People v. McKeller , 30 Mich. App. 135 ( 1971 )

30 Mich. App. 135 (1971) 185 N.W.2d 905

PEOPLE
v.
McKELLER

Docket No. 7594.

Michigan Court of Appeals.

Decided January 25, 1971. Leave to appeal denied June 15, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.

Fred K. Persons, for defendant on appeal.

Before: DANHOF, P.J., and HOLBROOK and VANDER WAL,^[*] JJ.

Leave to appeal denied June 15, 1971. 385 Mich. 755.

PER CURIAM.

The defendant was convicted by a jury of murder in the second degree as charged, CL 1948, § 750.317 (Stat Ann 1954 Rev § 28.549). He was sentenced to a term of 4 to 12 years in prison.

On appeal the issues raised are whether there was sufficient evidence to sustain the verdict, and whether there was error in the trial court's instructions to the jury on self-defense and malice.

During the afternoon of June 8, 1968, there were fights between members of the defendant's family and the deceased's family. The police were called twice.

In response to a telephone call by his daughter, the defendant arrived at the scene of the fighting looking for the deceased. A confrontation took place between the deceased who was armed with a shotgun and the defendant who had a pistol. The two men agreed to talk. Fighting again broke out between the deceased's wife and the defendant's daughter. There was conflicting testimony as to whether the deceased raised his shotgun and stepped towards the defendant or whether the deceased kept his shotgun pointed downwards and stepped towards the fighting women. The defendant admitted that he shot the deceased twice, but claimed that he acted in self-defense. The credibility and weight to be given testimony is for the jury to decide. People v. Moss (1969), 16 Mich. App. 295. We hold that there was sufficient evidence presented from which the jury could find beyond a reasonable doubt that the defendant was guilty of murder in the second degree.

On appeal defendant asserts that there was not sufficent evidence as to the element of malice; therefore, it was error for the trial court to deny a motion for a directed verdict as to murder in the second degree. Malice can be inferred from the type of weapon used and the manner in which the crime was committed. People v. Lem Dumas (1970), 25 Mich. App. 173; People v. Case (1967), 7 Mich. App. 217. The totality of the circumstances surrounding this armed confrontation are sufficient to warrant a finding of malice on the part of the defendant. The instant case differs significantly from People v. Hansen (1962), 368 Mich. 344; here, the defendant chose to meet the deceased on a neutral field of combat, while in Hansen the deceased forced his way into defendant's home. Since malice could be inferred, it was proper for the trial court to deny the motion for directed verdict and, thereby, allow the jury to perform its function as the trier of facts.

The trial court's instructions to the jury included the defense counsel's requested instructions. The defense counsel expressed satisfaction with the instructions given by the court. No objection having been made, the alleged errors in the instructions have not been saved for appellate review absent a manifest injustice. People v. Charles Jackson (1970), 21 Mich. App. 132; GCR 1963, 516.2. We find no manifest injustice.

Affirmed.

NOTES

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