People v. Morris

159 N.W.2d 886, 10 Mich. App. 526, 1968 Mich. App. LEXIS 1448

• Court: Michigan Court of Appeals
• Decided: March 29, 1968
• Docket: Docket 3,137, 3,138
• Status: Published

Opinions

Burns, J.

Defendant was charged by separate informations with the armed robbery¹ and kidnaping² of George Hoffman, a gasoline station attendant in the city of Kalamazoo. The defendant was found guilty by a jury on both charges and sentenced to prison for 4 to 10 years.

The defendant’s motion to suppress from evidence the .22-caliber pistol allegedly used in the crimes was granted by the trial court on the basis that the weapon was obtained by an unlawful search and seizure. During the trial the prosecution made no attempt to offer the weapon into evidence,- it was employed, however, over objection, to demonstrate to the jury the type and operation of the weapon used in the crimes. Defendant’s motion for a new trial on this ground was denied.

Defendant entered a defense of insanity and requested that the jury be instructed in accordance with the test for insanity established by Durham v. United States (1954), 94 App DC 228 (214 F2d 862, 45 ALR2d 1430). The trial court declined to give the instruction requested.

Defendant raises two issues on appeal:

“(1) Did the trial court err in refusing to grant defendant’s request to charge the jury under the Durham or ‘product of mental illness’ rule on the issue of insanity at the time of commission of the alleged offenses?

“(2) Did the trial court err in refusing to grant defendant’s motion for new trial on the grounds the prosecution had used a .22-caliber pistol, previously suppressed from the evidence, in examining witnesses for purposes of identification of the type and demonstrating the operation of the weapon used in the alleged crimes, where said weapon was not introduced into evidence?”

Regarding the Durham rule, the Michigan Supreme Court recently stated in People v. Krugman (1966), 377 Mich 559, 562:

“Had defendant properly requested a charge in accordance with the Durham rule, our task would have been somewhat different. Then we would have been obliged to decide whether this Court in the exercise of its common-law authority should adopt a new test for determining criminal responsibility or continue to adhere to the venerable, if not venerated, right-wrong test and the irresistible impulse test. See People v. Durfee (1886), 62 Mich 487. When, and if, such a choice is squarely presented to us, we shall have to review the desirability of changing the law in Michigan with regard to criminal responsibility not only in light of decisions like Durham and United States v. Freeman (CA2, 1966), 357 F2d 606, but also with regard to the principle announced, and thence seemingly overlooked, in People v. Garbutt (1868), 17 Mich 9, 23 (97 Am Dec 162).”

The instant case is controlled by People v. Durfee, supra, and the trial court properly instructed the jury.

Although defendant’s second assignment of error is meritorious it is without prejudicial consequence. When the defendant’s attorney discovered that the gun being used for demonstration purposes was in fact the • pistol suppressed from evidence, he did not move for a mistrial but moved that the gun be removed from the courtroom, and his motion was granted. Even the court expressed surprise upon learning the true identity of the pistol being used for demonstration purposes, and stated: “I don’t think the jury has any idea it is the same gun. I think it is best just to say no more about it.” There was no indication to the jury that the weapon in the courtroom was the one used in the crimes.

The action of the assistant prosecutor did constitute misconduct and bordered on contempt. However, a thorough review of the record convinces us that this misconduct did not result in a miscarriage of justice. CL 1948, § 769.26 (Stat Ann 1954 Rev §28.1096).

Affirmed.

Lesinski, C. J., concurred with Burns, J.

1 CLS 1961, § 750.529 (Stat Ann 1965 Cum Supp § 28.797).

2 CL 1948, § 750.349 (Stat Ann 1954 Rev § 28.581).