KEITH, Circuit Judge.
This is an appeal by the State of Michigan from a judgment of the United States District Court for the Eastern District of [421]*421Michigan granting a petition for a writ of habeas corpus. The district court granted the writ because it found that the petitioner’s jury verdict of felony murder was not supported by sufficient evidence. For the reasons discussed below, we affirm the judgment of Chief Judge John Feikens.
I
Petitioner Cornell Fuller was convicted by a jury of felony murder in the Recorder’s Court of Detroit, Michigan.1 He was sentenced to serve life in prison and has served at least nine years of that sentence.
On the morning of May 18, 1970 a fire destroyed the home of Safronia Turner at 1554 Lemay in Detroit. Mrs. Turner and several children managed to escape the blaze,-but two of Mrs. Turner’s children— Ruth' and Regina — were killed in the fire. A fire department investigation revealed that the fire was apparently caused by a “Molotov cocktail” deliberately thrown into the rear of the Turner residence. Petitioner Fuller was arrested and charged with first degree murder in violation of 2 M.C. L.A. § 750.316.2 The State alleged, as the underlying felony, that Fuller aided and abetted Zerious Meadows in deliberately setting-3 the fire at the Turner residence.
The following evidence was introduced at the Fuller trial. Marshall Robinson, Captain of the Detroit Fire Department, testified that a “Molotov cocktail” appeared to have - caused the fire. Robert Kuntz, a chemist with the Detroit Fire Department, testified that gasoline was present on portions of the house siding.
Helen Brownlee, who lived next-door to the Turner residence, testified that on the morning of May 18 she saw five* or six boys together in a group in front of the Turner home. She testified that Cornell Fuller was one of the boys. She saw Fuller and one or two other boys go through the front gate of the Turner yard. They went to the rear of the Turner residence. At that time, she saw one of the boys, who was still in front, throw something. She yelled at the boys , because she thought they had thrown something at her house. She ran out of her house, onto the front porch, and saw that the Turner house was on fire. ■
Fourteen-year old Jeffrey Coleman, a friend of one of the Turner children, testified that on the morning of the 18th he left his house at eight o’clock to head for the Turner’s residence. When he went through the backyard of a neighbor and approached the Turner’s residence from the rear, he saw Zerious Meadows on the Turner’s back porch. He saw Cornell Fuller standing inside the backyard by the gate. Coleman testified that he saw Zerious Meadows ignite a rag that was stuffed inside a bottle. Meadows then threw the bottle against the Turner’s house, starting a fire. He saw Meadows then strike a match and start another fire. Jeffrey Coleman also testified as follows:
[422]*422Q. Now, after he had struck the match and started the second fire what happened then?
A. Well, he had jumped off the porch and then they ran down the alley towards Kercheval.
Q. When you say they ran down the alley, who ran down the alley?
A. Zerious and Cornell.
Q. Towards Kercheval?
A. Yes, sir.
Q. During the time that Zerious Meadows was throwing the bottle against the side of the house or against the side of the porch and lighting the match which set — started the second fire did you see what Cornell Fuller was doing?
A. He was standing by the gate, looking around.
Q. When you say he was looking around what, exactly, was he doing?
A. I guess he was watching out for Zerious — he had looked to Jefferson and he looked back towards Kercheval.
Q. He looked towards Jefferson and looked back towards Kercheval?
Q. Did he do that once or more than once?
A. He did it more than once.
Q. He did it more than once — how many times—
THE COURT: Was this the alley gate or the gate toward the front of the house?
A. It was the alley gate.
Q. How many times would you say Cornell Fuller looked towards Jefferson and then looked back towards Kerche-val?
A. I wouldn’t know.
Q. But it was more than once; is that correct?
Q. Was it more than twice?
Q. Now, during the time this was taking place, Jeffrey, did you hear any words spoken between Zerious and Cornell?
A. No.
Q. Did you say anything to them?
Q. Now, after — strike that, please — after the second fire began, you testified that Zerious and Cornell left the backyard; is that correct?
Q. Did they enter the alley?
Q. Did they enter the alley through the gate that Cornell Fuller was standing by?
Q. And then they started running; is that correct?
Q. Were they running together or separately, Jefferey?
A. Together.
Q. And they were running towards Ker-cheval; is that correct?
App. 83-86.
On cross-examination, young Coleman testified that he attended “special school”, having attended regular public schools only until the third grade. At the time of trial, young Coleman resided in a youth home because, as he stated, he had run away from home. Although Coleman testified that he approached the Turner residence from the rear and then saw the events as related in his testimony quoted above, he may have been one of the boys who were huddled in front of the Turner house shortly before the fire. Prosecution witness Helen Brownlee testified that she thought a “Jeffrey” was with the group of boys, (transcript at 151, 164, 168). In addition, it is undisputed that Coleman failed to warn the Turner’s that their house was on fire even though he was at the scene at the time the fire began. Further, Coleman had a fight with one of the Turner children about a month before the fire (transcript at 195-6 and 235), and investigators at least initially were of the view that Coleman was one of the perpetrators of the arson.4
[423]*423Gary Martin testified that on the morning of the fire Jeffrey Coleman stopped by his house. Martin looked out his window, after Coleman left, and saw Cornell Fuller, Zerious Meadows and four other boys in the alley near the Turner house. A few minutes later, he saw the boys again when they came through a yard running toward the alley. Fuller and Meadows were still in the group. Finally, Jeffrey Coleman returned to Martin’s residence and said that the Turner house was on fire.
Detective Sergeant John Roffey testified that he interviewed Mrs. Brownlee the day after the fire.
Free access — add to your briefcase to read the full text and ask questions with AI
KEITH, Circuit Judge.
This is an appeal by the State of Michigan from a judgment of the United States District Court for the Eastern District of [421]*421Michigan granting a petition for a writ of habeas corpus. The district court granted the writ because it found that the petitioner’s jury verdict of felony murder was not supported by sufficient evidence. For the reasons discussed below, we affirm the judgment of Chief Judge John Feikens.
I
Petitioner Cornell Fuller was convicted by a jury of felony murder in the Recorder’s Court of Detroit, Michigan.1 He was sentenced to serve life in prison and has served at least nine years of that sentence.
On the morning of May 18, 1970 a fire destroyed the home of Safronia Turner at 1554 Lemay in Detroit. Mrs. Turner and several children managed to escape the blaze,-but two of Mrs. Turner’s children— Ruth' and Regina — were killed in the fire. A fire department investigation revealed that the fire was apparently caused by a “Molotov cocktail” deliberately thrown into the rear of the Turner residence. Petitioner Fuller was arrested and charged with first degree murder in violation of 2 M.C. L.A. § 750.316.2 The State alleged, as the underlying felony, that Fuller aided and abetted Zerious Meadows in deliberately setting-3 the fire at the Turner residence.
The following evidence was introduced at the Fuller trial. Marshall Robinson, Captain of the Detroit Fire Department, testified that a “Molotov cocktail” appeared to have - caused the fire. Robert Kuntz, a chemist with the Detroit Fire Department, testified that gasoline was present on portions of the house siding.
Helen Brownlee, who lived next-door to the Turner residence, testified that on the morning of May 18 she saw five* or six boys together in a group in front of the Turner home. She testified that Cornell Fuller was one of the boys. She saw Fuller and one or two other boys go through the front gate of the Turner yard. They went to the rear of the Turner residence. At that time, she saw one of the boys, who was still in front, throw something. She yelled at the boys , because she thought they had thrown something at her house. She ran out of her house, onto the front porch, and saw that the Turner house was on fire. ■
Fourteen-year old Jeffrey Coleman, a friend of one of the Turner children, testified that on the morning of the 18th he left his house at eight o’clock to head for the Turner’s residence. When he went through the backyard of a neighbor and approached the Turner’s residence from the rear, he saw Zerious Meadows on the Turner’s back porch. He saw Cornell Fuller standing inside the backyard by the gate. Coleman testified that he saw Zerious Meadows ignite a rag that was stuffed inside a bottle. Meadows then threw the bottle against the Turner’s house, starting a fire. He saw Meadows then strike a match and start another fire. Jeffrey Coleman also testified as follows:
[422]*422Q. Now, after he had struck the match and started the second fire what happened then?
A. Well, he had jumped off the porch and then they ran down the alley towards Kercheval.
Q. When you say they ran down the alley, who ran down the alley?
A. Zerious and Cornell.
Q. Towards Kercheval?
A. Yes, sir.
Q. During the time that Zerious Meadows was throwing the bottle against the side of the house or against the side of the porch and lighting the match which set — started the second fire did you see what Cornell Fuller was doing?
A. He was standing by the gate, looking around.
Q. When you say he was looking around what, exactly, was he doing?
A. I guess he was watching out for Zerious — he had looked to Jefferson and he looked back towards Kercheval.
Q. He looked towards Jefferson and looked back towards Kercheval?
Q. Did he do that once or more than once?
A. He did it more than once.
Q. He did it more than once — how many times—
THE COURT: Was this the alley gate or the gate toward the front of the house?
A. It was the alley gate.
Q. How many times would you say Cornell Fuller looked towards Jefferson and then looked back towards Kerche-val?
A. I wouldn’t know.
Q. But it was more than once; is that correct?
Q. Was it more than twice?
Q. Now, during the time this was taking place, Jeffrey, did you hear any words spoken between Zerious and Cornell?
A. No.
Q. Did you say anything to them?
Q. Now, after — strike that, please — after the second fire began, you testified that Zerious and Cornell left the backyard; is that correct?
Q. Did they enter the alley?
Q. Did they enter the alley through the gate that Cornell Fuller was standing by?
Q. And then they started running; is that correct?
Q. Were they running together or separately, Jefferey?
A. Together.
Q. And they were running towards Ker-cheval; is that correct?
App. 83-86.
On cross-examination, young Coleman testified that he attended “special school”, having attended regular public schools only until the third grade. At the time of trial, young Coleman resided in a youth home because, as he stated, he had run away from home. Although Coleman testified that he approached the Turner residence from the rear and then saw the events as related in his testimony quoted above, he may have been one of the boys who were huddled in front of the Turner house shortly before the fire. Prosecution witness Helen Brownlee testified that she thought a “Jeffrey” was with the group of boys, (transcript at 151, 164, 168). In addition, it is undisputed that Coleman failed to warn the Turner’s that their house was on fire even though he was at the scene at the time the fire began. Further, Coleman had a fight with one of the Turner children about a month before the fire (transcript at 195-6 and 235), and investigators at least initially were of the view that Coleman was one of the perpetrators of the arson.4
[423]*423Gary Martin testified that on the morning of the fire Jeffrey Coleman stopped by his house. Martin looked out his window, after Coleman left, and saw Cornell Fuller, Zerious Meadows and four other boys in the alley near the Turner house. A few minutes later, he saw the boys again when they came through a yard running toward the alley. Fuller and Meadows were still in the group. Finally, Jeffrey Coleman returned to Martin’s residence and said that the Turner house was on fire.
Detective Sergeant John Roffey testified that he interviewed Mrs. Brownlee the day after the fire. She did not identify anyone at that time as being involved in the fire, and Detective Roffey testified that her in-court testimony, implicating Fuller, was a surprise to him.
The lone witness for the defense was Hattie Fuller, the mother of the petitioner. She testified that on the morning of the fire her son was at home asleep until about 9:00 a. m.
II
The issue on appeal is whether the foregoing facts are sufficient to sustain the murder conviction of Cornell Fuller. In In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), the Supreme Court held that the due process clause requires that all criminal convictions must be based upon proof beyond a reasonable doubt. In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Supreme Court held that this standard has application in the law of habeas corpus:
[I]n a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 . . . the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Id. at 324, 99 S.Ct. at 2792.
In applying this standard in habeas corpus cases, the federal courts must review the evidence in the light most favorable to the prosecution. The petition must be denied if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319, 99 S.Ct. at 2789. See also Moore v. Duckworth, 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979); Brewer v. Overberg, 624 F.2d 51 (6th Cir. 1980), cert. denied, 449 U.S. 1085, 101 S.Ct. 873, 66 L.Ed.2d 810 (1981); Davis v. Campbell, 608 F.2d 317 (8th Cir. 1979). The district court recognized that conflicts in the evidence must be resolved in favor of the State, but nevertheless found that the evidence introduced at trial was too meager to support the petitioner’s conviction. We agree with the district court’s conclusion.
Under Jackson v. Virginia, we must examine the sufficiency of the evidence here in support of each element of the petitioner’s offense. Fuller was convicted of felony murder in Michigan. A felony murder conviction under M.C.L.A. § 750.316; M.S.A. § 28.548 requires proof of each element of the underlying felony. People v. Allen, 39 Mich.App. 483, 494, 197 N.W.2d 874 (1972) (Levin, J., dissenting), adopted, 390 Mich. 383, 212 N.W.2d 21 (1973). Thus, Fuller could only be convicted under this statute if the jury could rationally have found him guilty of attempted arson beyond a reasonable doubt.5
[424]*424In Michigan, in order to establish arson, the prosecution must show that a person willfully and maliciously burned a dwelling house. See note 3 supra. In order to prove attempted arson the prosecution must show that the aider and abettor, “if not himself possessed of the requisite specific intent, ... [at least] rendered his aid and assistance to the principal actor with the knowledge that the principal himself possessed the intent necessary to be guilty of the crime.” People v. Rigsby, 92 Mich. App. 95, 97, 284 N.W.2d 499 (1979). See also People v. Gordon, 60 Mich.App. 412, 231 N.W.2d 409 (1975); People v. Poplar, 20 Mich.App. 132, 173 N.W.2d 732 (1969). The Michigan Supreme Court has held:
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 or a principal in the second degree nor is mere mental approval, sufficient, nor passive acquiescence or consent. '
People v. Burrel, 253 Mich. 321, 323, 235 N.W.2d 170 (1931) (quoting 1 Cyc.Crim.Law [Brill] § 233); People v. Casper, 25 Mich. App. 1, 5, 180 N.W.2d 906 (1970). In other words, the accused must take some conscious action designed to make the criminal venture succeed in order to be guilty of aiding and abetting. People v. Cooper, 326 Mich. 514, 40 N.W.2d 708 (1950); People v. Gordon, 60 Mich.App. 412, 418, 231 N.W.2d 409 (1975).
The district court correctly concluded that the evidence introduced at petitioner’s trial only showed that on the morning of May 18 Fuller was present at the Turner residence along with Zerious Meadows and the other boys. The evidence showed that Fuller looked around while Meadows started the fires. But as Judge Feikens pointed out:
This suggests, as Jeffrey Coleman surmised, that the petitioner may have been acting as a lookout for Meadows. It is reasonable speculation. But could a rational jury find it to be proof beyond a reasonable doubt? No evidence was presented that the petitioner intended to burn the Turner home. The evidence that he knew that Zerious Meadows planned to do is simply too meager to support conviction, (emphasis in original)
We note that there was no evidence at trial that the “Molotov cocktail” which started the fire was prepared in advance, or, if it was, whether any of the boys other than Zerious Meadows knew that the “Molotov cocktail” existed. There was of course no evidence that any of the boys, except Fuller, participated in the manufacture of the “Molotov cocktail”.
Moreover, there was no direct evidence that the youths approached the Turner house with intent to set the house on fire. Assuming Zerious Meadows had this intent, however, there was no evidence that it was shared by petitioner or the other boys.
The only direct evidence supporting the State’s contention that Fuller “stood guard and acted as a lookout” for Zerious Meadows was Jeffrey Coleman’s testimony that over a period of several minutes Fuller turned his head from side to side “more than twice.” We agree with the district court that this is insufficient to establish beyond a reasonable doubt that Fuller took conscious action to aid Meadows’ commission of arson.
Accordingly, the judgment of the district court granting the petition for habeas corpus is affirmed.