People v. Allen

197 N.W.2d 874, 39 Mich. App. 483, 1972 Mich. App. LEXIS 1462

• Court: Michigan Court of Appeals
• Decided: March 27, 1972
• Docket: Docket 10157
• Status: Published

Opinions

R. B. Burns, J.

Defendant was convicted of a felony murder. Killing a person while perpetrating or attempting to perpetrate a robbery constitutes first-degree murder in this state.¹

Defendant’s first assigned error involves analysis of one of criminal law’s most fundamental principles :

“An unsupported confession should not be received as sufficient evidence of the corpus delicti.”2 People v. Lane (1882), 49 Mich 340, 341.

The prosecution was supplied with a number of “confessions” in the present case due to defendant’s tendency to inform his friends and jail inmates that he had shot the victim while attempting to rob him.

Evidence independent of the confessions clearly established the victim was shot by two men and that defendant was connected with the killing.³

An essential requirement in a first-degree murder prosecution under the felony-murder theory is proof of one of the independent felonies listed in the statute.⁴

Defendant contends that it was necessary for the prosecution, aliunde the confession, to establish the independent felony, i.e., the attempted robbery.

The corpus delicti in a homicide case has traditionally been established by proof of the dead body and evidence of an unnatural cause of death. People v. Jackzo (1919), 206 Mich 183; People v. Jackson (1965), 1 Mich App 207.⁵

There is little authority throughout the country as to whether or not, under the felony-murder rule, proof of the felony as well as the murder is part of the corpus delicti. The State of New York has held that proof of the independent felony is not part of the corpus delicti and has admitted confessions into evidence to determine the degree of the crime. People v. Lytton (1931), 257 NY 310 (178 NE 290, 291-292, 79 ALR 503, 506-507).

In Lytton, Chief Judge Cardozo stated (pp 313-315):

“The defendant insists that upon a trial for homicide perpetrated in the commission of another and independent felony (People v. Moran, 246 NY 100 [158 NE 35 (1927)]; Penal Law [Consol Laws, c 40], § 1044, subd 2), a confession is insufficient evidence to sustain a conviction, though there is corroborating evidence of the fact of the homicide, unless there is also corroborating evidence, i.e., evidence apart from the confession, of the independent felony, and that the trial judge erred in charging to the contrary.

“The charge is in accordance with the settled doctrine of this court, which deserves to be stated in an opinion, since arguments before us both in this case and in others disclose uncertainty as to the governing principle in the minds of members of the bar.

“Code of Criminal Procedure, § 395, provides that a confession of a defendant ‘is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.’ The crime charged against this defendant is homicide, and the fact that a homicide has been committed is proved, without reference to a confession, by the testimony of eyewitnesses as well as by the discovery of the body, bearing tokens of a fatal wound. (People v Deacons, 109 NY 374 [16 NE 676 (1888)]; People v Brasch, 193 NY 46, 58 [85 NE 809 (1908)]). This being done, the requirement of the Criminal Code must be held to have been satisfied. The danger that a crime may be confessed when no such crime in any degree has been committed by any one is then sufficiently averted. (People v Deacons, supra). The considerations of public policy back of this section of the Code are near akin to those back of a section of the Penal Law to the effect that ‘no person can be convicted of murder or manslaughter unless the death of the person alleged to have been killed and the fact of killing by the defendant, as alleged, are each established as independent facts; the former by direct proof, and the latter beyond a reasonable doubt.’ (Penal Law [Consol Laws, c 40] § 1041; People v Palmer, 109 NY 110, 114 [16 NE 529, 4 Am St Rep 423 (1888)]). The corroborating evidence being sufficient to confirm the confession of a homicide, the Code does not require that it shall also confirm the confession of a homicide in any particular degree.

“The defendant, indeed, does not contend that there would be need for corroborating evidence of degree if the case had been submitted to the jury under Penal Law, section 1044, subdivision 1, as a homicide committed with a deliberate and premeditated design to kill. The argument is that a different measure. of corroboration becomes necessary when the case is submitted under subdivision 2 as a homicide effected without a design to kill by a person engaged in the commission of a felony. The distinction so drawn proceeds upon a false conception of the function of an accompanying felony in a prosecution for the crime of murder. Its function and its significance were clearly expounded by this court, speaking by Hiscock, Ch. J., in People v Nichols (230 NY 221 [129 NE 883 (1921)]), a case substantially decisive of the question now before us. Homicide, we said, is not murder ‘without evidence of malice and of a felonious intent and a depraved mind.’ (People v Nichols, supra, 230 NY at page 226 [129 NE 883-884]). The malice or the state of mind may be proved by showing that the act was done with a deliberate and premeditated design to kill. The case will then fall under subdivision 1 (§ 1044). It may be proved by showing that the act was done by one then and there engaged in the commission of another felony. (People v Enoch, 13 Wend 159, 174 [27 Am Dec 197 (1834)]; People v Nichols, supra). The case will then fall under subdivision 2. In the one case as in the other a single crime is charged, the independent felony like the deliberate and premeditated intent being established solely for the purpose of characterizing the degree of the crime so charged, the evil mind or purpose inherent in the killing. (People v Enoch, supra). If there could be any doubt about this, the form of the indictment would be sufficient to dispel it. The rule is settled that there is no need to charge in an indictment that the homicide was wrought in the commission of another felony. It suffices to state in the common-law form that the defendant acted ‘willfully, feloniously, and with malice aforethought.’ (People v Nichols, supra; People v Giblin, 115 NY 196, 198 [21 NE 1062, 4 LRA 757 1889)]; People v Osmond, 138 NY 80 [33 NE 739 (1893)]). This would never do if the independent felony were conceived of as changing the identity of the crime instead of merely characterizing the degree of culpability to be imputed to the killer.”

In People v Crandell (1935), 270 Mich 124, the defendant pled guilty to murder in the first degree; he killed while attempting to perpetrate a robbery. The Court stated (pp 127-128):

“There is no merit in the point that defendant’s confession could not be considered in determining the degree of the murder.

“In People v Lytton, supra, 313, it was said: [The Court then quoted from the Lytton case which we have quoted above, ending with]

“ ‘The corroborating evidence being sufficient to confirm the confession of a homicide, the code -does not require that it shall also confirm the confession of a homicide in any particular degree.’

“No claim is made by defendant, or any one in his behalf, that he was not guilty of the murder. His confession of guilt and details of the killing remain unquestioned.”

The trial court did not err by admitting the confessions into evidence.

Defendant next contends the trial court committed reversible error in failing to charge the jury as to manslaughter. Defendant’s failure to timely object to the jury instructions waives his right to object on appeal. People v Mallory (1966), 2 Mich App 359; People v Allar (1969), 19 Mich App 675; People v Mason (1970), 22 Mich App 595; GCE 1963, 516.2. The trial judge’s remark that “there are three possible verdicts in this particular case; that is, guilty as charged of murder in the first degree or murder in the second degree, or not guilty” does not come within the prohibition of People v Lemmons (1970), 384 Mich 1. In addition to defendant’s failure to request instructions on the offense of manslaughter and his expressed satisfaction with the instructions as given, no evidence existed which could support a finding of manslaughter. The court therefore was not obligated to charge as to manslaughter. People v Patskan (1971), 29 Mich App 354.

After the jury had retired to deliberate, the court informed counsel that some communication had been received from the jury relative to why the defendant had not taken the stand. It is defendant’s contention that the jury in arriving at a verdict was considering the fact that he had not taken the stand to testify. Defendant charges that the judge should have immediately dismissed the jury and declared a mistrial. We are aware of the jury’s duty to follow the instructions of the court (People v Howard [1914], 179 Mich 478; People v McIntosh [1967], 6 Mich App 62), but a mistrial is not an appropriate solution for every query regarding jury instructions. Unless it can be shown there was a manifest necessity to declare a mistrial, the time and effort invested in giving defendant a fair trial will not be lost. People v Parker (1906), 145 Mich 488; In re Earle (1946), 316 Mich 295; 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 698, p 887. In this case the court instructed the jury a second time that “no presumption adverse to him is to arise from the mere fact that he [defendant] does not place himself upon the witness stand”.⁶

Defendant claims certain remarks made by the judge in his charge to the jury constituted prejudicial error. Again, defendant’s failure to object to the remarks precludes his right to do so on appeal. People v Mason, supra. Read in their entirety, the instructions were proper. People v Dye (1959), 356 Mich 271; People v Charles Jackson (1970), 21 Mich App 132.

Defendant next complains of the following remarks in the prosecutor’s closing argument:

“You recall that Detective Hay testified that he got this assignment as the officer in charge of this case of the killing of Dr. Harris the morning after he was killed on January 30, 1970, and through his perseverance and investigation, this case is in court and it was such a beautiful job of investigation that I think I would have to commend him for the job he has done.” (Emphasis supplied.)

The above emphasized complimentary remark should not have been made. It could have been construed by the jury as an expression of the prosecutor’s personal opinion of the defendant’s guilt. However, it was not so prejudicial as to require reversal. The remark could not have caused the jury to “suspend its own powers of judgment in reviewing the evidence before it”. People v Humphreys (1970), 24 Mich App 411, 419. The remark does not present a clear case of abuse. See People v Dawson (1971), 29 Mich App 488, 494.

Defendant next claims that the jury’s verdict, “We find the defendant guilty in the first degree”, was void, since there is no crime in Michigan known as “first degree”. “Murder” was not mentioned in the verdict.

The defendant was charged with first-degree murder and the jury instructions covered both first- and second-degree murder. It is not necessary to void the verdict since it can reasonably be construed to mean first-degree murder. People v Farrell (1906), 146 Mich 264; People v Jenkins (1970), 23 Mich App 39.

Defendant’s objection to the testimony of a ballistics expert will not be considered since it was not preserved for review by timely objection at trial. People v Lundberg (1961), 364 Mich 596.

In defendant’s last assigned error he alleges that the gun seized from him on the date of his arrest was done so illegally and thus should not have been permitted into evidence. When the gun was first offered into evidence, a separate record, out of the presence of the jury, was made to determine whether the gun had been legally seized. Testimony on this separate record indicates the following facts:

(1) The arresting officers were sent to an address to investigate a kidnapping complaint.

(2) After arriving at the address the arresting officers were told by a woman that in an apparent robbery attempt her boyfriend had been forced at gun point to return to his apartment.

(3) The arresting officers after being admitted into the apartment noticed that a woman in the apartment seemed hysterical and that one man kept making eye movements toward the defendant and another man.

(4) As one of the arresting officers walked toward the defendant to ask for identification he saw a partially hidden gun beneath a sofa cushion.

(5) After he noticed the partially.hidden gun the officer placed defendant against the wall.

(6) One of the arresting officers discovered a gun on defendant after the defendant had made a noise as if in pain, had bent over, and had attempted to grab at the inside of his own coat.

The woman’s complaint, the peculiar actions of two individuals in the apartment, and the partially-hidden gun were sufficient to justify the warrantless arrest of the defendant. MCLA § 764.15(d) (Stat Ann 1954 Bev § 28.874 [d]); People v Harper (1962), 365 Mich 494. The seizure of the murder weapon was incident to a lawful arrest and therefore justified. People v Panknin (1966), 4 Mich App 19.⁷

Affirmed.

J. H. G-illis, J., concurred.

1 MCLA 1971 Cum Supp § 750.316 (Stat Ann 1971 Cum Supp § 28-.548).

2 Abundant ease support for this principle may be found in 1 Gillespie, Michigan Criminal Law & Procedure (2d Ed), § 23, pp 42-43. A thorough discussion of corpus delicti in Michigan case law may be found in People v. Kirby (1923), 223 Mich 440. Requiring corpus delicti to be proven by more than the defendant’s naked extrajudicial confession is the prevailing American rule. 40 Am Jur 2d, Homicide, § 285, p 551; 7 Wigmore on Evidence (3d Ed), § 2071, p 395.

3 In addition to the murder weapon being found on his person the defendant was seen at the scene of the crime a few moments prior to its occurrence.

4 “All murder which shall be * * * committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping, shall be murder of the first degree.” En 1, supra.

5 See 1 Gillespie, Michigan Criminal Law & Procedure (2d Ed), § 23, p 42. See, also, 40 Am Jur 2d, Homicide, § 4, p 297.

6 The jury 'then indicated their comprehension of the instruction.

7 The facts within the arresting officer’s knowledge were sufficient to warrant a prudent man in believing that the person arrested had committed or was committing an offense. See Beck v. Ohio (1964), 379 US 89 (85 S Ct 223, 13 L Ed 2d 142).