People v. Van Camp, 62

• Decision Date: 13 July 1959
• Docket Number: No. 62,62
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Parke VAN CAMP, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 726

97 N.W.2d 726

356 Mich. 593

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Parke VAN CAMP, Defendant and Appellant.

No. 62.

Supreme Court of Michigan.

July 13, 1959.

Elza H. Papp, Flint, Richard C. Fruit, Fling, for defendant and appellant.

Jerome F. O'Rourke, Pros. Atty., Flint, for plaintiff and appellee.

Before the Entire Bench.

EDWARDS, Justice.

As an aftermath of a beer party, participated in by 4 young men (3 of them married) and 2 unmarried young women, defendant got into a fight with 2 of his erstwhile friends. One of them, James Smallwood, died as a result of injuries suffered in the fight. Defendant was charged with first degree murder, tried and found guilty of the included charge of manslaughter by jury verdict. He received a sentence of 7 1/2 to 15 years.

On appeal defendant presents 7 claims of error.

We will deal first with those which pertain to claimed failure of proof of the corpus delicti, to claims of errors in the judge's charge to the jury, and to claims of prejudice on the part of the trial judge. For these, a more detailed version of the events of the evening are required.

Defendant Parke Van Camp was employed at a drugstore in Fling, and on June 21, 1956, worked until after 11:00 p. m. His wife and baby were out of the city and during the afternoon James Smallwood and Gerald Szabo came by the drugstore and borrowed the key to Van Camp's apartment.

These 2 were joined at the apartment by another mutual friend, Donald Feighner, and 2 yound women, Carroll Ann Thompson and Kathleen Ann Porter. At 11:30 Feighner picked up Van Camp at the drugstore and returned with him to the apartment.

The tesimony as to what transpired at the apartment is limited to the information that the 6 talked, watched TV and drank beer. It appears that 24 bottles had been purchased. The testimony indicates that the 2 girls split 1 bottle between them, and that each of the young men drank some.

At about 1:00 a. m. Miss Porter asked to be taken home and all 6 left the apartment in 2 cars, with 1 girl and 2 men in each. In place of proceeding to the girls' homes, they then drove out in the country and eventually arrived at a point on Stanley road where there was a gate beside the road, leading into a farmer's field. The 4 young men got out of the cars and talked amongst themselves and made some efforts to open the gate.

Suddenly Feighner and Smallwood left the other 2 at the gate, got both girls into Smallwood's car and drove rapidly away. Van Camp chased the car but could not catch it.

Thereupon he and Szabo got into Szabo's car and drove to Miss Porter's home. Shortly after arriving there, they saw Feighner and Smallwood drive up with Miss Porter and Smallwood escort her to the door. Szabo then drove his car up parallel to Smallwood's car.

It is conceded by all that at this point the evening ended in a fight between defendant Van Camp and his 2 erstwhile companions Feighner and Smallwood. It is conceded that in the fight defendant struck the first and last blows and both of his opponents ended up on the ground unconscious. One of them, Smallwood, never came to.

There are 2 basic disputes of facts in the case. The first pertains to what occasioned the fight. Defendant does not offer any explanation for this. One witness for the prosecution, Feighner, asserted that defendant had expressed the intention of raping the girls. This, defendant denies. Another witness, Szabo asserted defendant opposed taking the girls home and that defendant was angry because the girls were taken home against his wish.

The other dispute of fact involves the actual conduct of the fight. Defendant admits knocking both of his opponents out with his fists. He admits that he struck the first and only blows in the altercation with Feighner. But he claims that the deceased struck him while he was engaged with Feighner, and that he then turned to deceased and knocked him out. He denies kicking either.

The principal witness for the prosecution testified pertaining to the crucial facts of the fight as follows:

'Q. What happened when you got in front of Kay's house? A. Parke jumped out of the car, and he run over to Jim's car, and he hit Don Feighner through the open window.

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'Q. How far were you from Feighner? A. Approximately 7 or 8 feet.

'Q. Did Van Camp say anything during the time that included from when he got out of your car until the time he hit Feighner? A. No, sir, he did not.

'Q. What happened when he hit Feighner? A. After he hit Don, he opened the door--car door and he pulled Don by the shirt. He pulled him out of the car, and he hit him again, and Don, he fell to the pavement, and Parke started kicking him.

'Q. Where? A. In the head.

'Q. Then what were you doing? A. At that time I run and I grabbed Parke around the arms, and I told him to leave him alone, and he threw me down to the ground.

'Q. Then what happened? A. And when I come back up to my feet he was swinging at Jim Smallwood.

'Q. Where was he at that time? A. They were at about the curb.

'Q. Near whose car? A. It was near my car.

'Q. Were they in the street near the curb or on the grass near the curb? A. I don't recall.

'Q. What did you then see? A. I seen Jim Smallwood fall after Parke had hit him, and I seen Parke kick him.

'Q. Where did he kick him? A. He kicked him in the head.

'Q. How many times? A. Two or 3 times.

'Q. What did you do? A. I didn't do anything. I just got to my feet, and a lady come out on the porch at that time, and she said she had called the police.

'Q. What then happened? A. That time Parke, he said, 'Let's get out of here,' and he ran, and he picked Don Feighner up, and he put Don Feighner into my car, and I was over trying to talk to Jim, and Jim was unconscious, and he came over, and he picked Jim up and he threw Jim in his car, and he drove off.'

It is undisputed that Smallwood was found dead--later that night, in his own car, at a point to which defendant had driven it.

On autopsy, Smallwood's body was found to have abrasions on the left hand and both elbows, contusions on the left forehead with hemorrhage into the right temporal area, excessive mobility between the 1st and 2d cervical vertebrae and the 7th cervical and 1st thoracic vertebrae, with hemorrhage in the dorsal ligaments and surrounding muscles in the latter region. In addition, both lungs showed extensive hemorrhagic edema ('the lungs, instead of containing air were filled with bloody fluid') which the pathologist identified as the immediate cause of death.

Appellant claims that this record presents insufficient proofs of the corpus delicti.

The pathologist who performed the autopsy identified 'the injuries around the spinal cord' as the cause of the edema of the lungs. Defendant presented a pathologist who gave contrary testimony on this last point, but the jury had a right to accept the testimony of the pathologist who performed the autopsy. It also had a right to consider the facts of the assault and the circumstances which led to the finding of the dead body in determining whether or not the crime charged had been established beyond reasonable doubt.

In People v. Gerndt, 244 Mich. 622, at page 632, 222 N.W. 185, at page 189, this Court said, in dealing with a case where, contrary to this one, the evidence was partly circumstantial:

'The mere possibility that the deceased may have come to her death otherwise than in the manner charged in the information, especially since such suggested possibility is not supported by any proof in the case, is not sufficient to justify setting aside the verdict of the jury, notwithstanding the same was based in part on circumstantial evidence.'

Appeallant claims that the circuit judge should have submitted to the jury the question of whether or not defendant acted in self-defense.

Whatever defendant Van Camp's basic intentions may have been, we think the undisputed testimony requires the inference that he became angered by the actions of Feighner and Smallwood in taking the 2 girls home and that the testimony indicates that defendant was the aggressor all the way through the subsequent altercation. We note defendant's claim that he was struck from behind by Smallwood while he was engaged in knocking Feighner out. But, leaving aside the question of justification for Smallwood's action, defendant himself describes his subsequent attack on Smallwood not as self-defense but as retaliation.

We do not think that the circuit judge erred in withdrawing this question of selfdefense in his charge. There is nothing in this record to indicate that defendant ever considered, or had reason to consider, that he was in great peril. See People v. Doe, 1 Mich. 451; People v. Giacalone, 242 Mich. 16, 217 N.W. 758.

Nor do we think the charge was in error in submitting to the jury the question of first degree murder. We note the absence of any weapon. But we entertain no doubt that kicking a man to death can constitute first degree murder if the clear intent to kill is present. People v. Collins, 303 Mich. 34, 5 N.W.2d 556.

See, also, 22 A.L.R.2D 854, Annotation, Inference of malice or intent to kill where killing is by blow without weapon.

In fact, after careful review, we are inclined to characterize the judge's charge in appellant's counsel's own terms, 'a very good charge.'

We have also reviewed appellant's complaints pertaining to the trial judge's conduct of the trial. Though some rulings seem to have been delivered with more asperity than apears necessary from the printed record, we do not find prejudicial error in any such instances.

Appellant also presents 3 other aspects of the trial in his appeal.

He presents an affidavit from a female juror asserting that the male members of the jury pressured and intimidated her into joining in a guilty verdict. The record makes plain that she did join in the verdict of guilty when the jury was polled. In People v. Pizzino, 313...