People v. Treichel

• Decision Date: 10 December 1924
• Docket Number: No. 178.,178.
• Citation: 200 N.W. 950,229 Mich. 303
• Parties: PEOPLE v. TREICHEL et al.
• Court: Michigan Supreme Court

229 Mich. 303

200 N.W. 950

PEOPLE

v.TREICHEL et al.

No. 178.

Supreme Court of Michigan.

Dec. 10, 1924.

Reinhold Treichel, Alvin Keller, and Leon Long were convicted of manslaughter, and bring exceptions before sentence. Affirmed.

Argued before McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. John J. Sterling and Wm. H. Andrews, both of Benton Harbor, for appellants.

Charles W. Gore, Pros. Atty., and Geo. H. Bookwalter, Asst. Pros. Atty., both of Benton Harbor (Andrew Dougherty, Atty. Gen., of counsel), for the People.

WIEST, J.

Charged, in common-law form, with the crime of murder, defendants stand convicted of manslaughter, and prosecute review on exceptions before sentece.

Henry Gerling, aged 85, lived alone, in the country near Watervliet, Berrien county. April 14, 1921, a neighbor, noticing no light in Mr. Gerling's house for many nights, went over and found Mr. Gerling tied with wire, hands and feet, to the head and foot of his bedstead, with his body suspended off the side of the bed and one cheek bone rubbed raw where it touched the floor. He had been dead so long mortification was present. On a table lay his spectacles and Bible, underneath set his slippers, while books and papers were scattered about the room, and in another room a bed had been ransacked, and in the basement a safe had its combination and hinges knocked off and a hole broken in its outer covering. On the safe lay a small stick of firewood to which some hair adhered, and by the safe lay a sledge hammer and an iron wedge. ‘Untie Henry Gerling’ was found chalked on a nearby roadside mail box on April 2d, and some distance away on an auction notice on a tree was chalked ‘Henry Gerling.’ Four boys, on March 31, 1921, lived in the vicinity of the Gerling home—Howard Long, then 12 years of age; Leon Long, his brother, 13; Alvin Keller, 13; and Reinhold Treichel, 14. In October, 1923, Howard Long was in the jail of Berrien county on another charge, and the sheriff enlisted the services of a boy prisoner to find out what Long knew about the Gerling matter. The sheriff had several sessions with Long in which he denied all knowledge of the Gerling murder. In one interview, when Long was seated, the sheriff slapped him. Long finally confessed and was a witness at the trial for the prosecution. He testified the three defendants and himself planned the entering of the Gerling house, and, on or about March 31, 1921, in the evening, they went to a vacant house across the road from the Gerling home, there waited until the light in the Gerling home was put out, then his brother Leon and the other two boys, taking a sledge hammer with them, went to the Gerling home while he remained on watch, and later he went home without seeing the other boys; that he learned from them that they entered the house, found Mr. Gerling in bed, struck him with a small stick of firewood, tied him with wire to the bedstead, attempted to break open the safe, then went upstairs, heard Mr. Gerling groan and left. Defendants were arrested and confessed, but Treichel's confession was excluded because of the brutality of the sheriff in obtaining it. The sheriff admits he seized Treichel by the hair and rubbed his nose. The defendants, when arrested, denied their guilt, and at the trial repudiated their confessions, claiming they were induced to make the same through fear, brutality, hope of help, and promises.

While impaneling the jury, the trial judge stated that, under the information, a conviction might be had for murder in the first or second degree or manslaughter, and at the close of the trial so instructed the jury.

Counsel for defendants strenuously insist this was error, claiming the information charged murder in the first degree, and it was the duty of the trial judge, under the evidence and their written request, to instruct the jury to confine their deliberations to such degree, and, if unable to convict of murder in the first degree, they must find defendants not guilty. Counsel claim they are supported in taking this position by many decisions of this court. In this they are in error. The information charged murder without specifying method, or means, or circumstances, and under the information, murder in either degree, or manslaughter, might be found. This court has repeatedly held, where the charge as laid includes murder in the first degree, and the proofs establish such degree, and no lesser degree, it is not error for the court to instruct the jury that, in order to convict, murder in the first degree must be found. But this court has not held, under a charge like here laid, the court must instruct the jury to find murder in the first degree or acquit. Whether such an instruction may be given or not depends upon the evidence. While the statute constitutes murder committed in the perpetration of burglary as in the first degree, it does not exclude all lesser degrees if the evidence warrants.

In many cases such a holding as here asked would make it extremely hazardous for the people in laying the charge. Suppose the charge is murder in the second degree, and the proofs show murder in the first degree, must there be an acquittal? This information charged murder in the first and second degrees, and this was inclusive of manslaughter. The evidence left it open for the jury to find defendants guilty of manslaughter.

While Mr. Gerling was wired to his bedstead during the course of a burglary, it is apparent he was not then killed, for he rolled off the bed. How long he lay unconscious before he rolled off the bed, and how long he lived after he rolled off no one knows. Suppose the jury found, in accordance with the testimony of the undertaker who washed the body of the deceased, there was no bruise except where the cheek bone rubbed on the floor, then they would have had the case of three boys tying the old gentleman in bed and leaving him there alive and endeavoring to incite some one to go and untie him. Conceding the verdict might have been for murder in the first degree, because death was occasioned by act committed in the perpetration of a burglary, was such a verdict the only one permissible? We cannot so hold. We think the evidence left the question of degree and the included crime of manslaughter to the jury, and the court avoided instead of committed error in so submitting it. In People v. Utter, 217 Mich. 74, 185 N. W. 830, we held:

‘A simple information charging the commonlaw essentials of murder may be laid, and the jury convict of any degree which the proof establishes.’

The statute (Comp. Laws 1915, § 15194) requires the jury to determine the...