People v. Townes

Decision Date21 May 1974
Docket NumberD,No. 7,7
Citation218 N.W.2d 136,391 Mich. 578
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Leslie TOWNES, Defendant-Appellant. ec. Term.
CourtMichigan Supreme Court

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Robert A. Reuther, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

State Appellate Defender Office by Judith K. Munger, Asst. Defender, Detroit, Sharon M. Sloan, Researcher on brief, for defendant-appellant.

Before the entire Bench Except FITZGERALD, J.

SWAINSON, Justice.

On August 2, 1972, appellant Charles Leslie Townes entered deceased Jessie Burnett's tire store in the City of Detroit. Appellant proceeded directly to an employee named Odom McMillion and began to loudly accuse McMillion of dating his wife. McMillion replied that he did not know what defendant was referring to and wanted to have no trouble with him.

Shortly after the verbal confrontation began, Jessie Burnett intervened and ordered appellant to leave the store. Burnett added that if the man had any desire to continue their argument they should do so outside of his store.

When appellant refused to leave, Burnett went into his office and obtained a pistol. He returned with the gun at his side and without pointing it at appellant, again ordered him to leave. Appellant Protested Burnett's action but soon raised his hands and backed out of the store followed by Burnett.

The trial testimony diverges at this point. All of the prosecution's witnesses generally testified that after appellant backed out of the store, Burnett placed the gun in a holster he was wearing, turned and started to walk to the inner part of the store. Appellant then suddenly reentered the store and began shooting at Burnett, fatally wounding him.

Appellant stated a markedly different version of the fatal shooting. He testified that he was very frightened when Burnett confronted him with the gun and remained in fear as Burnett holstered the gun but kept his hand on it. While the men were still facing each other Burnett made a 'very sudden motion' that appeared to appellant to be an effort to draw the gun back out of the holster. Appellant stated that he then instantaneously reacted by reaching for a gun he carried in his belt and shot Burnett in what he believed was self-defense.

After the trial testimony was completed, the Court instructed the jury on murder in the second degree, manslaughter and self-defense. The court, defining manslaughter, stated:

'Now the next offense, members of the jury is known as manslaughter. Manslaughter is the unlawful killing of one human being by another. It may be an intentional killing. The Killer may intend to kill the deceased but is brought about by provocation that is, the killer may be excessively provoked and as a result of such provocation and while under its spell the accused kills the deceased. The killing must be not only under great provocation in order to reduce the gravity of the offense to manslaughter, but it must have been done while still in the heat of passion and before passions have had time to subside and the blood to cool. It must be done not only under great provocation, but under the influence of passion, but before the passions have had time to subside and reason to resume its normal course.

'Now in manslaughter, members of the Jury, the elements which make up the crime of manslaughter are as follows: the killing of another without legal justification; two, there need be no intention to kill; three, their need of--there need be no malice; fourth, there must be an unlawful act by accused; five, death must be the direct consequence of such unlawful act.'

The Court gave the following instructions on self-defense:

'Now the Defense in this case, members of the Jury, is a defense of self-defense, and I charge you, members of the Jury, first an aggressor is not necessarily a person who strikes the first blow in a personal encounter, or makes the first demonstration indicating an intent to strike. But if a person with a malice and hatred in his heart towards such a person seeks to provoke a difficulty either by acts or words with the intent to induce such other person to strike the first blow, or to make the demonstration in order to form a pretext to take his life, then the Defendant could not avail himself of the right of self-defense. If the defense--Defendant was the aggressor in the conflict, he cannot invoke the doctrine of self-defense as an excuse of the killing Unless he was at that time in immediate danger of losing his own life, or suffering some grievous bodily injury and that there was no retreat for safety open for him, and his only safety lay in shooting the deceased. Self-defense in proper cases is the right of every person, it will not justify taking of a human life unless the Jurors shall be satisfied from the testimony first that the Defendant was not the aggressor in bringing on the difficulty, that is, he was without fault, second, that there existed at the time of the shooting in his mind a present and impending necessity to shoot in order to save himself from death or some great bodily harm; and third, that there was--excuse me, there must have been no way open whereby he could have retreated as it appeared to him at the time of the shooting to a place of safety and thus avoid the conflict. Unless you find all three of these facts are established in the case, the plea of self-defense fails. The burder of proof of all such matters is upon the people to show that the respondent is guilty of the offense charged, and the People's testimony must be such as to satisfy the Jorors that the killing was not done in self-defense. The burden is not upon the Defendant who makes the defense of self-defense to satisfy the Jury of the truth of his claim.' (Emphasis added.)

After approximately one and one-half hours of deliberation the jury asked for clarification of the elements of second degree murder and manslaughter and the difference between the two offenses. In response to their inquiry, the Court stated:

'THE COURT: Well, I think instead of going through all of the definitions, I think maybe I can give you the substance of it. I perhaps should say that murder in the second degree is composed of all the elements of murder in the first degree, except that in murder in the second degree you do not have any deliberation and premediation. * * * Now I don't think there is any need for me to define murder again to you, because I think I have defined that.

'Now the elements of manslaughter are as follows: the killing of another without legal justification; two, there need be no intention to kill; three, there need be no malice; fourth, there must be unlawful act by the accused; five, death must be the direct consequence of such unlawful act. Now that is as far as I think I can go without, you know, going into detail as I have before. But I think that more or less is a substance of I think what you are inquiring about, is that correct?

'MR. FOREMAN: Yes, sir.

'THE COURT: All right.'

No objections were made to any of the instructions and the jury returned a verdict of guilty of second degree murder. 1 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 (1973).

In the instant case we must determine if the unobjected to jury instructions were so erroneous that appellant was denied a fair trial. Normally we will not reverse a conviction on the basis of errors found in the jury instructions unless an objection to the erroneous portion of the instruction was raised at trial. 'Nevertheless, * * * this Court, in the exercise of supervisory control over all litigation, has often asserted the right to consider manifest and serious errors although objection was not made by the party who appeals. The inherent power of this Court to prevent fundamental injustice is not limited by what appellant is entitled to as a matter of right.' People v. Dorrikas, 354 Mich. 303, 316, 92 N.W.2d 305, 307 (1958) (per T. M. Kavanagh, J.).

For the reasons expressed below we have concluded that fundamental errors were present in the disputed instructions and necessitate granting defendant a new trial. We proceed to consider each portion of the instructions in turn.

I

In People v. Murray, 72 Mich. 10, 16, 40 N.W. 29, 32 (1888), the Court observed that in a criminal case the trial judge has the responsibility to see that the case goes to the jury in an intelligent manner '* * * so that they may have a clear and correct understanding of what it is they are to decide.' Similarly, in People v. Liggett, 378 Mich. 706, 714, 148 N.W.2d 784, 788 (1967), the Court wrote:

'It is settled law of this State that the trial judge should instruct the jury in criminal cases as to general features of the case, define the offense and indicate (that which) is essential to prove to establish the offense, even in the absence of request. A case may be reversed because the charge omits a legally essential ingredient. People v. Prinz, 148 Mich. 307, 111 N.W. 739; People v. Kanar, 314 Mich. 242, 254, 22 N.W.2d 359; People v. Hearn, 354 Mich. 468, 93 N.W.2d 302. Similarly, without a request, a case may be reversed because of an erroneous or misleading charge as opposed to one which merely omits a pertinent though not legally necessary point. People v. MacPherson, 323 Mich. 438, 488, 35 N.W.2d 376 et seq.; People v. Guillett, 342 Mich. 1, 7, 69 N.W.2d 140; People v. Oberstaedt, 372 Mich. 521, 526, 127 N.W.2d 354. Defendant has a right to have a properly instructed jury pass upon the evidence. People v. Visel, 275 Mich. 77, 81, 265 N.W. 781.'

See also, People v. Reece, 9 Mich.App. 108, 155 N.W.2d 870 (1967); People v. Sherman, 14 Mich.App. 720, 166 N.W.2d 22 (1968).

In the present case the trial court...

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