (Chawke & Sloan, of Detroit, of counsel), for appellant.

Wilber M. Brucker, Atty. Gen., and Norman C. Orr, Pros.Atty., of Pontiac, for the People.

FEAD, J.

Defendant was convicted of murder in the first degree for shooting and killing Anthony Wasielewski on March 28, 1927, sentenced to life imprisonment, and brings error.

Defendant was 27 years of age and was born in Detroit.His sister Anna was married to Charles Wasielewski, brother of Anthony.About midnight the four returned from a neighbor's house to the home of Charles and Anna.Defendant had been drinking.He went to bed.A controversy arose between him and Charles, in the course of which Charles ordered defendant out of the house.Charles and Anna testified that this order came because defendant was swearing profusely in the presence of the children and that Charles threatened to take defendant out and give him a beating if he did not stop swearing.Defendant said he was ordered out because Charles said he did not like him and that Charles threatened to give him the beating of his life, calling on Anthony to be referee.Anna handed Charles the baby to prevent his fighting, and Charles handed it back.Defendant got up and dressed.He had a revolver in his coat pocket.Deceased stood nearby, with both hands in his hip pockets, and, according to the testimony of Charles and Anna, told and retold defendant that he could not ‘pack’ the gun out of the house.Defendant testified decedent said to him, ‘You ain't packing out of this house tonight,’ and, although defendant told him he had been ordered out, deceased repeated the assertion, moved closer, and finally came within two or three feet of defendant.Defendant told decedent not to come closer or he would shoot.Decedent whipped his right hand from his hip pocket, wheeled around, said ‘Shoot,’ or ‘Go ahead and shoot,’ or something similar, and defendant shot him, the bullet striking deceased in the leg, severing a large artery and causing his death.Defendant said that as deceased whipped out his right hand, he(defendant) stepped back and the gun exploded; that he was trembling and nervous.He did not testify that he had shot in self-defense nor that he deemed it necessary to shoot in order to protect his life or body.There was no evidence that deceased was armed or that defendant thought he was.There had been no prior trouble between them.Anna testified that when they came back to her home she told defendant that decedent had said that, ‘If he gets my brother,’he would kill defendant.Defendant said she told him to look out; ‘they will kill you.’

Defendant contends the verdict was against the great weight of the evidence, and there was no testimony to sustain malice or premeditation to constitute murder in the first degree.The testimony of Charles and Anna strongly indicated that defendant was in an ugly frame of mind and that deceased intended no more than to prevent defendant from taking the revolver with him for possible use in a fight with Charles, not to assault him.In view of defendant's failure to claim that he had been in fear of his life or body or that he shot in self-defense, the testimony was subject to a fair conclusion that there was no justification for the shooting.A deliberate and unjustifiable use of a deadly weapon implies malice.Defendant had warned deceased to keep away from him or he would shoot.He had ample time to form the intent to kill or seriously injure deceased.It was for the jury to say whether there was justification for the shooting and the intent with which it was done.

Read as a whole, the charge of the court was fair, correctly stated the law, and amply protected the rights of defendant.Defendant's counsel presented no requests to charge; but his present attorneys now take exception to certain isolated portions of the instructions.Error was alleged upon that portion reading:

‘If the respondent had, previous to the killing of Anthony Wasielewski, determined to kill or to inflict upon him some great bodily harm, less than the crime of murder, which might reasonably have been expected from the nature of the weapon and the manner of its use, to involve serious consequences to the life of Anthony Wasielewski and to carry out such intention willfully and deliberately kill him, he would be guilty of murder in the first degree.’

Counsel contend...