People v. McDaniels , 70 Mich. App. 469 ( 1976 )

R. M. Maher, P. J.

On April 2, 1970, defendant Arthur McDaniels was convicted by a jury of second-degree murder contrary to MCLA 750.317; MSA 28.549, and was subsequently sentenced to a prison term of from six to ten years.

He appeals, by leave granted, claiming reversible error on the part of the trial court in its instructions to the jury on defendant’s claim of self-defense.

Defendant killed his wife in the bedroom of their marital home on March 19, 1968. He testified that he called his wife from work on that day and asked her to bring him a shirt. When she failed to do so, he returned home from work, lay down on their bed, and fell asleep. A little while later, she returned home in a very intoxicated state and woke him up. He asked about the shirt and her whereabouts. She didn’t answer, but had what he called a "wild look” in her eyes. She then left the bedroom, and defendant proceeded to dress. She then returned with a knife and threatened to kill him. She attacked him, cutting his jacket with the knife. He grabbed his nearby gun and pulled the trigger just once. He threw the knife that she had used to attack him into the oven, then went to a gas station and called the police.

A police detective testified that the knife was found in the oven and that the blood on it was decedent’s.

Defendant’s entire defense to the murder charge was self-defense: he was defending himself from his wife’s murderous assaults.

Because defendant was the only eyewitness to the offense, the prosecutor, by "shooting holes” in defendant’s story, attempted to prove that the killing was murder. He pointed out that defendant shot his wife nine times. The prosecutor also showed that defendant allowed his wife access to both the knife and gun used even though defendant claimed that he was afraid of his wife because she had "a thing” for knives, and that he hid all the knives because he was afraid. The prosecutor attempted to show that defendant killed his wife because she drank and went out with other men. Wherever the truth may lie, the record clearly shows that the marriage was a troubled and unhappy one.

The trial judge instructed the jury, in part, as follows:

"There is a requirement that there be no way open to the defendant to retreat at all. Self defense then is proper in this case and is the right to every person, but justification for taking human life depends on the coexistence of the three conditions. First, that he was not the aggressor bringing on the difficulty as I just pointed out, second, there must have existed at the time of the fatal blow in the defendant’s mind a presence of an impending necessity to strike such a blow in order to save himself from death or great bodily harm and third, there must be no way open for the defendant to retreat or avoid the conñict. ”(Emphasis added.)

No objection was voiced at trial but on appeal defendant claims reversible error in that defendant was under no duty to retreat since he was in his own home when the shooting occurred.

We agree and reverse the defendant’s conviction.

Plaintiff concedes that the instruction complained of here can no longer be properly given in Michigan. See People v Lenkevich, 394 Mich 117; 229 NW2d 298 (1975), but argues that in 1970, the year of defendant’s trial, the instruction was permissible.

We need not decide whether the holding of Lenkevich should be retroactively applied. The Supreme Court acknowledged in that case that it had never directly ruled on the issue of whether one dweller was obliged to retreat in the face of an attack by a co-dweller. While recognizing a split of authority nationwide on the issue, the Court held that the better rule was one that required no retreat, even when the assailant was defendant’s co-dweller. The Court pointed to language in an earlier case, People v Stallworth, 364 Mich 528; 111 NW2d 742 (1961), to indicate that it believed Michigan law supported this view.

More important to our decision here is the status of the law in 1970, the year of defendant’s trial. In People v McGrandy, 9 Mich App 187; 156 NW2d 48 (1967), this Court spoke to the issue, recognized it as one of first impression in this state and found no duty to retreat in one’s own dwelling although the assailant be a co-dweller. Lenkevich duplicated both the reasoning and the holding of McGrandy.

As of the date of defendant’s trial, no other panel of this Court had reached any different conclusion and the trial court was duty-bound to follow it. A ruling of this Court is binding on trial judges until either another panel disagrees or until the Supreme Court says otherwise. See Hackett v Ferndale City Clerk, 1 Mich App 6; 133 NW2d 221 (1965).

Defense counsel in McGrandy requested the court to instruct the jury that defendant had no duty to retreat. No such request and no objection was voiced in the instant case, but this is of no moment. In People v Liggett, 378 Mich 706, 714; 148 NW2d 784 (1967), the Supreme Court said:

"It is settled law of this State that the trial judge should instruct the jury in criminal cases as to general features of the case, define the offense and indicate that which is essential to prove to establish the offense, even in the absence of request. A case may be reversed because the charge omits a legally essential ingredient. People v Prinz, 148 Mich 307 [111 NW 739 (1907)]; People v Kanar, 314 Mich 242, 254 [22 NW2d 359 (1946)]; People v Hearn, 354 Mich 468 [93 NW2d 302 (1958)]. Similarly, without a request, a case may be reversed because of an erroneous or misleading charge as opposed to one which merely omits a pertinent though not legally necessary point. People v MacPherson, 323 Mich 438, 448, et seq. [35 NW2d 376 (1949)]; People v Guillett, 342 Mich 1, 7 [69 NW2d 140 (1955)]; People v Oberstaedt, 372 Mich 521, 526 [127 NW2d 354 (1964)]. Defendant has a right to have a properly instructed jury pass upon the evidence. People v Visel, 275 Mich 77, 81 [265 NW 781 (1936)].”

Reversed and remanded for a new trial.

D. C. Riley, J., concurred.