People v. Trilck
| Decision Date | 31 July 1970 |
| Docket Number | Docket No. 7631,No. 1,1 |
| Citation | 25 Mich.App. 634,181 N.W.2d 674 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Russell TRILCK, Jr., Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Ivan E. Barris, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Deerengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief Appellate Div., Gerard A. Poehlman, Asst. Pros. Atty., for plaintiff-appellee.
Before McGREGOR, P.J., and J. H. GILLIS and O'HARA *, JJ.
Defendant was convicted by a jury of second degree murder. Upon denial of a motion for a new trial, defendant appeals of right to this court. M.C.L.A. § 750.317 (Stat.Ann.1954 Rev. § 28.549).
Defendant entered a bar where the decedent was working. The record indicates that she refused to go home with the defendant at closing time. Thereupon he pulled a gun, shot her, and then shot himself. He recovered. She did not.
The only issue presented to this court on appeal is whether the trial court committed reversible error when it declined to give the defense-proffered instructions on causation and lesser-included offenses of second degree murder.
Defense counsel asserts that because there is a factual dispute between the doctors who testified as to the cause of death, the court should have given his suggested instructions. Defendant argues that since a jury might have found that the deceased died of blood clots in the lungs and not as a result of being shot, instructions on assault with intent to murder were in order.
The trial judge refused defense counsel's instructions on the ground that there was not sufficient evidence presented on causation. He noted that nothing on the record refuted the fact that the death resulted directly from the shooting.
It is true, as defense counsel urges, that there was a conflict in the medical testimony as to whether the immediate cause of death was a pulmonary embolism or labor pneumonia, but there was no disagreement that the inducing cause was the previously inflicted gunshot wound.
If a request is made to instruct on a lesser offense, the right to the instruction depends upon the evidence.
People v. Williams (1968), 14 Mich.App. 186, 189, 165 N.W.2d 296, 298.
"If, on the other hand, no evidence has been presented to...
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People v. Thomas
...Mich.App. 224, 232--233, 191 N.W.2d 66 (1971).2 See People v. Loncar, 4 Mich.App. 281, 289, 144 N.W.2d 801 (1966); People v. Trilck, 25 Mich.App. 634, 181 N.W.2d 674 (1970); People v. Membres, Supra, 34 Mich.App. p. 228, 191 N.W.2d 66; People v. Hearn, 354 Mich. 468, 93 N.W.2d 302 (1958).Si......
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People v. Jacobs, Docket No. 69282
...no evidence to warrant giving the requested instructions, the trial court did not err in declining to give them. People v. Trilck, 25 Mich.App. 634, 181 N.W.2d 674 (1970). Reversed and remanded for a new * Allen E. Keyes, 24th Judicial Circuit Judge, sitting on Court of Appeals by assignmen......