People v. Lutzke

Michigan Court of Appeals

People v. Lutzke

241 N.W.2d 765, 68 Mich. App. 75, 1976 Mich. App. LEXIS 679

CourtMichigan Court of Appeals

DecidedMarch 23, 1976

DocketDocket 22044, 22045

StatusPublished

Cited by5 cases

This text of 241 N.W.2d 765 (People v. Lutzke) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Lutzke, 241 N.W.2d 765, 68 Mich. App. 75, 1976 Mich. App. LEXIS 679 (Mich. Ct. App. 1976).

Pincite

Opinions

Quinn, P. J.

Charged with first-degree murder, MCLA 750.316; MSA 28.548, and assault with [78]*78intent to commit murder, MCLA 750.83; MSA 28.278, the jury convicted defendant of second-degree murder, MCLA 750.317; MSA 28.549, and assault with intent to commit great bodily harm less than murder, MCLA 750.84; MSA 28.279. He was sentenced and he appeals.

Shortly after 8 p.m. on February 26, 1974, defendant entered the Alger Bar in Arenac County. Due to the erratic walking of defendant, the bartender informed defendant that he would not be served. Defendant said nothing and left. An hour later defendant returned at which time the bartender and one customer were the only persons in the bar. After defendant had walked several feet toward the bar, the bartender again informed defendant he would not be served. Defendant walked back to the door, opened it, turned, pointed a gun at the bartender’s direction and fired two shots. One shot fatally wounded the customer. The bartender ran after defendant and tried to pull him out of his vehicle. When he observed defendant reach for an object, he ran to the rear of the vehicle and then heard two shots. The bartender returned to the bar and called the police. At trial, the defendant testified that he was present at the bar and had fired shots. The defense was intoxication.

Defendant’s first issue alleges lack of proof of premeditation and asserts as error (a) his bind-over on an open charge of murder, and (b) denial of his motion for directed verdict on the first-degree murder charge. As to (a), it was not raised prior to or at trial and cannot be raised for the first time on appeal, People v Miller, 62 Mich App 495; 233 NW2d 629 (1975). As to (b), defendant’s actions, his return a second time after an hour lapse with a weapon could support an inference of [79]*79premeditation, People v Juniel, 62 Mich App 529; 233 NW2d 635 (1975).

Second, defendant claims error in the instruction on intoxication because the trial judge failed to instruct that intoxication was a defense to first-degree murder and to assault with intent to do great bodily harm less than murder. When the instructions are read as a whole, the instruction on intoxication as a defense applied to all charges on which the jury was instructed, and no objection was made to the instruction given. We find no error.

We consider defendant’s third issue to be frivolous. There was evidence to support both charges. Under People v White, 390 Mich 245; 212 NW2d 222 (1973), those charges had to be joined in one trial.

Defendant contends that the instruction on intoxication violates People v Crittle, 390 Mich 367, 212 NW2d 196 (1973). The instruction complained about is very similar to the instruction reviewed in People v Scott, 55 Mich App 739; 223 NW2d 330 (1974), namely: a mixture of the capacity standard and the standard required by Crittle, supra. The Scott, supra, analysis of this question is sound and we adopt it as dispositive of this issue. No error occurred. We note again that no objection was made below to this instruction.

The remaining issues raised on appeal either have not been properly preserved for review, merit no discussion, or their resolution is unnecessary to the proper disposition of this case.

Affirmed.

J. H. Gillis, J., concurred.

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Quinn, P. J.

Charged with first-degree murder, MCLA 750.316; MSA 28.548, and assault with [78]*78intent to commit murder, MCLA 750.83; MSA 28.278, the jury convicted defendant of second-degree murder, MCLA 750.317; MSA 28.549, and assault with intent to commit great bodily harm less than murder, MCLA 750.84; MSA 28.279. He was sentenced and he appeals.

Shortly after 8 p.m. on February 26, 1974, defendant entered the Alger Bar in Arenac County. Due to the erratic walking of defendant, the bartender informed defendant that he would not be served. Defendant said nothing and left. An hour later defendant returned at which time the bartender and one customer were the only persons in the bar. After defendant had walked several feet toward the bar, the bartender again informed defendant he would not be served. Defendant walked back to the door, opened it, turned, pointed a gun at the bartender’s direction and fired two shots. One shot fatally wounded the customer. The bartender ran after defendant and tried to pull him out of his vehicle. When he observed defendant reach for an object, he ran to the rear of the vehicle and then heard two shots. The bartender returned to the bar and called the police. At trial, the defendant testified that he was present at the bar and had fired shots. The defense was intoxication.

Defendant’s first issue alleges lack of proof of premeditation and asserts as error (a) his bind-over on an open charge of murder, and (b) denial of his motion for directed verdict on the first-degree murder charge. As to (a), it was not raised prior to or at trial and cannot be raised for the first time on appeal, People v Miller, 62 Mich App 495; 233 NW2d 629 (1975). As to (b), defendant’s actions, his return a second time after an hour lapse with a weapon could support an inference of [79]*79premeditation, People v Juniel, 62 Mich App 529; 233 NW2d 635 (1975).

Second, defendant claims error in the instruction on intoxication because the trial judge failed to instruct that intoxication was a defense to first-degree murder and to assault with intent to do great bodily harm less than murder. When the instructions are read as a whole, the instruction on intoxication as a defense applied to all charges on which the jury was instructed, and no objection was made to the instruction given. We find no error.

We consider defendant’s third issue to be frivolous. There was evidence to support both charges. Under People v White, 390 Mich 245; 212 NW2d 222 (1973), those charges had to be joined in one trial.

Defendant contends that the instruction on intoxication violates People v Crittle, 390 Mich 367, 212 NW2d 196 (1973). The instruction complained about is very similar to the instruction reviewed in People v Scott, 55 Mich App 739; 223 NW2d 330 (1974), namely: a mixture of the capacity standard and the standard required by Crittle, supra. The Scott, supra, analysis of this question is sound and we adopt it as dispositive of this issue. No error occurred. We note again that no objection was made below to this instruction.

The remaining issues raised on appeal either have not been properly preserved for review, merit no discussion, or their resolution is unnecessary to the proper disposition of this case.

Affirmed.

J. H. Gillis, J., concurred.

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241 N.W.2d 765, 68 Mich. App. 75, 1976 Mich. App. LEXIS 679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-lutzke-michctapp-1976.

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