People v. Turner

• Decision Date: 06 July 1983
• Docket Number: Docket No. 59265
• Citation: 336 N.W.2d 217,125 Mich.App. 8
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence TURNER, Defendant-Appellant. 125 Mich.App. 8, 336 N.W.2d 217
• Court: Court of Appeal of Michigan — District of US

Page 217

336 N.W.2d 217

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence TURNER, Defendant-Appellant.

Docket No. 59265.

125 Mich.App. 8, 336 N.W.2d 217

Court of Appeals of Michigan.

Submitted Nov. 17, 1982.

Decided April 18, 1983.

Released For Publication July 6, 1983.

[125 MICHAPP 9] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and John Scavone, Asst. Pros. Atty., for the People.

Alan L. Kaufman, Detroit, for defendant-appellant on appeal.

[125 MICHAPP 10] Before WAHLS, P.J., and KELLY and LAMBROS ^*, JJ.

PER CURIAM.

Defendant was found guilty, following a bench trial, as an aider and abettor of involuntary manslaughter, M.C.L. Sec. 750.329; M.S.A. Sec. 28.561. He appeals as of right.

On September 12, 1980, defendant furnished loaded firearms to the two women with whom he lived and directed that a "trial by battle" would be held to resolve a dispute which had arisen. At defendant's instruction, Ms. Tompkins aimed her gun, which had no safety device, at the other woman. The gun discharged, killing the other woman.

The trial court found that, while the gun had been intentionally pointed, the shooting was an accident and neither defendant nor Ms. Tompkins had specifically intended to kill Ms. Smith. The court determined that defendant had aided and participated in the shooting by furnishing the guns for the trial by battle.

The statute under which defendant was convicted provides that a person who injures any other person by the discharge of any firearm "pointed or aimed, intentionally but without malice, * * * shall, if death ensue from such * * * injury, by deemed guilty of the crime of manslaughter", M.C.L. Sec. 750.329; M.S.A. Sec. 28.561. Defendant asserts that one cannot be convicted as an aider and abettor of involuntary manslaughter because intent is not an element of the crime, and aiding and abetting presupposes an intent. Since no malice is necessary for the substantive offense, defendant reasons there was no intent which could be shared by the aider and abettor.

[125 MICHAPP 11] M.C.L. Sec. 767.39; M.S.A. Sec. 28.979 provides that one who "procures, counsels, aids, or abets" in the commission of an offense may be tried and convicted as if he had directly committed the offense.

"In criminal law the phrase 'aiding and abetting' is used to describe all forms of assistance rendered to the perpetrator of a crime. This term comprehends all words or deeds which may support, encourage or incite the commission of a crime. It includes the actual or constructive presence of an accessory, in preconcert with the principal, for the purpose of rendering assistance, if necessary. 22 CJS, Criminal Law, Sec. 88(2), p 261. The amount of advice, aid or encouragement is not material if it had the effect of inducing the commission of the crime. People v Washburn, 285 Mich 119, 126; 280 NW 132 (1938)." People v. Palmer, 392 Mich. 370, 378, 220 N.W.2d 393 (1974).

Mere presence, even with knowledge that an offense is about to be committed or is being committed, is not enough to make a person an aider or abettor; nor is mere mental approval, passive acquiescence or consent sufficient. People v. Burrel, 253 Mich. 321, 323, 235 N.W. 170 (1931).

To be convicted as an aider and abettor, the defendant must either himself possess the required intent or participate while knowing that the principal possessed the required intent. People v. Karst, 118 Mich.App. 34, 39, 324 N.W.2d 526 (1982). Although proof of specific intent is essential for aider and abettor liability for specific intent crimes, People v. Wirth, 87 Mich.App. 41, 46, 273 N.W.2d 104 (1978), it does not follow that there can be no aider and abettor liability for a crime which requires neither specific intent nor malice.

While the question has not been addressed by an appellate court in this state, a review of case law from other jurisdictions lends support for the proposition[125 MICHAPP 12] that one can be an aider and abettor to the offense of involuntary manslaughter even though intent is not an element of the offense itself. See, e.g., Fitzhugh v. State, 207 Ark. 117, 179 S.W.2d 173 (1944); State v. Newberg, 129 Or. 564, 278 P. 568 (1929); State v. McVay, 47 R.I. 292, 132 A. 436 (1926); State v. Morris, 224 Tenn. 437, 456 S.W.2d 840 (1970); Wade v. State, 174 Tenn. 248, 124 S.W.2d 710 (1939); Mendez v. State, 575 S.W.2d 36 (Tex.Cr.App., 1979). Cf., People v. Pitts, 84 Mich.App....