People v. Berryhill , 8 Mich. App. 497 ( 1967 )

8 Mich. App. 497 (1967) 154 N.W.2d 593

PEOPLE
v.
BERRYHILL.

Docket No. 2,333.

Michigan Court of Appeals.

Decided November 30, 1967.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Thaddeus F. Hamera, Chief Trial Lawyer, and Max D. McCullough, Assistant Prosecuting Attorney, for the people.

John H. Cresswell, for defendant.

T.G. KAVANAGH, J.

This is an appeal from a denial of a motion for a new trial following a conviction on February 24, 1966, of assault with intent to do great bodily harm less than murder.^[*]

The facts are relatively simple and not in great dispute. The defendant, after an altercation with one William Sheets, was ejected from a tavern known as the Starlight Inn. He returned to the tavern, attempted to hit Sheets with a beer bottle and struck one Leo McMillan. He defended the charge on the theory that he was too intoxicated to form the specific intent required for conviction under the statute.

The appeal makes three assertions of error:

"1. Did the court err when it allowed the jury the liberty to convict on the testimony of only one witness who has been conclusively shown by impeachment to be unworthy of belief?

"2. Does failure to file a bill of particulars, when a timely request therefor has been made, cause the defendant's rights to be irreparably damaged when the crime charged is a statutory crime of specific intent and not a common-law crime, and the defendant, as a result of said failure, is first apprised of the prosecution's actual charge against the defendant in the opening statement at the trial of said cause?

"3. Did the court commit error in instructing the jury that they could not find the defendant guilty of simple assault and battery but could find the defendant guilty of either felonious assault with a dangerous weapon or assault with intent to do great bodily harm less than the crime of murder?"

The first question should be more accurately stated to raise the question of whether there was evidence sufficient to support a finding of guilt beyond a reasonable doubt. See People v. Schram (1965), 1 Mich App 279. Since this question was properly preserved for appellate review by the defendant's motion for new trial, we have considered the evidence carefully and conclude that there was sufficient evidence to support a finding of guilt beyond a reasonable doubt.

The only real issue raised by the defense was the degree of defendant's intoxication. All of the witnesses on the subject told of his drinking and only one said he was "sober," and this witness, claims the defendant, was impeached. Thus the defendant claims the "overwhelming weight of the evidence" was that the defendant was intoxicated. But even if granted, this only gets him halfway home.

To be a defense to a specific intent crime, intoxication must be so complete that the defendant didn't know what he was doing or if he knew what he was doing he didn't know why, or didn't know that what he was doing was naturally capable of causing the harm alleged to be intended. See Roberts v. People (1870), 19 Mich 401 and People v. Hearn (1958), 354 Mich 468.

This matter is specifically for the jury's consideration under proper instruction for it is the gravamen of the charge.

Here the instruction was adequate and the evidence ample to support the conclusion that defendant was not so intoxicated as to be incapable of forming the required intent which was the practical effect of the jury's verdict. We find no error in this regard.

The second allegation of error, viz., the failure to provide a bill of particulars, does not persuade us of injustice. The formal demand was made but not insisted upon. While we believe the matter is properly left to a trial court's discretion we are satisfied from the record here that the defendant waived any right he might have had to such bill of particulars.

We have examined the court's instructions and conclude that they were, on the whole, accurate and complete, and thus find no error on the third ground asserted.

Affirmed.

J.H. GILLIS, P.J., and WEIPERT, J., concurred.

NOTES

[*] CL 1948, § 750.84 (Stat Ann 1962 Rev § 28.279).