People v. Bourne

Michigan Supreme Court

People v. Bourne

188 N.W.2d 573, 385 Mich. 170, 1971 Mich. LEXIS 179

CourtMichigan Supreme Court

DecidedJuly 7, 1971

Docket22 January Term 1971, Docket No. 52,635

StatusPublished

Cited by11 cases

This text of 188 N.W.2d 573 (People v. Bourne) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Bourne, 188 N.W.2d 573, 385 Mich. 170, 1971 Mich. LEXIS 179 (Mich. 1971).

Pincite

Opinions

Adams, J.

I concur with Justice T. E. Brennan. With regard to the two major issues raised on this appeal, the law is clear. A killing may be only manslaughter even though there is an intent to kill. The principle is set forth by Justice Campbell in People v. Scott (1859), 6 Mich 287, 295:

“Voluntary manslaughter often involves a direct intent to kill, but the law reduces the grade of the offense because, looking at the frailty of human nature, it considers great provocations sufficient to excite the passions beyond the control of reason.”

See also: Nye v. People (1876), 35 Mich 16; People v. Lilley (1880), 43 Mich 521; People v. Holmes (1896), 111 Mich 364; People v. Milhem (1957), 350 Mich 497; 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1664, p 2006.

In a charge of murder, the presence or absence of malice is a question of fact to be determined by the jury. Justice Christiancy in Maher v. People (1862), 10 Mich 212, 218, stated this principle:

“It is for the court to define the legal import of the term, malice aforethought, or, in other words, [173]*173that state or disposition of mind which constitutes it; but the question whether it existed or not, in the particular instance, would, upon principle, seem to be as clearly a question of fact for the jury, as any other fact in the cause, and that they must give such weight to the various facts and circumstances accompanying the act, or in any way bearing upon the question, as in their judgment, they deserve: and that the court have [sic] no right to withdraw the question from the jury by assuming to draw the proper inferences from the whole, or any part of, the facts proved, as presumption of law. If courts could do this, juries might be required to find the fact of malice where they were satisfied from the whole evidence it did not exist.” (Emphasis by Court.)

See also: People v. Potter (1858), 5 Mich 1; Wellar v. People (1874), 30 Mich 16, 19; 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 657, p 843.

Judge Davenport’s charge to the jury occupies 35-1/2 pages of appellant’s appendix in this case. There were no exceptions to the charge. From a review of the record in this case and the charge of the trial judge, I am unable to conclude that any error complained of has resulted in a miscarriage of justice. MCLA § 769.26 (Stat Ann 1954 Rev § 28.1096).

I vote to affirm.

T. M. Kavanagh, C. J., and Black, T. G. Kavanagh, and Williams, JJ., concurred with Adams.

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Adams, J.

I concur with Justice T. E. Brennan. With regard to the two major issues raised on this appeal, the law is clear. A killing may be only manslaughter even though there is an intent to kill. The principle is set forth by Justice Campbell in People v. Scott (1859), 6 Mich 287, 295:

“Voluntary manslaughter often involves a direct intent to kill, but the law reduces the grade of the offense because, looking at the frailty of human nature, it considers great provocations sufficient to excite the passions beyond the control of reason.”

See also: Nye v. People (1876), 35 Mich 16; People v. Lilley (1880), 43 Mich 521; People v. Holmes (1896), 111 Mich 364; People v. Milhem (1957), 350 Mich 497; 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1664, p 2006.

In a charge of murder, the presence or absence of malice is a question of fact to be determined by the jury. Justice Christiancy in Maher v. People (1862), 10 Mich 212, 218, stated this principle:

“It is for the court to define the legal import of the term, malice aforethought, or, in other words, [173]*173that state or disposition of mind which constitutes it; but the question whether it existed or not, in the particular instance, would, upon principle, seem to be as clearly a question of fact for the jury, as any other fact in the cause, and that they must give such weight to the various facts and circumstances accompanying the act, or in any way bearing upon the question, as in their judgment, they deserve: and that the court have [sic] no right to withdraw the question from the jury by assuming to draw the proper inferences from the whole, or any part of, the facts proved, as presumption of law. If courts could do this, juries might be required to find the fact of malice where they were satisfied from the whole evidence it did not exist.” (Emphasis by Court.)

See also: People v. Potter (1858), 5 Mich 1; Wellar v. People (1874), 30 Mich 16, 19; 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 657, p 843.

Judge Davenport’s charge to the jury occupies 35-1/2 pages of appellant’s appendix in this case. There were no exceptions to the charge. From a review of the record in this case and the charge of the trial judge, I am unable to conclude that any error complained of has resulted in a miscarriage of justice. MCLA § 769.26 (Stat Ann 1954 Rev § 28.1096).

I vote to affirm.

T. M. Kavanagh, C. J., and Black, T. G. Kavanagh, and Williams, JJ., concurred with Adams.

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Bluebook (online)

188 N.W.2d 573, 385 Mich. 170, 1971 Mich. LEXIS 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bourne-mich-1971.

Opinions

I vote to affirm.

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