People v. Hicks , 88 Mich. App. 675 ( 1979 )

88 Mich. App. 675 (1979) 279 N.W.2d 45

PEOPLE
v.
HICKS

Docket No. 77-3416.

Michigan Court of Appeals.

Decided February 21, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.

Carl Ziemba, for defendant on appeal.

Before: BEASLEY, P.J., and BRONSON and N.J. KAUFMAN, JJ.

PER CURIAM.

Defendant was charged with felony murder, in violation of MCL 750.316; MSA 28.548, and armed robbery, contrary to MCL 750.529; MSA 28.797, in connection with the September 24, 1974, robbery of a "dope house" in which three individuals were killed. Following a jury trial held June 10-17, 1977, defendant was convicted of voluntary manslaughter, MCL 750.321; MSA 28.553, and armed robbery. Defendant was sentenced to concurrent terms of 10 to 15 years imprisonment for manslaughter and 15 to 25 years for armed robbery. He now appeals as of right.

Defendant's first contention is that the trial court erred in its felony-murder instructions by removing the element of malice from the jury's consideration. Our Court has split on the issue of whether malice is imputed from the underlying felony or must be submitted to the jury as a separate element. Compare, for example, People v Fountain, 71 Mich. App. 491; 248 NW2d 589 (1976), People v Till, 80 Mich. App. 16; 263 NW2d 586 (1977), and People v Wilson, 84 Mich. App. 636, 639-655; 270 NW2d 473 (1978) (N.J. KAUFMAN, J., dissenting).

In the case at bar the judgment gave a correct instruction on malice.^[1] However, in response to an objection by the prosecutor, just before the jury retired to deliberate, the judge told the jury that the intent required for the robbery was sufficient for murder.^[2] This instruction would have been erroneous under the rule announced in Fountain. Even so, the application of the Fountain rule to the present case would not require reversal. It is clear that defendant was not prejudiced by the arguably incorrect instruction. Defendant was convicted of manslaughter, and as stated in People v Hansma, 84 Mich. App. 138, 144; 269 NW2d 504 (1978), "murder, absent malice, is manslaughter". See also People v Dietrich, 87 Mich. App. 116; 274 NW2d 472 (1978). Thus we find no cause for reversal on this claim.

Secondly, defendant argues that his right not to be placed twice in jeopardy for the same offense^[3] was violated by the two convictions. We disagree. Again, had defendant been convicted of felony murder and the underlying armed robbery, his contention would have merit. See People v Anderson, 62 Mich. App. 475; 233 NW2d 620 (1975), People v Wilder, 82 Mich. App. 358, 364; 266 NW2d 847 (1978), lv gtd on other grounds, 403 Mich. 816 (1978). However, there is nothing constitutionally impermissible about convictions of manslaughter and armed robbery. The two crimes have different elements and different statutory purposes, and neither crime is a lesser included offense of the other. See People v Ora Jones, 395 Mich. 379, 389-390; 236 NW2d 461 (1975). Thus, defendant's second contention must also be rejected.

Defendant raises two additional claims of error, one relating to the jury instructions and one concerning the admission of a shotgun. We have examined the record and have found these claims to be without merit.

Affirmed.

NOTES

[1] "Third, that at the time of the armed robbery which caused the death of the deceaseds, the defendant either intended to kill the deceaseds or consciously created a very high degree of risk of death to another with the knowledge of its probable consequences.

* * *

"Fifth, the Defendant must have caused the death without justification, excuse or mitigation."

[2] "Felony murder, the element of unlawful intent is satisfied if you find beyond a reasonable doubt that the Defendant intended the robbery.

"It is not necessary that the Defendant intended the death of the Deceaseds.

"What I'm simply saying, under the law in Michigan felony murder means in the perpetration of a felony that that is if I come in to rob and in the perpetration of a robbery I kill you then the wrongful intent as to the murder is satisfied when the people establish that I intended to rob you.

"Do you understand what I'm saying? Does anybody have any problems with that?

"JUROR NUMBER 9: I don't understand what you said.

"THE COURT: Okay. Felony murder under the law in Michigan means that where you murder ordinarily has to be proved, there is a premeditation, wrongful, with malice and that is a plan. But felony murder simply means that the People have to prove that there was a felony being committed, that the Defendant intended to commit a felony, that is armed robbery, and during the course of the completion of the felony he killed a person. That's what makes it murder in the first degree.

"Do you understand what I'm saying? They have to prove beyond a reasonable doubt the Defendant intended the robbery and in the perpetration of the robbery the people were killed and therefore he satisfied the element of wrongful intent."

[3] US Const, Ams V and XIV; Const 1963, art 1, § 15.