People v. Van Wyck

• Decision Date: 27 February 1978
• Docket Number: Nos. 59946 and 60102,s. 59946 and 60102
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert Bruce VAN WYCK, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James LIBBETT, Defendant-Appellee. 402 Mich. 266, 262 N.W.2d 638
• Court: Michigan Supreme Court

Page 638

262 N.W.2d 638

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert Bruce VAN WYCK, Defendant-Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James LIBBETT, Defendant-Appellee.

Nos. 59946 and 60102.

402 Mich. 266, 262 N.W.2d 638

Supreme Court of Michigan.

Feb. 27, 1978.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David H. Sawyer, Pros. Atty. and Craig S. Neckers, Lansing, for plaintiff-appellant.

Street, Stevens, Schuler, Johnson, Hipkiss, Piasecki & Knowlton, Muskegon, for defendant-appellee Van Wyck.

PER CURIAM.

The prosecutor has asked us, in each of these cases, to determine whether the Court of Appeals was correct in holding that voluntary manslaughter is a necessarily included offense within the crime of murder.

Robert Bruce Van Wyck was convicted by a jury in Kent circuit court of the second-degree murder of Lois McDonald. The jury was instructed on first-degree murder and second-degree murder. Defense counsel requested that the trial court also instruct the jury on manslaughter. The request was refused.

The Court of Appeals concluded that voluntary manslaughter is a necessarily included offense within the crime of murder and reversed Van Wyck's conviction. 72 Mich.App. 101, 105, 249 N.W.2d 311 (1976). The Court alluded to this Court's decisions in People v. Jones, 395 Mich. 379, 236 N.W.2d 461 (1975), and People v. Chamblis, 395 Mich. 408, 236 N.W.2d 473 (1975), and the holding in those cases to the effect that if an instruction on a necessarily included offense is requested, it is reversible error to fail to so instruct. The Court of Appeals remanded for entry of a judgment of conviction of manslaughter but gave the prosecutor the option to retry Van Wyck on the second-degree murder charge if the prosecuting attorney was persuaded that the ends of justice would be better served thereby. People v. Van Wyck (On Rehearing), 76 Mich.App. 17, 255 N.W.2d 754 (1977).

James Libbett was convicted by a Kent circuit jury of the first-degree murder of Rosalie Sterling and the second-degree murder of Danny Ireland. The trial court refused to instruct the jury with regard to manslaughter, although requested to do so by defense counsel. The Court of Appeals concluded that voluntary manslaughter is a necessarily included offense within the crime of murder and reversed.

We hold that manslaughter is not a necessarily included offense within the crime of murder but that it may nonetheless be an included offense if the evidence adduced at trial would support a verdict of guilty of that crime.

As we noted in People v. Jones, supra :

"The common-law definition of lesser included offenses is that the lesser must be such that it is impossible to commit the greater without first having committed the lesser. 4 Wharton, Criminal Law and Procedure (12th ed.) § 1799. This definition includes only necessarily included lesser offenses. This definition, however, is generally conceded to be unduly restrictive, and thus most jurisdictions, including Michigan, have statutes that are broadly construed to permit conviction of 'cognate' or allied offenses of the same nature, under a sufficient charge. These lesser offenses are related and hence 'cognate' in the sense that they share several elements, and are of the same class or category, but may contain some elements not found in the higher offense." 395 Mich. 387, 236 N.W.2d 464. (Emphasis in original).

A person who kills another with malice aforethought is guilty of common-law murder.

"Malice aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter." People v. Morrin, 31 Mich.App. 301, 310-311, 187 N.W.2d 434, 438 (1971).

Provocation may mitigate the degree of the offense to manslaughter:

"But if the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement, by which the control or reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition; then the law, out of indulgence to the frailty of human nature, or rather, in recognition of the laws upon which human nature is constituted, very properly regards the offense as of a less heinous character than murder, and...