People v. Sherman , 14 Mich. App. 720 ( 1968 )

14 Mich. App. 720 (1968) 166 N.W.2d 22

PEOPLE
v.
SHERMAN

Docket No. 2,159.

Michigan Court of Appeals.

Decided December 19, 1968.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.

Martin D. Grant, for defendant.

PER CURIAM:

The defendant was convicted upon jury trial of the offense of assault with intent to do great bodily harm less than the crime of murder.^[1] Of the 27 errors urged on appeal, the 18 designated in appellant's brief as "points of defendant's insisting on being raised on appeal" are not supported in the record. Of the remaining grounds, only one shall be dealt with here.

A meticulous examination of the record establishes that defendant's asserted defense of self-defense has sufficient testimonial support to require it to be submitted to the jury as an issue. Apparently the trial court also so concluded and then charged the jury that the defense theory was that of a mutual fight.^[2] Upon conclusion of the charge, defendant's counsel asked to approach the bench. The request was refused, and nothing further appears in the record as to the charge. It therefore appears that defendant's counsel was not afforded the opportunity to make objections to the charge.

"Mutual fight" is not the same as self-defense. "Mutual fight" could include self-defense but not necessarily so. The theory of "mutual fight" may be asserted not for purposes of showing a justification or an excuse for what would otherwise be an assault, but rather to characterize the affray for purposes of negating a specific intent such as the intent to do great bodily harm. But, the phrase "mutual fight" may also include self-defense under appropriate circumstances.

Since the theory of self-defense was within the range of the evidence, the instruction of the court dealing only with the more limited aspect of "mutual fight" was legally inadequate. This is particularly emphasized by the fact that the trial court, in stating the theory of the prosecution to the jury, stated factual positions negating a self-defense theory.^[3]

An accused is entitled to have his theory clearly recognized in the charge. People v. Cummins (1882), 47 Mich. 334; People v. Welke (1955), 342 Mich. 164. The charge as given was erroneous and misleading. Even though there was no request to charge submitted, reversal is warranted where an erroneous or misleading charge is given as opposed to a charge which merely omits a pertinent though not legally necessary point. People v. Liggett (1967), 378 Mich. 706; People v. Guillett (1955), 342 Mich. 1. If a subject is an essential ingredient of a charge, which self-defense was here, the court must charge on it even in the absence of a request. People v. Hearn (1958), 354 Mich. 468.

Reversed and remanded for a new trial.

T.G. KAVANAGH, P.J., and LEVIN and NEWBLATT, JJ., concurred.

NOTES

[1] CL 1948, § 750.84 (Stat Ann 1962 Rev § 28.279).

[2] The entire charge of the court on the subjects of mutual fight or self-defense were: (a) In giving the theory of the prosecution, the court in referring to the complainant said: "He had no weapon, used no weapon, unless you consider the bottle, which could be, except when he threw the bottle it didn't hit him." (b) Continuing with the prosecution theory but apparently referring to the defendant, the court said: "He could have retreated. There was no reason for assault. There were no threats of great violence against him. He could have gone home, which they finally persuaded him to do, and he left." (c) And finally, the last reference by the court in the charge to either self-defense or mutual fight was as follows: "The defense, members of the jury, is that the physical facts are there. There was drinking between the Bynums and Sherman, there was an altercation, and that Sherman was — it was a mutual fight, that he did nothing further. There was some mention of a revolver, very indefinite. I think there is some testimony that someone saw a revolver in his hand, or about where it came from — that's up to you. But the defense is that it was just a mutual fight, that the People have failed to prove his guilt beyond a reasonable doubt."

[3] See footnote 2.