People v. Williams, Docket No. 67830

• Decision Date: 02 March 1982
• Docket Number: Docket No. 67830
• Citation: 316 N.W.2d 717,412 Mich. 711
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. J. D. WILLIAMS, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 717

316 N.W.2d 717

412 Mich. 711

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. J. D. WILLIAMS, Defendant-Appellee.

Docket No. 67830.

Supreme Court of Michigan.

March 2, 1982.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate, Asst. Pros. Atty., and Timothy A. Baughman, Asst. Pros. Atty., Detroit, for the People.

Robert E. Slameka, Detroit, for defendant-appellee.

PER CURIAM.

The question presented in this case is whether a defendant who requests that the jury be instructed that it might convict him of a certain crime is entitled, after conviction of that crime, to a reversal on the basis that the crime was not charged in the information. We conclude in this case that the defendant's request for an instruction was the functional equivalent of a motion to amend the information which was granted by virtue of the court's instruction to the jury.

I

The defendant and a codefendant were charged with first-degree murder contrary to M.C.L. Sec. 750.316; M.S.A. Sec. 28.548 and with possession of a firearm in the commission of a felony contrary to M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). The trial court granted the codefendant's motion for a directed verdict of acquittal. At this point counsel for the defendant requested that the court instruct the jury that it could convict the defendant of being an accessory after the fact. Counsel stated:

"I can still ask for an accessory after the fact because in the indictment it charges two of them with the commission of this crime. The complaint and warrant charges two people.

"I have a right to go along and base my case, base my premise that my client was nothing more than an accessory after the fact."

The prosecutor did not object to the giving of an accessory-after-the-fact instruction and the trial court did so instruct. The jury convicted the defendant of being an accessory after the fact and of possession of a firearm in the commission of a felony.

The defendant appealed to the Court of Appeals. In an unpublished per curiam opinion the Court of Appeals reversed, stating:

"The distinction between principals and accessories has been abrogated by statute, M.C.L. Sec. 767.39; M.S.A. Sec. 28.979. However, the distinction between a principal and an accessory after the fact remains. Accessory after the fact is a separate and distinct offense not included in the original charge. Thus, the offense must be charged in a separate count. People v. Bargy, 71 Mich.App. 609, 248 N.W.2d 636 (1976).

"The prosecution did not charge the defendant as an accessory after the fact, and the trial judge should not have instructed the jury on that charge."

The prosecutor has applied for leave to appeal.

II

As noted earlier in this opinion it was the defendant, through his attorney, who successfully argued to the trial court that the question of his possible guilt of being an accessory after the fact should be submitted to the jury. Indeed, in his closing argument to the jury, defense counsel stressed that if the defendant was guilty of any crime, it was of being an accessory after the fact.

M.C.L. Sec. 767.76; M.S.A. Sec. 28.1016 provides:

"No indictment shall be quashed, set aside or dismissed or motion to quash be sustained or any motion for delay of sentence for the purpose of review be granted, nor shall any conviction be set aside or reversed on account of any defect in form or substance of the indictment, unless the objection to such indictment, specifically stating the defect claimed, be made prior to the commencement of the trial or at such time thereafter as the court shall in its discretion permit. The court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence. If any amendment be made to the substance of the indictment or to cure a variance between the indictment and the proof, the accused shall on his motion be...