People v. Patterson

198 N.W.2d 175, 39 Mich. App. 467, 1972 Mich. App. LEXIS 1461

Opinions

J. H. Gillis, J.

Defendant was tried in the Recorder’s Court for the City of Detroit by a jury on the charge of second-degree murder, MCLA 750-.317 (Stat Ann 1954 Rev § 28.549) and found guilty of manslaughter, MCLA § 750.321 (Stat Ann 1954 Rev § 28.553). He was sentenced to a term of 6 to 15 years in the state prison. He appeals as of right. We affirm.

Defendant raises six issues on appeal. Two of these concern the sufficiency of the evidence. A review of the record shows that at the close of the people’s case there was sufficient evidence to support the charge of second-degree murder. There was testimony which placed the defendant at the scene of the killing and testimony which linked him to a switchblade knife. It was established that the deceased, Henry “Doc” Savage, was stabbed three times, resulting in his death. Additional testimony disclosed that the deceased was chased by knife-wielding youths. From such evidence the requisite element of malice could be inferred. People v Hansen (1962), 368 Mich 344, 350; People v McKeller (1971), 30 Mich. App 135. Furthermore, from this same evidence the jury could find beyond a reasonable doubt defendant guilty of manslaughter. Although evidence of self-defense and justification was introduced, it is for the jury to determine the facts. People v Moore (1943), 306 Mich 29; People v McKeller, supra.

Defendant also raises on appeal two issues pertaining to the court’s charge to the jury. These instructions were not objected to below and thus the issues were not properly presented for review. People v Turner (1971), 31 Mich App 44. We note, however, that the instruction' on reasonable doubt was consistent with the charge approved in People v Powers (1918), 203 Mich 40. Defendant’s request that the lesser included offenses of assault be included in the charge was not supported by the evidence at trial. There being no evidence upon which the jury could properly find only an assault, it was not error for the trial court to refuse such request. People v Hearn (1958), 354 Mich 468; People v Stevens (1968), 9 Mich App 531.

Also cited as error by the defendant was the admission into evidence of his confession. The record reveals that on two occasions the defendant presented himself to the police in the company of Sanford Rosenthal, an attorney who was at this time representing another defendant who was charged with the murder of “Doc” Savage. Although there is some question as to whether or not Mr. Rosenthal was in a position to, or did, represent the defendant, the police were aware of his apparent interest in having the defendant talk to the officers in charge of the Savage case. These officers not being available on either of these two occasions, the defendant did not give himself up to their custody.

Subsequently, tbe defendant turned himself in to the police unaccompanied by Mr. Rosenthal. Defendant’s confession thereafter followed an extensive instruction concerning his constitutional rights, including his right to have counsel present. Defendant was specifically asked if he wanted Mr. Rosenthal present. Defendant signed a waiver of his rights and at no time during his interrogation made a request for his attorney. At two hearings below the trial court concluded that the defendant’s confession was understandingly and voluntarily made. We cannot agree that this finding was clearly erroneous on the present facts. People v Werner (1970), 26 Mich App 109.

The defendant argues, however, that it was impermissible for the police to take a waiver of the defendant’s right to counsel in the absence of Mr. Rosenthal. Recently this Court held admissible a statement taken under similar facts in People v Jordan (1971), 34 Mich App 360. We cannot agree with the defendant’s contention and we find no error.

Defendant also appeals from the findings of the preliminary examination, contending that there was not sufficient proof to bind defendant over on the charge of second-degree murder and that the use of defendant’s confession at the examination was improper. People v White (1936), 276 Mich 29. However, the examining magistrate was himself careful to view the evidence submitted at the examination without reference to the confession. He was still able to find that the crime charged was committed and that there was probable cause to believe that the defendant committed that crime. This is all that is needed to bind the defendant over for trial. People v Dellabonda (1933), 265 Mich 486; People v Medley (1954), 339 Mich 486; People v Jackson (1967), 8 Mich App 643; People v Asta (1953), 337 Mich 590.

Affirmed.

R. B. Burns, J., concurred.