People v. McBride , 30 Mich. App. 201 ( 1971 )

30 Mich. App. 201 (1971) 186 N.W.2d 70

PEOPLE
v.
McBRIDE

Docket No. 8692.

Michigan Court of Appeals.

Decided January 27, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Paul M. Ladas, Prosecuting Attorney, and Gerald D. Warner, Assistant Prosecuting Attorney, for the people.

O'Toole & Johnson, for defendant on appeal.

Before: HOLBROOK, P.J., and McGREGOR and T.M. BURNS, JJ.

PER CURIAM.

Defendant was charged with murder in the first degree and, in a non-jury decision, convicted of second-degree murder. CL 1948, § 750.317 (Stat Ann 1954 Rev § 28.549). The testimony showed that on July 4, 1969, sometime after 10:30 p.m., defendant and his wife started arguing about some money which he had requested from her, so he could go and take his "other woman" out and which she refused to give him. Her refusal angered him and he went into the bedroom and returned with a pistol which discharged, ultimately killing his wife.

On appeal, defendant contends that he and his wife were tussling and that the shooting was accidental and that, therefore, the elements of malice and intent to kill were not present, which elements would be necessary to warrant a finding of a second-degree murder.

The element of malice in the crime of murder has recently been defined in People v. Hansen (1962), 368 Mich. 344, 350:

"Malice requires an intent to cause the very harm that results or some harm of the same general nature, or an act done in wanton or wilful disregard of the plain and strong likelihood that some such harm will result. It requires also on the negative side the absence of any circumstance of justification, excuse, or recognized mitigation."

It is axiomatic that the law presumes every person to intend the usual consequences which accompany the use of the means employed in the manner employed. People v. Hodges (1917), 196 Mich. 546, 551, later cited with approval in People v. Medley (1954), 339 Mich. 486. Here, the testimony of a ballistics expert tended to refute defendant's contention that they were engaged in "tussling" at the time of the shooting. The ballistics expert testified that the gun had to be at a distance of 18 inches or more when fired; furthermore, testimony concerning the angle of the bullet passing through the body indicated that defendant must have pushed his wife away prior to the firing of the gun. The malice and felonious intent required for second-degree murder can be inferred from the totality of the circumstances as disclosed by the testimony.

The trial judge, as trier of fact, found from the evidence before him that the defendant was guilty of second-degree murder beyond a reasonable doubt. The trial records and transcript support such a finding. People v. Moss (1969), 16 Mich. App. 295.

Affirmed.