People v. Townes, Docket No. 13155
| Decision Date | 17 January 1973 |
| Docket Number | No. 1,Docket No. 13155,1 |
| Citation | 44 Mich.App. 383,205 N.W.2d 258 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Leslie TOWNES, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
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., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.
Before LESINSKI, C.J., and FITZGERALD and VanVALKENBURG, * JJ.
The defendant was convicted by a jury of second-degree murder, M.C.L.A. § 750.317; M.S.A. § 28.549, sentenced to a prison term of 8 to 20 years and appeals as of right.
Although some of the facts are in conflict, it appears that they may be reasonably summarized in the following manner. The defendant harbored the ostensible idea that one Odom McMillion, an employee of Jesse Burnett, the deceased, had been seeing his wife, from whom he had been separated for about 3 years. On August 2, 1971, defendant, while travelling to see a relative with his wife and two children, stopped at the business where McMillion was employed for the express purpose of squaring things with Mr. McMillion, who was found sitting on a bench inside of the store. Harsh language between the two followed; and Mr. Burnett, having observed the acerbated situation, extracted a revolver from his desk and ordered the two outside, if they wanted to fight, and told defendant that he should leave. At first Mr. Townes refused but eventually acquiesced when he observed that the deceased meant business. Defendant returned to his car while Mr. Burnett returned the gun to its holster. Thereafter, shots were fired. The medical examiner testified that at least three bullets entered the body of the deceased. Other testimony showed that the deceased has been attempting to escape while the firing continued. The police officers testified that no bullets were fired from the gun being carried by Mr. Burnett. After the shooting was over, the defendant left; however, not before some shots were fired, apparently by Mr. McMillion.
The defendant raises three questions for our consideration. These will be examined separately.
First, the defendant contends that the jury verdict was against the great weight of the evidence. This issue however, is not properly before the Court for the reasons set forth in People v. Smith, 36 Mich.App. 180, 181, 193 N.W.2d 397, 398 (1971):
Also, see People v. Mattison, 26 Mich.App. 453, 459--460, 182 N.W.2d 604 (1970); People v. Paintman, 28 Mich.App. 590, 184 N.W.2d 458 (1970); People v. Hearndon, 31 Mich.App. 113, 187 N.W.2d 557 (1971); People v. Williams, 39 Mich.App. 458, 463, 197 N.W.2d 858 (1972); People v. Jackson, 41 Mich.App. 530, 200 N.W.2d 465 (1972).
Secondly, the defendant asserts that the people failed to prove the element of malice beyond a reasonable doubt so as to sustain the conviction of second degree murder.
Malice has been defined by our Supreme Court in People v. Hansen, 368 Mich. 344, 350--351, 118 N.W.2d 422, 425 (1962), as follows:
Malice may be inferred from the totality of the circumstances surrounding the crime. People v. Nelson, 35 Mich.App. 368, 192 N.W.2d 682 (1971); People v. McKeller, 30 Mich.App. 135, 185 N.W.2d 905 (1971); and People v. McBride, 30 Mich.App. 201, 186 N.W.2d 70 (1971). Further, it has been held that the presence of malice may be inferred from the use of a deadly weapon. People v. McKeller, Supra, and People v. Garcia, 36 Mich.App. 141, 193 N.W.2d 187 (1971).
Four witnesses testified at the trial that the deceased had his gun in his holster when the defendant started shooting and that the latter continued the action while Mr. Burnett was heading for cover. Accordingly, we conclude that the evidence adduced at the trial was sufficient, if believed by the jury, to establish malice beyond a reasonable doubt.
Lastly, the defendant contends that the instructions to the jury were erroneous in three different aspects.
First, he asserts that undue emphasis was placed on the charge of second degree murder. A review of the record fails to substantiate that claim. Although a greater number of lines of transcript were used to set forth the second degree murder charge, it cannot be said that undue emphasis was placed on that charge. In the absence of any objection below, the question is not properly raised on appeal.
Secondly, the contention is made that the instructions with regard to manslaughter were erroneous. A review of the charge in this respect indicates that the trial court properly apprised the jury of the elements of manslaughter. Further, the defendant's complaint that the court used, in reference to manslaughter, the expression 'there need be no malice' rather than the words 'without malice', is totally without merit. Either expression would convey the same meaning to the members of the jury.
The third and most important item deals with the matter of self-defense. The...
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People v. Townes
...Appellant was sentenced to serve a term of 8 to 20 years in prison and his conviction was affirmed by the Court of Appeals, 44 Mich.App. 383, 205 N.W.2d 258 (1973). Leave to appeal was thereafter granted by this Court, 389 Mich. 796 In the instant case we must determine if the unobjected to......
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State v. Haakenson
...secondarily on the conduct of deceased. The elements stated above are required to be shown in a number of states. People v. Townes, 44 Mich.App. 383, 205 N.W.2d 258 (1973); Commonwealth v. Daniels, 301 A.2d 841 (Pa. 1973); State v. Johnson, 277 Minn. 368, 152 N.W.2d 529 It is apparent that ......