People v. Embree , 70 Mich. App. 382 ( 1976 )

70 Mich. App. 382 (1976) 246 N.W.2d 6

PEOPLE
v.
EMBREE

Docket No. 22817.

Michigan Court of Appeals.

Decided August 3, 1976.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Harold S. Sawyer, Prosecuting Attorney, and Craig S. Neckers, Assistant Prosecuting Attorney, for the people.

Bergstrom, Slykhouse & Shaw, P.C. (by James G. Black), for defendant.

Before: BASHARA, P.J., and ALLEN and C.J. HOEHN,^[*] JJ.

C.J. HOEHN, J.

Defendant was convicted of first-degree murder in violation of MCLA 750.316; MSA 28.548 following trial before a jury. He was sentenced to a term of life imprisonment. He appeals as of right.

The defendant raises several allegations of error, only one of which merits discussion. During his charge to the jury, the trial court instructed the jury on the elements of felony-murder and premeditated murder, both of which were charged in the information, as well as the lesser offenses of second-degree murder and manslaughter. He further charged the jury that they could return one of five verdicts: Guilty of first-degree murder, guilty of second-degree murder, guilty of manslaughter, not guilty by reason of insanity or not guilty. He did not instruct the jury that to return a verdict of first-degree murder they must be in unanimous agreement as to the theory of guilt, that is, either felony-murder or premeditated murder. No objection to the charge delivered was lodged by the defendant. In the absence of objection we will reverse the defendant's conviction only upon a demonstration that manifest injustice has occurred. People v Snow, 386 Mich. 586; 194 NW2d 314 (1972).

The precise issue raised by the defendant here was raised in People v Embree, 68 Mich. App. 40; 241 NW2d 753 (1976). On the authority of that opinion and the cases cited therein we affirm.

In this particular case, the proof is overwhelming that defendant was guilty of both premeditated murder and felony-murder. The record leaves no question of defendant's participation in the crimes of kidnaping, robbery, rape and callous premeditated murder.

We do not accept the position of Judge D.E. HOLBROOK, JR'S., dissent in People v Embree, supra, that that case and People v Olsson, 56 Mich. App. 500; 224 NW2d 691 (1974), lv den, 394 Mich. 772 (1975),^[1] are in opposition.

In the Embree case, the court found the evidence supportive of both premeditated and felony-murder. In the Olsson case, the court found no evidence supportive of felony-murder.

Assuming no evidence of a felony, a first-degree murder finding in which some of the jurors may have substituted felony participation to provide the requisite premeditation, the verdict of the jury should be set aside.

Where, as here, however, the evidence of felony and premeditation are present in abundance, the jury verdict should be preserved. People v Fullwood, 51 Mich. App. 476, 481; 215 NW2d 594 (1974), lv den, 393 Mich. 785 (1975).

We would be remiss if we did not bring to the attention of the bench and bar the fact that good practice would require a trial judge to instruct the jury that its decision must be unanimous as to whether the murder was premeditated or whether it occurred as an incident of defendant's participation in one of the enumerated felonies.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] The Olsson decision was written by Judge T.M. BURNS, concurred in by Judge BASHARA and dissented from by Judge V.J. BRENNAN.