People v. Vail

Citation227 N.W.2d 535,393 Mich. 460
Decision Date07 April 1975
Docket NumberNo. 6,6
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. George Herbert VAIL, Defendant-Appellant. 393 Mich. 460, 227 N.W.2d 535
CourtSupreme Court of Michigan

L. Brooks Patterson, Pros. Atty., Oakland County, by T. S. Givens, Deputy App. Counsel, Pontiac, for plaintiff-appellee.

Douglas Chartrand, Pontiac, for defendant-appellant.

Before the Entire Bench except FITZGERALD, J.

T. M. KAVANAGH, Justice.

Defendant, George Herbert Vail, was charged with first-degree murder 1 for his participation in a shooting incident which caused the death of David Rivas. Tried in Oakland county circuit court, defendant was found guilty of voluntary manslaughter by a jury on June 16, 1970 and he was later sentenced to a prison term of 7 1/2 to 15 years. His appeal to the Court of Appeals 2 resulted in affirmance on September 25, 1973. This Court granted the defendant's application for leave to appeal on March 21, 1974. 3

As we are convinced that the trial court was in error for instructing the jury to consider the charge of first-degree murder, we must reverse the defendant's conviction and remand the case to the circuit court for retrial.


The issue we find decisive 4 was raised on several occasions during the course of the trial by means of a motion to dismiss the first-degree murder charge. Each time the defense offered such a motion it was denied. Stated succinctly the issue reads:

Taking the evidence in the light most favorable to the prosecution was there any evidence upon which a jury could predicate a finding of guilty of murder in the first degree?

The parties are in conflict on the facts only; there is no dispute about the law in this case. Both the prosecution and the defense agree that if the evidence is found to be lacking, reversal is required. This Court has so held on numerous occasions. People v. Stahl, 234 Mich. 569, 208 N.W. 685 (1926); People v. Marshall, 366 Mich. 498, 115 N.W.2d 309 (1962); People v. Hansen, 368 Mich. 344, 118 N.W.2d 422 (1962).

Perhaps the best explanation for the logic of this rule is found in People v. Gessinger, 238 Mich. 625, 628, 214 N.W. 184, 185 (1927), where Justice Bird, writing for the majority stated:

'I think it is evident to most practitioners of experience that it would be much easier to secure an acquittal if the defendant were only charged with the lesser offense than it would be were he charged with all three offenses. The tendency of jurors is to compromise their differences. Where there is only one charge, they are obliged to meet the question squarely by 'Yes' or 'No,' or disagree, but, where the charges are three, the juror who thinks there should be no conviction, and the juror who thinks that a conviction should be had of the greater offense is quite liable to agree upon a conviction of the lesser offense.'

Thus, where a jury is permitted consideration of a charge unwarranted by the proofs there is always prejudice because a defendant's chances of acquittal on any valid charge is substantially decreased by the possibility of a compromise verdict. For this reason it is reversible error for a trial judge to refuse a directed verdict of acquittal on any charge where the prosecution has failed to present evidence from which the jury could find all elements of the crime charged.


While the facts are complex 5 and the testimony, at times, conflicting, the entire transaction which preceded the slaying can be split into three separate and distinct incidents. These incidents: The Robbery, The Firebombing, and The Shooting Incident, all occurred between the hours of 10:00 p.m. on August 26, 1969 to 1:00 p.m. on August 27, 1969 at the home of the defendant in the city of Hazel Park.

The Robbery

During the evening of August 26, 1969 between 10:00 and 11:00 p.m., three men, Martin Ray, William Powley and Mike 'Indian Joe' Lichtenberg, arrived at defendant's home. As the three men entered the darkened house they were confronted by two men with pistols and ordered to lie face down on the floor. While in this position each victim had a large amount of cash removed from his person by one of the two armed assailants. The victims were then instructed to crawl from the house and not to return.

One of the victims of the robbery, Martin Ray, testified that the defendant, during the course of the robbery, had threatened him with a pistol and had warned him '. . . not to try anything funny because he had the right to shoot us because we were trespassing in his home.'

Ray further testified that after the victims left the defendant's house they went to a telephone booth and called the defendant to demand the return of their money. During this conversation the defendant disclaimed any knowledge of the victims or the robbery.

The Firebombing

After the unsuccessful phone call, Ray visited a friend, Robert Lockhart, and persuaded him to return with Ray to the scene of the robbery. The two men arrived outside defendant's house at approximately 2:00 a.m. on August 27, 1969 (about 3--4 hours after the robbery). They were armed with at least two gasoline filled soft drink bottles. After igniting the fuses, both Ray and Lockhart threw their flaming bottles onto the proof and quickly departed.

Just before the bombing, the activity inside defendant's house had all but ceased for the evening. Defendant, Stevens and William Brown, a friend of the defendant, were watching television in the livingroom while the remaining occupants, defendant's wife, his two children, and another friend identified only as 'Myra' were in the bedrooms.

Suddenly Stevens saw a figure holding a fiery object emerge from the darkness on the front lawn. As the attacker began to throw the bombs, Stevens alerted the others of the danger.

When the firebombs struck the roof and the resultant flames started to engulf the front of the home, defendant hurried to the front bedroom to rescue his family. Defendant first roused his wife and then he removed his 10 days old son from the endangered room.

In the confusion that followed, defendant reentered the bedroom, grabbed his hunting rifle from the closet, loaded it and began to run from the room. However, he stumbled on the carpet and fell to the floor. The impact with the floor caused the rifle to discharge accidentally. Defendant then telephoned the Hazel Park police department and waited inside the house until police officers arrived at the scene. He then exited the house to extinguish the remaining flames, and to speak to the police. After their investigation was completed the officers departed and the defendant returned to his home.

The Shooting Incident

During the morning after the firebombing, August 27, 1969, defendant decided to move himself and his family to his mother-in-law's house to protect them from any further assaults. His wife and children left the house around 7:30 a.m., but he and the others present remained to pack the items that would be needed during their absence.

At approximately 1:30 p.m., defendant Brown and Stevens were packing items in the livingroom when a car containing four men stopped in front of defendant's house. Robert Lockhart was driving the car. Also seated in the front of the car was Martin Ray who was armed with a .22 pistol. In the back seat, behind the driver, was Ray's brother-in-law, David Rivas. Rivas was armed with a sawed-off shotgun. William Powley, the fourth man in the car, was seated next to Rivas. The car was parked on the lefthand side of the street facing oncoming traffic. From inside the car, Ray and Rivas shouted demands for the return of the stolen money.

When the car first arrived the defendant observed the sawed-off shotgun protruding from the left area window. Stevens and Brown sought cover in the livingroom. As the defendant went into the bedroom to get his rifle, a telephone call was made to the Hazel Park police department to advise them of the incident. With the police on the line, the defendant cautiously approached the doorway in order to get a better description of the automobile and its occupants. At this point shots were exchanged. While there is some conflict concerning certain facts, all witnesses agreed that (1) Rivas fired the first shot, and (2) defendant fired the second shot. It is also agreed that Rivas' shotgun blast struck the front of defendant's home while defendant's bullet penetrated the left side of the car and struck Rivas, inflicting the fatal injury. After the shots, the car departed and defendant went to the telephone to report the shooting to the police.

The First Degree Murder Charge

The legislature has defined the crime of first-degree murder as:

'All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.' M.C.L.A. § 750.316; M.S.A. § 28.548.

In the context of this prosecution, the legislature intended the elements of Premeditation and Deliberation to distinguish the offense of first-degree murder. 6 In People v. Morrin, 31 Mich.App. 301, 187 N.W.2d 434 (1971), then judge, now Justice Levin considered the importance of the distinction and the nature of these elements:

'First-degree and second-degree murder are separate offenses, carrying vastly different penalties, distinguished only by the requirement that a homicide punishable as first-degree murder be committed with premeditation and deliberation. If premeditation and deliberation are ill-defined, the jury is left with no objective standards upon which to base its verdict.

'Accordingly, it underscores the difference between the statutory degrees of murder to emphasize that premeditation and deliberation must be given independent meaning in a...

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