People v. Thompson

• Citation: 265 N.W.2d 632,81 Mich.App. 348
• Decision Date: 22 February 1978
• Docket Number: Docket No. 26215
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert G. THOMPSON, Defendant-Appellant. 81 Mich.App. 348, 265 N.W.2d 632
• Court: Court of Appeal of Michigan (US)

Page 632

265 N.W.2d 632

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert G. THOMPSON, Defendant-Appellant.

Docket No. 26215.

81 Mich.App. 348, 265 N.W.2d 632

Court of Appeals of Michigan.

Feb. 22, 1978.

Released for Publication May 10, 1978.

[81 MICHAPP 350] James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert Kaczmarek, Pros. Atty., for plaintiff-appellee.

Before CAVANAGH, P. J., and BRONSON and KELLY, JJ.

CAVANAGH, Presiding Judge.

For the reasons stated in People v. Fountain, 71 Mich.App. 491, 248 N.W.2d 589 (1976), in People v. Wright, 80 Mich.App. 172, 262 N.W.2d 917 (1977), and in Judge Riley's dissent in People v. Till, 80 Mich.App. 16, 263 N.W.2d 586 (1977), we disagree with our brother's conclusion that reversible error did not result from the trial court's failure to instruct the jury on the element of malice in the felony-murder charge. We join, however, in his disposition of the other issues raised.

For this reason, we would reverse the first-degree murder conviction and remand to the trial court. Upon remand, as we find no error relating to the armed robbery conviction, we would allow the prosecutor to choose either to have the armed robbery conviction and sentence stand or to have it vacated and to retry the defendant on armed robbery and first-degree murder.

KELLY, Judge (dissenting).

On August 18, 1975, [81 MICHAPP 351] defendant was convicted by a Saginaw County Circuit Court jury of armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797, and first-degree murder, M.C.L.A. § 750.316; M.S.A. § 28.548. He was sentenced to two concurrent terms of life imprisonment on September 17, 1975. He appeals as of right. Three issues merit discussion.

First of all, the parties agree that the conviction and sentence for armed robbery the lesser charge, should be vacated. I would so order. This Court held in People v. Anderson, 62 Mich.App. 475, 482, 233 N.W.2d 620 (1975):

"To punish defendant both for the greater offense, that is, first-degree (felony) murder, and for the included offense, which would be in this case armed robbery, would constitute double punishment in violation of the double jeopardy clauses of the United States Constitution and the Michigan Constitution."

Since the murder took place during the perpetration of the armed robbery, the armed robbery conviction must be reversed. See also People v. Stewart (On Rehearing ), 400 Mich. 540, 549-550, 256 N.W.2d 31 (1977); People v. Martin, 398 Mich. 303, 309-310, 247 N.W.2d 303 (1976); People v. Longuemire, 77 Mich.App. 17, 24, 257 N.W.2d 273 (1977); People v. Goodchild, 68 Mich.App. 226, 236-237, 242 N.W.2d 465 (1976), lv. den., 397 Mich. 830 (1976).

Defendant next argues that the trial court committed reversible error by failing to instruct the jury on the element of malice, and, in effect, letting the jury imply malice from the underlying armed robbery to the killing. Defendant did not object. I would hold that the failure to object precludes this Court from reviewing the issue because there is no manifest injustice. People v. [81 MICHAPP 352] Dorrikas, 354 Mich. 303, 316, 92 N.W.2d 305 (1958). I say that with full knowledge that there is abundant authority to the contrary. In People v. Fountain, 71 Mich.App. 491, 248 N.W.2d 589 (1976), the court implied that the issue need not be preserved for review by timely objection because it withdrew an essential element from jury consideration, namely, malice. There is now a split of authority in this Court as to the existence and the perimeters of the common law felony-murder doctrine in Michigan. Whatever the rule is determined to be by the Supreme Court in future precedent, I have little hesitation in saying what the rule ought to be. The rule ought to be that whether the instruction uses the word murder or killing in connection with the underlying felony, an omission to instruct on malice will not be reversible error unless properly preserved for review by objection or by the trial court's refusal to give a properly requested instruction.

The right to a trial by jury allows a defendant a common sense buffer between the complicated legalistic language of the law and the conscience of the community. Much of the debate between varying legalistic points of view is lost on a jury of laymen. Where legislatures and courts disagree, why do we posit reversible error on a surmise that a jury has been misled? It is possible for the layman to use murder and killing interchangeably even if incorrectly. It is conceivable that a legislature could do likewise.

Our Court has recently issued conflicting opinions on this issue. People v. Till, 80 Mich.App. 16, 263 N.W.2d 586 (1977); People v. Wright, 80 Mich.App. 172, 262 N.W.2d 917 (1977). I would follow the Till court in finding the existence of common law felony-murder in this state. The Till majority [81 MICHAPP 353] found that such a common law felony-murder rule does not require the giving of an instruction on malice to the jury because malice is supplied (imputed) from a killing which takes place during the perpetration of or attempt to perpetrate one of the enumerated dangerous felonies. See People v. Allensworth, 401 Mich. 67, 75, 257 N.W.2d 81 (1977) (Coleman, J., dissenting). But see People v. Wright, supra; People v. Fountain, supra; People v. Burton, 74 Mich.App. 215, 226, 253 N.W.2d 710 (1977). The Fountain court defined malice in accordance with the Michigan Proposed Criminal Jury Instructions, 16:3:01. ¹ But malice is a state of mind and does not a jury which convicts for killing which takes place in the course of arson, robbery, rape, burglary, or kidnapping find a "life endangering state of mind" ² on the part of the felon inherently inseparable from the killing? The very least we can say is that the law is not clear as the split between panels on our Court indicates. That being the case, trial judges, prosecuting attorneys and defense attorneys should not be held to a...