People v. Netzel ( 1940 )

Defendant was convicted of assault with a deadly weapon without intending to commit murder and without intending to inflict great bodily harm less than murder. He was the owner of a used auto parts business in the city of Pontiac and had suffered a number of thefts of parts from his yard. He and an employee set watch to apprehend the thieves, and were thus engaged early in the morning of January 21, 1939, when one William Hall and some friends stopped on a street adjoining the yard to leave one of the party at his home. As the friend was about to alight from the car, defendant drove his car up alongside of them, and defendant's employee displayed a gun and at the same time asked what they were doing there. Without responding, Hall ordered his companions to crouch down in the car and he sped away over icy pavement toward the police station. Defendant and his employee followed in hot pursuit, and the prosecution's witnesses claim that three or four shots were fired at their fleeing automobile and that one shot dented the rear license plate. Defendant testified in his own behalf that his employee fired two shots into the ground, and that "he did fire them on the ground because he fired them very quickly * * * out of his particular window of the car and unless he was a contortionist, he couldn't have possibly reached around the windshield there at that particular time and hit the license tag."

When both cars arrived at the police station, defendant and his employee were disarmed. He had no gun permit nor was he deputized to make arrests. Defendant, although not an attorney, chose to defend himself. After his conviction by a jury, he engaged counsel to prosecute this appeal.

There is no merit in the argument that the accused had no means of knowing under which statute he was being prosecuted because the information was worded according to Act No. 328, § 82, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-82 etseq., Stat. Ann. § 28.277 et seq.), but it concluded with a reference to section 84 of the same act. The concluding reference to the section of the statute under which the charge is based is mere surplusage. People v. Lane, 124 Mich. 271;People v. Murn, 220 Mich. 555. See, also, 3 Comp. Laws 1929, § 17261 (Stat. Ann. § 28.987), and 3 Comp. Laws 1929, § 17273 (Stat. Ann. § 28.999). The language of the information clearly informed defendant of the charge against him.

Error is assigned to the court's charge to the jury. Defendant submitted no requested instruction. The situation is covered by statute, 3 Comp. Laws 1929, § 17322 (Stat. Ann. § 28.1052):

"It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved. The court shall instruct the jury as to the law applicable to the case and in his charge make such comment on the evidence, the testimony and character of any witnesses, as in his opinion the interest of justice may require. The failure of the court to instruct on any point oflaw shall not be ground for setting aside the verdict of thejury unless such instruction is requested by the accused."

The instruction now assailed was as follows:

"Under the charge that I have given you and under the proofs, as produced, there are only two possible verdicts, one of guilty as charged, the other, not guilty."

The objection is that lesser offenses are included within the crime charged (Hanna v. People, 19 Mich. 316; People v. Durham,170 Mich. 598; People v. Burk, 238 Mich. 485; Fish v. People of the State of Michigan (C.C.A.),62 Fed. [2d] 659), and that the instruction given erroneously excluded the possibility of a verdict of guilty of an inferior crime. Section 17325, 3 Comp. Laws 1929 (Stat. Ann. § 28.1055), provides:

"Upon an indictment for any offense, consisting of different degrees, as prescribed in this chapter, the jury may find the accused not guilty of the offense in the degree charged in the indictment and may find such accused person guilty of any degree of such offense, inferior to that charged in the indictment, or of an attempt to commit such offense."

Ordinarily the failure to instruct the jury that they may find the defendant guilty of inferior crimes included within the crime charged is not a ground for setting aside the verdict unless requested charges are submitted and refused.People v. Allie, 216 Mich. 133; People v. Collins, 216 Mich. 541; People v. Manchester, 235 Mich. 594;People v. Burk, supra; People v. Jones, 273 Mich. 430. However, in People v. Jones, supra, Justice FEAD pointed out that "the rule does not excuse improper instructions." In the case before us, as in the Jones Case, the trial court did more than fail to charge upon the included offenses, but affirmatively excluded them from the jury's consideration. This was improper because the statute (3 Comp. Laws 1929, § 17325 [Stat. Ann. § 28.1055]) expressly authorized the jury to find defendant guilty of a lesser offense than the degree of assault charged.

The statute protects the accused by giving the jury a leeway to convict him of a lesser offense when they are convinced that a crime has been committed, although they may have some doubt that the proofs make out the major crime. When the possibility of returning a verdict of an included offense is excluded, rather than exonerate the accused completely, they might convict him of the major charge. Defendant was denied the protection the statute accords.

Other claims of error need not be discussed. Those that have a semblance of merit will not occur on a new trial.

For the erroneous charge, we should reverse the judgment of conviction, and should grant a new trial.

CHANDLER and WIEST, JJ., concurred with BUTZEL, J.