People v. Van Wyck , 83 Mich. App. 581 ( 1978 )

83 Mich. App. 581 (1978) 269 N.W.2d 233

PEOPLE
v.
VAN WYCK.

Docket No. 78-1378 (formerly 20435).

Michigan Court of Appeals.

Decided May 25, 1978.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Harold S. Sawyer, Prosecuting Attorney, and Craig S. Neckers, Assistant Prosecuting Attorney, for the people.

O'Toole, Stevens, Schuler, Johnson, Hipkiss, Piasecki & Knowlton, for defendant.

Before: DANHOF, C.J., and D.E. HOLBROOK and D.L. MUNRO,^[*] JJ.

ON REMAND

PER CURIAM:

In People v Van Wyck, 402 Mich. 266; 262 NW2d 638 (1978), the Supreme Court, holding that manslaughter was not a necessarily included lesser offense of murder, reversed our prior decision in People v Van Wyck, 72 Mich. App. 101; 249 NW2d 311 (1976), and People v Van Wyck (On Rehearing), 76 Mich. App. 17; 255 NW2d 754 (1977), and remanded the case for our determination of "whether the evidence adduced at trial would have been sufficient to support a jury verdict of guilty of the offense of manslaughter".

The record contains slight but sufficient evidence to present a jury question. See Maher v People, 10 Mich. 212, 221-224; 81 Am Dec 781 (1862), and People v Holmes, 111 Mich. 364, 370; 69 N.W. 501 (1896).

While the record does not conclusively establish mitigating circumstances, it does not clearly establish a lack of passion unlike People v Younger, 380 Mich. 678; 158 NW2d 493 (1968), and unlike People v Bryant, 70 Mich. App. 279, 285; 245 NW2d 716 (1976). We cannot say that "there is no evidence to find the existence of manslaughter". The people's case contained evidence from which a jury could have found provocation and the influence of passion even though such a finding would have been inconsistent with the apparent defense theory. See People v John Willie Williams, 26 Mich. App. 218, 221-225; 182 NW2d 347 (1970).

Because the evidence would have supported a conviction of manslaughter, we reverse the defendant's conviction and remand to the trial court for entry of a judgment of conviction of manslaughter and resentencing. However, if the prosecuting attorney is persuaded, in his discretion, that the ends of justice would be better served, upon notification to the trial court before resentencing, the trial court shall vacate the judgment of conviction and grant a new trial on the charge of second-degree murder.

Reversed and remanded.

D.L. MUNRO, J., did not participate.

NOTES

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