People v. ALFRED BROWN

37 Mich. App. 192 (1971) 194 N.W.2d 560

PEOPLE
v.
ALFRED BROWN

Docket No. 9531.

Michigan Court of Appeals.

Decided November 24, 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.

Thomas J. Olejnik, for defendant on appeal.

Before: McGREGOR, P.J., and FITZGERALD and QUINN, JJ.

PER CURIAM.

A jury found the defendant guilty of murder in the first degree, MCLA § 750.316 (Stat Ann 1971 Cum Supp § 28.548), for which he received a sentence of life imprisonment.

It is asserted that the trial judge erred reversibly when he neglected, sua sponte, to charge the jury on other than first-degree murder. The well-established rule in Michigan is exemplified in People v. Phillips (1971), 385 Mich 30, where it was stated:

"Where a request has been made to charge the jury on a lesser included offense, the duty of the trial judge is determined by the evidence. If evidence has been presented which would support a conviction of a lesser offense, refusal to give the requested instruction is reversible error but, in the absence of such a request, the trial court does not err by failing to instruct on the included offenses. People v. Jones (1935), 273 Mich 430." (Emphasis supplied.)

As to defendant's other assignment of error, it is apparent that "poisons" include narcotics such as morphine. 72 CJS, Poisons, § 1, p 162. It is further apparent that when poison has been administered and death ensues, there is an inference that the killing was intentional and with malice aforethought. People v. Gerndt (1928), 244 Mich 622, 1 Wharton's Criminal Evidence (12th ed), § 132, p 251.

There was direct evidence that defendant was one of two men who administered an injection to the deceased victim and his brother, who survived the injection he received. It was not necessary to show further details of the poison used. People v. Kuhn (1925), 232 Mich 310. Premeditation and malice may be inferred from circumstantial evidence. People v. Crawford (1971), 30 Mich App 221.

Affirmed.