People v. Burkard , 374 Mich. 430 ( 1965 )

O’Hara, J.

Appeal is from a jury conviction of defendant of manslaughter. He was charged with murder. The court limited the jury’s verdict to guilty of second-degree murder, or manslaughter, or not guilty. Three errors were assigned; one was abandoned upon oral argument before us. There remain the questions of the trial court’s refusal to •dismiss the second-degree murder count and the claimed reversible error in the charge to the jury.

The relevant facts follow: Defendant, slight of stature, a mild-mannered, almost self-effacing person had worked as a typesetter for 30 odd years. For 8 years he had lived in the pleasant suburb of Detroit, St. Clair Shores.

His next door neighbor for the past 5 to 6 years was the deceased, a strapping, muscular man, much the defendant’s junior in age.

The killing occurred August 8, 1961. In the previous Mareh, defendant’s wife had undergone serious surgery for the removal of a malignant tumor. She required cobalt treatments postoperatively. Also diagnosed at the time was a heart condition. The maladies left her irritable, excitable, and short-tempered.

Two days prior to the fatal shooting the Burk-ards, returning from a Sunday outing, found a stake and a twine line along the property line common to them and the deceased. Defendant’s wife became inordinately upset about this, urged defendant to inquire into the reason for stringing the line. She continued to press him to do something about it throughout Monday and Tuesday. Her attitude by Tuesday was testimonially described as “furious,” .and on that afternoon she made an insulting remark about the deceased within earshot of deceased’s wife. Throughout this sequence of events, defendant would have no part of the unpleasantness. Finally, obtaining no support from her husband, Mrs. Burkard tore out the stakes and threw them and the twine on deceased’s property. Deceased audibly threatened to eall the police and announced his intention to replace the stakes and twine.

Defendant at the time was in the basement of his home, a window into which was open. Finally, a vis-á-vis encounter between deceased and defendant’s wife took place. She threw the contents of a glass of beer in his face. He called her an unprintable expletive and threatened her with physical attack. Both people were in a frenzied rage. Defendant quite some time previously had changed the storage place of his deer rifle from a closet in his bedroom, where he customarily kept it, to the basement with a view toward repairing or having repaired the front sight. At the time the argument reached its climax, defendant had just gone down to his basement workroom. The shells for his rifle were kept in a suitcase he described as “a little overnight case.” The critical testimony .as to his actions, after hearing the altercation, is herewith set out:

“Q. Then from that moment you * * * found your rifle in the cabinet. The cabinet was closed, I take it?

“A. I would say yes, usually is.

“Q. So you had to open the cabinet?

“A. It’s usually closed.

“Q. And you had to open it?

“A. Yes.

“Q. Is it locked?

“A. Just a little latch.

“Q. So you had to just open it up, open the doors. And where do you keep the gun, in the back or front or where?

“A. The what?

“Q. Where do you keep it?

“A. What?

“Q. Towards the back of the locker or underneath clothes or in front where you can readily grab it? Where is it at?

“A. It’s standing along the side.

“Q. Standing along the side in a case?

’“A. I suppose it was in a case, should have been.

“Q. Is this the ease, Mr. Burkard?

“A. That looks something like that-. Let’s see that. I presume that’s it; it’s the type.

“Q. Is that the case?

“A. I would say yes.

“Q. Then you opened the case; is that correct?

“A. Well, I don’t know whether it was tied or not.

“Q. It may have been untied at that time then, so you wouldn’t have to untie it, you know ?

“A. That’s right.

“Q. In any event, you had to pull the rifle out of here; is that correct?

“A. It would have to, yes.

“Q. Now, you kept your cartridges in a little overnight case. Was that case open or closed?

“A. I believe it was closed. I don’t know for sure.

“Q. Where was that kept?

“A. It was in there.

“Q. In the locker?

“A. (Affirmative movement of head.)

“Q. So you took the case out and opened the case up; is that correct?

“A. As far as I remember.

“Q. Then where are the cartridges, in the box or loose?

“A. It was some loose and some in the box.

“Q. Some were loose and some in the box and you took one cartridge, did you say?

“A. I might'have taken a couple. I’m not sure, hut I know I only put one in.

“Q. Then you took the rifle and the cartridge, and do you remember putting any cartridges in your pocket?

“A. I can’t—I don’t remember that.

“Q. You took the cartridge and the rifle and you started running up these stairs; is that correct?

“A. I don’t know where I put it in the rifle.

“Q. You don’t remember where you put the cartridge in the rifle?

“A. No, I don’t think I put it in the house.

“Q. In any event, you grabbed the rifle and cartridge and you started running upstairs. You ran out of the house, I take it, or did you walk out?

“A. "Well, I say I walked fast. I might have run.

“Q. Then you went up upstairs into the kitchen and out the kitchen door; is that correct?

“A. No. You come right up the stairway and right out the door. It’s straight up.

“Q. You come up the stairway and you come out which door, Mr. Burkard? You come out the rear door of the house?

“A. What they call the gray [grade] door. Yes, it’s straight. You don’t go into the kitchen.

“Q. You don’t go into this enclosed porch area at all?

“A. You come right straight out through the basement.

“Q. Out the door. So you didn’t come through this screened porch?

“A. No, came right up.

“Q. Your daughter didn’t say anything to you on the screened porch then?

“A. I don’t know anything about that.

“Q. I didn’t hear you.

“A. I don’t know anything about that.

“Q. Did you hear your daughter testify that she saw you on the screened porch and told you, What are you doing, daddy? What are you doing, daddy? Stop.’ Didn’t you hear that?

“A. She must have been confused.

“Q. All right. Then you went around the screened poreh and over to this area and, if I recall correctly, you say you ran up and brushed your wife or pushed her?

“A. That’s right.

“Q. Do you recall this question, which is part of the statement which is now in evidence, which was taken of you?

“Mr. Louisell: May I have the page, please?'

“Mr. Ferris: Page 17.

“Mr. Louisell': Thank you.

“Q. (By Mr. Ferris, continuing):

“ ‘Q. How far away were you from Mr. Stamata-' kis when you pulled the trigger?

‘“A. Oh, hoy! Not far. Probably not over 10 feet, 12 feet.

“ ‘Q. Ten or 12 feet?

“ ‘A. Yes, if that far’.”

It is the position of the defendant that despite the-presumption of malice which attends any killing with a deadly weapon, the proofs here adduced negated such presumption. It is further contended that the total record is barren o-f any proof which would -make out a prima facie case second-degree murder, thus allowing the jury to pass upon the issue of malice, suddenly formed, which is an element of that crime. Timely motion for a directed verdict of acquittal as to the charge of second-degree murder was made, and denied by the trial judge. This denial, defendant argues, was reversibly erroneous because, had the jury been limited to the verdicts of guilty of manslaughter or not guilty, no “compromise” verdict of guilty of manslaughter would have resulted. We cannot agree. Admittedly, there is no more vexing problem in criminal jurisprudence than the requirement of proving a subjective state of mind by external and objective evidence. The testimony of the defendant cannot be controlling. It can hardly be expected that one accused of crime requiring the presence of the legal concept of malice will testify that he entertained it. Mere denial of such state of mind by the accused cannot be conclusive. Judges and juries being unequipped with extrasensory perception, or any other metapsychical powers, the law has established the rule that the composite jury judgment based upon all relevant facts surrounding the occurrence is the best available test. If no evidentiary facts have been adduced to which this jury consideration can be applied, the court, under our system, withholds from them the issue. We cannot, as the able trial judge could not, say there was not evidence from which the jury could not reasonably infer that defendant formed the requisite malice. This we believe is true, whether they chose to accept defendant’s version of the events leading up to the shooting as contained in his statement to the investigating officer or the different version he gave on the trial.

People v. Marshall, 366 Mich 498, stressed by defendant, presents a completely different factual background. We have examined the other cases cited by appellant and those contra relied upon by appellee. We deem it necessary only to say in general that this is not a case where an accused had already in his possession a weapon. It is not a case where both parties to the affray were armed. Defendant here had to make the judgment which actuated his movements to open a closet, remove the riñe, open an overnight bag, remove a shell, load the weapon, and go from the basement to the scene of the affray in the yard. These facts are not conclusive, as a matter of law, that defendant did form the requisite legal malice. Neither are they, as a matter of law, conclusive that he did not. They do furnish the evidentiary base to submit under proper instruction the question to the jury. We believe the controlling principle is adequately stated in People v. Collins, 303 Mich 34, at p 51:

“It was the province of the jury, and not of the court, to decide whether there was much or little testimony which would reduce the crime from murder to manslaughter. While there may be little testimony to reduce the crime to manslaughter, it was for the jury to measure the quantity of proof. People v. Toner, 217 Mich 640 (23 ALR 433).

“ ‘It will suffice to say that the testimony justified submitting the case to the jury on the charge of murder, and whether the testimony bearing on that charge was much or little was for the jury and not for the court.’ People v. Vanderhoof, 234 Mich 419.

“The court was not in error in submitting to the jury the issue as to whether defendant was guilty of murder or manslaughter.”

Appellant’s second claim of error concerns the charge to the jury. It is incontestable that the following quoted portion of the trial court’s charge is reversibly erroneous:

“Now it is said, in the matter of self defense which I have mentioned, that we are- bound to look at the testimony from the standpoint of the defendant. It must be seen through his eyes if reasonably viewed. This is the people’s request.. Self-defense in proper cases is the right of every person, but it will not justify an attempt to talce human life unless you are satisfied beyond a reasonable doubt from testimony that an assault in fact 'ivas' about to be made upon the defendant’s wife by the deceased. The term assault as here used means an attempt or offer on the part of the deceased, Steve Stamatakis, with force and violence, to inflict a bodily hurt upon another.” (Emphasis supplied.)

■ It may be that the learned trial judge was merely stating that the foregoing was a request to charge, rather than his own statement of the applicable law; if so, he should not have read it in his charge. Certainly, later in the charge he stated, with precision and accuracy, the proper test to be applied. However, we may not speculate on what effect the patently erroneous excerpt may have had, in the absence .of the trial, judge himself instructing the jury to disregard it. We hardly need specify that the test of whether “an assault in fact was about to be made upon defendant’s wife” was clearly and reversibly erroneous. Tbe test, of course, was later stated correctly, namely, whether defendant “was actuated by an honest belief that his wife’s life was in danger” irrespective of whether it was or was not so in fact.

Our decision in People v. Eggleston, 186 Mich 510, at pp 514 and 515, controls:

“In other portions of the charge the learned trial judge laid down the proper rule. * * * We have said, however, that where conflicting instructions are given, one erroneous and the other without error, it may be presumed that the jury followed that instruction which was erroneous.”

Absent specific and clear repudiation of the erroneous charge given, we may not presume that it was not followed. For the reason stated, the judgment of conviction is reversed and a new trial ordered.

Souris and Adams, JJ., concurred with O’Hara, J. Black, J., concurred in result.