O’Hara, J.
This is an appeal on leave granted from a jury conviction of rape 1 rendered on December 12,1950. Prior thereto, on October 11,1950, the defendant was convicted of manslaughter under an information charging first-degree murder 2 In the murder trial, the prosecution did not rely alone on the historic elements of premeditation and malice. Rather, the people argued that defendant was guilty under the statute making any killing which occurs in the commission of or the attempt to commit the crime of rape, first-degree murder. It is undisputed that the trial judge specifically instructed the jury on this precise point. We quote:
“The Court: Attention has been called [by defense counsel] to the fact that the court mentioned the theories and claims of the defendant and did not state the claim or theory of the prosecution, and in fairness I should state as has been stated by them, it is their claim that this killing was a murder that was committed in the perpetration, or attempted perpetration of rape, and therefore, it is under the statute murder of the first degree. That is the claim of the prosecution. You may now retire in charge of the officer.”
[22]*22The obvious question is whether the defendant was twice put in jeopardy for the same offense, rendering his second conviction repugnant to the Fifth Amendment to the Constitution of the United States.
The law is clear. The Fifth Amendment protection against double jeopardy is enforceable against the states through the Fourteenth Amendment. Benton v. Maryland (1969), 395 US 784 (89 S Ct 2056, 23 L Ed 2d 707). Benton, supra, is retroactive. North Carolina v. Pearce (1969), 395 US 711 (89 S Ct 2072, 23 L Ed 2d 656).
Thus, if defendant’s conviction for rape (and consequent life sentence) is constitutionally infirm, he is entitled to his freedom instanter for he has completed his 10- to 15-year sentence under the prior conviction for manslaughter.
The question becomes whether he was in fact twice put in jeopardy for the same offense under the law of Ashe v. Swenson (1970), 397 US 436 (90 S Ct 1189, 25 L Ed 2d 469). This decision controls the instant case. Prior to Ashe, the controlling law was Hoag v. New Jersey (1958), 356 US 464 (78 S Ct 829, 2 L Ed 2d 913) reh den 357 US 933 (78 S Ct 1366, 2 L Ed 2d 1375). In Hoag, the Supreme Court adopted and applied the Fourteenth Amendment test of due process alone, that of “fundamental unfairness.” The court did not decide whether the doctrine of “collateral estoppel” is an “ingredient of the Fifth Amendment guarantee against double jeopardy.” In Ashe the court incorporated the doctrine into the Fifth Amendment, enforceable against the states, and retroactively applicable. We quote Mr. Justice Stewart who wrote the opinion of the Court in Ashe.
“ ‘Collateral estoppel’ is an awkward phrase, but it stands for an extremely important principle in [23]*23our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future law suit.”
Thus, our task is to determine judicially whether in this case of Noth the issue of ultimate fact, i.e., whether Noth’s conviction of manslaughter was a determination by a valid and final judgment that he was not guilty of rape or attempted rape. If it did, his second trial for rape offended against the Fifth Amendment guarantee against double jeopardy.
On June 11, 1950, defendant embarked upon a social program, the chief constituent of which was drinking beer. The activities began between 12:30 and 1 of that Saturday afternoon. According to defendant’s testimony, between a picnic, a visit to a tavern, a side trip to his home, and a fresh start about 1:30 a.m., he drank “about 15 bottles of beer”. Along about this time, he testified with complete candor that “he wanted a woman”. He knew of a place called Bill’s Woods (also known to him as Bus’s Woods) where those amorously inclined were known to gather and park. He indicated in the second (rape) trial that there were “guys who were pimping out there” and one could obtain gratification for a modest stipend. To this end, he stopped at his home to get some money. He also, at some undetermined time, armed himself with a pistol which he Was carrying in his belt under his shirt.
Upon arriving at the wooded area, he pulled up alongside a parked car. He got out of his truck and walked over to the car and saw a woman in the front seat. At this point the testimony is ih conflict. According to the prosecutrix, he opened the door and announced, “I want a piece of ass and I don’t care who knows it”. According to the defendant, [24]*24he asked her if she was alone. He does not remember whether or not she answered. At this moment, the defendant’s version is that a man raised himself up from the back seat. The defendant testified that he told him, “I only wanted a woman and everything was going to be all right”. The man started to get out of the car, the woman having already stepped out. “I got scared and told him to stay in the car.” The man continued to get out of the car and “he got hold of me and I rasseled loose and then I heard— I faintly remember— * * * two shots” from defendant’s gun. We now quote directly:
“Q. What did you do after the episode you just mentioned?
“A. Beg pardon.
“Q. What did you do after the rassle or scuffle ended?
“A. Well, I got back in the truck and tried to start it—
“Q. Did it start?
“A. No, sir, it didn’t start—
“Q. What did you do?
“A. I started to take the car and flee.
“Q. The other car that was sitting there?
“A. Yes.
“Q. Did you take it?
“A. Yes, I did take it.
“Q. Anything happen between the time that you started (?) the truck and couldn’t start it and the time you drove away in the other car?
“A. Yes, I seduced the woman.”
Defendant claims that the intercourse was attended by little resistance, if any; that while in the act of intercourse he asked the woman if she wanted to go with him and that she said “yes”; that she got in the car with him voluntarily and that later she was “blabbering”; and that he pushed her out of [25]*25the car and continued on to Cincinnati where he was later arrested.
The prosecutrix’s facts are somewhat less complicated. In simple substance she claimed that after the defendant’s introductory remark her husband got out of the car, that defendant shot him, pushed her to the ground, forcibly raped her, and then hit her over the head with the pistol.
On these facts, or whichever factual version or combination thereof it chose to believe, the jury found the defendant guilty of manslaughter.
Free access — add to your briefcase to read the full text and ask questions with AI
O’Hara, J.
This is an appeal on leave granted from a jury conviction of rape 1 rendered on December 12,1950. Prior thereto, on October 11,1950, the defendant was convicted of manslaughter under an information charging first-degree murder 2 In the murder trial, the prosecution did not rely alone on the historic elements of premeditation and malice. Rather, the people argued that defendant was guilty under the statute making any killing which occurs in the commission of or the attempt to commit the crime of rape, first-degree murder. It is undisputed that the trial judge specifically instructed the jury on this precise point. We quote:
“The Court: Attention has been called [by defense counsel] to the fact that the court mentioned the theories and claims of the defendant and did not state the claim or theory of the prosecution, and in fairness I should state as has been stated by them, it is their claim that this killing was a murder that was committed in the perpetration, or attempted perpetration of rape, and therefore, it is under the statute murder of the first degree. That is the claim of the prosecution. You may now retire in charge of the officer.”
[22]*22The obvious question is whether the defendant was twice put in jeopardy for the same offense, rendering his second conviction repugnant to the Fifth Amendment to the Constitution of the United States.
The law is clear. The Fifth Amendment protection against double jeopardy is enforceable against the states through the Fourteenth Amendment. Benton v. Maryland (1969), 395 US 784 (89 S Ct 2056, 23 L Ed 2d 707). Benton, supra, is retroactive. North Carolina v. Pearce (1969), 395 US 711 (89 S Ct 2072, 23 L Ed 2d 656).
Thus, if defendant’s conviction for rape (and consequent life sentence) is constitutionally infirm, he is entitled to his freedom instanter for he has completed his 10- to 15-year sentence under the prior conviction for manslaughter.
The question becomes whether he was in fact twice put in jeopardy for the same offense under the law of Ashe v. Swenson (1970), 397 US 436 (90 S Ct 1189, 25 L Ed 2d 469). This decision controls the instant case. Prior to Ashe, the controlling law was Hoag v. New Jersey (1958), 356 US 464 (78 S Ct 829, 2 L Ed 2d 913) reh den 357 US 933 (78 S Ct 1366, 2 L Ed 2d 1375). In Hoag, the Supreme Court adopted and applied the Fourteenth Amendment test of due process alone, that of “fundamental unfairness.” The court did not decide whether the doctrine of “collateral estoppel” is an “ingredient of the Fifth Amendment guarantee against double jeopardy.” In Ashe the court incorporated the doctrine into the Fifth Amendment, enforceable against the states, and retroactively applicable. We quote Mr. Justice Stewart who wrote the opinion of the Court in Ashe.
“ ‘Collateral estoppel’ is an awkward phrase, but it stands for an extremely important principle in [23]*23our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future law suit.”
Thus, our task is to determine judicially whether in this case of Noth the issue of ultimate fact, i.e., whether Noth’s conviction of manslaughter was a determination by a valid and final judgment that he was not guilty of rape or attempted rape. If it did, his second trial for rape offended against the Fifth Amendment guarantee against double jeopardy.
On June 11, 1950, defendant embarked upon a social program, the chief constituent of which was drinking beer. The activities began between 12:30 and 1 of that Saturday afternoon. According to defendant’s testimony, between a picnic, a visit to a tavern, a side trip to his home, and a fresh start about 1:30 a.m., he drank “about 15 bottles of beer”. Along about this time, he testified with complete candor that “he wanted a woman”. He knew of a place called Bill’s Woods (also known to him as Bus’s Woods) where those amorously inclined were known to gather and park. He indicated in the second (rape) trial that there were “guys who were pimping out there” and one could obtain gratification for a modest stipend. To this end, he stopped at his home to get some money. He also, at some undetermined time, armed himself with a pistol which he Was carrying in his belt under his shirt.
Upon arriving at the wooded area, he pulled up alongside a parked car. He got out of his truck and walked over to the car and saw a woman in the front seat. At this point the testimony is ih conflict. According to the prosecutrix, he opened the door and announced, “I want a piece of ass and I don’t care who knows it”. According to the defendant, [24]*24he asked her if she was alone. He does not remember whether or not she answered. At this moment, the defendant’s version is that a man raised himself up from the back seat. The defendant testified that he told him, “I only wanted a woman and everything was going to be all right”. The man started to get out of the car, the woman having already stepped out. “I got scared and told him to stay in the car.” The man continued to get out of the car and “he got hold of me and I rasseled loose and then I heard— I faintly remember— * * * two shots” from defendant’s gun. We now quote directly:
“Q. What did you do after the episode you just mentioned?
“A. Beg pardon.
“Q. What did you do after the rassle or scuffle ended?
“A. Well, I got back in the truck and tried to start it—
“Q. Did it start?
“A. No, sir, it didn’t start—
“Q. What did you do?
“A. I started to take the car and flee.
“Q. The other car that was sitting there?
“A. Yes.
“Q. Did you take it?
“A. Yes, I did take it.
“Q. Anything happen between the time that you started (?) the truck and couldn’t start it and the time you drove away in the other car?
“A. Yes, I seduced the woman.”
Defendant claims that the intercourse was attended by little resistance, if any; that while in the act of intercourse he asked the woman if she wanted to go with him and that she said “yes”; that she got in the car with him voluntarily and that later she was “blabbering”; and that he pushed her out of [25]*25the car and continued on to Cincinnati where he was later arrested.
The prosecutrix’s facts are somewhat less complicated. In simple substance she claimed that after the defendant’s introductory remark her husband got out of the car, that defendant shot him, pushed her to the ground, forcibly raped her, and then hit her over the head with the pistol.
On these facts, or whichever factual version or combination thereof it chose to believe, the jury found the defendant guilty of manslaughter.
The information filed reads as follows:
“Walter Noth feloniously, wilfully and of his malice aforethought did kill and murder one Eugene Schaaf contrary to Section 28.548, Michigan Statutes Annotated.”
It is at least of interest to note that the jury, before arriving at its verdict, three times requested further instructions concerning the difference between the degrees of murder and asked specifically for instruction upon the elements of manslaughter. The foreman asked if they could bring in a verdict with a recommendation. The trial judge disallowed the request, hut permitted the jurors to express themselves individually.3 Three jurors recommended the maximum penalty.
In response to the jury’s request as to the difference between murder and manslaughter, the trial judge replied:
“The one element that must he there to distinguish it [murder] from manslaughter [is] the motive.”
Soon thereafter the verdict of guilty of manslaughter was returned and the sentence was imposed as noted.
[26]*26Then came defendant’s arrest, arraignment, and trial on the following charge:
“That # # * on or about the 12th day of June, * * * one Walter Noth, with force and arms, in and upon Beulah Schaaf, a female of the age of 16 years or more, to wit, of 31 years, did make an assault on her, the said Beulah Schaaf, then and there by force and against her will did ravish and carnally know contrary to Section 529, Act 328, Public Acts of 1931, 28.788 Michigan Statutes Annotated.”
At this trial the testimony of the prosecutrix was virtually identical to that which she gave in the murder case. Defendant, however, expanded upon and to some extent modified his testimony at the murder trial. The significant modification or expansion is in the following account of what transpired immediately after he fatally shot Mrs. Schaaf’s husband.4 As Mr. Schaaf was getting out of the car defendant said:
“ * * * I told him there was no use getting mad — I was leaving. All I wanted was a woman— I was leaving.”
Then came the reaffirmation and expansion of the testimony which we think furnishes the crucial fact situation. After defendant had testified that he had declared his intention to leave, the following testimony was adduced.
“Q. What did he (Mr. Schaaf) do?
“A. He got out of the car, and I was scared and I started to run and started to get into the truck.
“Q. What happened then?
[27]*27“A. I changed my mind about getting into the truck for some reason or other and started to run and he grabbed me and we had a slight scuffle and I shot him.”
* # *
“Q. What did you do then?
“A. I kind of realized the plight I was in and started to flee and was going to take the car and I got out and seen the woman and I remembered I came out looking for a woman and I went over and was going — for the purpose of having intercourse with her.”
# # #
“Q. To the best of your recollection how long would you say it was from the time the man got out of the car until you returned from your truck to where she was?
“A. That is hard to say, hut I would guess around five, ten minutes, around five minutes
# # #
“Q. What happened then?
“A. Well, I took hold of her, embraced her and she was reluctant, and seems like we ended up on the ground.”
# # #
“Q. Did you have intercourse with her?
“A. I believe so, yes.”
The testimony conflicts as to how Mrs. Schaaf got into or was forced into the car but in any event defendant decided to get rid of her and he testified:
u * * * ghg wasn’t getting out fast enough so I grabbed her and was pushing her out and the door was still closed and she wasn’t getting out so I hit her with the pistol.
“Q. I want to go back a moment to the pistol. Did you have the pistol, the gun, with you, on your person, in other words, in your pocket or any place during all this time—
[28]*28“A. No, sir, when I got back in the truck, well, I imagine I had the gun in my right hand — I am righthanded — so when I start the truck I always place it in neutral and I would need both hands and so I laid the pistol down there and then during the alleged attack the pistol was in the truck and then I got it when we started to leave.” (Emphasis supplied.)
To the testimony of the murder trial we apply the test ordained by Ashe by asking what ultimate fact or facts were determined by its valid and final judgment. We find and hold the following ultimate facts were determined by the verdict of manslaughter:
1) Walter Noth shot and killed Ernest Schaaf.
2) Walter Noth did not shoot and kill Ernest Schaaf in the perpetration of, or the attempt to perpetrate, the felony of rape.
3) Walter Noth shot and killed Ernest Schaaf within the meaning of the court-charged and legal definition of manslaughter.
Thus, because that jury decided that defendant appellant did not kill Schaaf in the perpetration of the felony of rape or the attempt to commit rape, is the state not clearly barred from prosecuting him again for the crime of rape, which rape admittedly took place within five to ten minutes of the killing?
It was not.
Collateral estoppel, as an ingredient of the Fifth Amendment double jeopardy clause, clearly guarantees that no person shall be “subject for the same offense to be twice put in jeopardy * * *
To us, just as clearly, the Fifth Amendment jeopardy clause, as now interpreted by the ultimate constitutional authority as including the doctrine of collateral estoppel, does not guarantee that a person may not be prosecuted for two separate offenses [29]*29occurring at two separate times and against two separate persons even though closely allied in point of time.
We read the records in both cases, as we must, to establish clearly that defendant committed the offense of manslaughter upon Walter Schaaf and did not kill him in an attempt to perpetrate rape. After he killed Schaaf, that incident was over. Noth fired in panic, or for whatever other reason, within the definition of manslaughter. He left the scene of that crime in an attempt to flee. Failing to start his own truck, he left the death-dealing weapon in it and went back to the scene of a previous crime to get a ear that was operational to effect his escape. At this point, or very nearly this point, he remembered “he wanted a woman” and he had forcible intercourse with a woman. This was rape. It was unrelated in intent, or in issue of ultimate fact, to the previous homicide. In logic and in law, it matters not that the interval between the two offenses was five or ten minutes, five or ten days, or five or ten weeks. The Fifth Amendment is not, in our view, a carte blanche to commit a separate offense in immediate proximity in point of time and place to another separate offense. Defendant cannot escape prosecution for the later separate offense.
The second prosecution was not barred by the Fifth Amendment before or after Ashe, supra. Ashe is inapposite.
We have discussed the only meritorious issue upon the appeal by leave granted. The judgment of conviction of rape is affirmed.
Lesinski, C. J., concurred.