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12/18/75 PEOPLE v. FULLER

December 18, 1975

PEOPLE
v.
FULLER



Williams, J. Coleman and Fitzgerald, JJ., concurred with Williams, J. Lindemer and Ryan, JJ., took no part in the decision of this case. T. G. Kavanagh, C. J. (dissenting). Levin, J., concurred with T. G. Kavanagh, C. J.

SYLLABUS BY THE COURT

Opinion of the Court

1. -- Trial -- Evidence -- Trier of Fact.

The trier of fact in a criminal case, particularly the jury, has the right to believe or disbelieve, in whole or in part, any of the evidence presented.

2. -- Aiding and Abetting -- Verdict.

A jury verdict that a defendant was guilty of aiding and abetting a felony murder should not be disturbed where evidence of defendant's activities was presented which was consonant with a theory of active participation in the crime, if the jury believed the evidence.

3. -- Circumstantial Evidence -- Trier of Fact.

It is for the trier of fact to determine if the prosecution has, by the circumstantial evidence presented, negated every reasonable theory consistent with the defendant's innocence of the crime charged.

Dissenting Opinion

T. G. Kavanagh, C. J., and Levin, J.

4. -- Aiding and Abetting -- Evidence -- Sufficiency.

The fact that defendant and an arsonist were seen together, defendant standing by a gate at an alley at the rear of a house, looking around, while the arsonist set fire to the back porch of a house, does not establish that defendant was a lookout aiding and abetting the arson.

5. -- Aiding and Abetting -- Evidence -- Sufficiency.

Speculation by a witness that he guessed that defendant, near the scene of an arson, was acting as a lookout for the arsonist, was not sufficient to allow the Conclusion to be drawn that defendant was acting as a lookout.

6. -- Circumstantial Evidence -- Inferences.

An inference may be drawn from circumstantial evidence in a criminal case only if it follows with impelling certainty from that evidence.

7. -- Circumstantial Evidence -- Inferences.

Allowing a trier of fact to draw an inference in a criminal case only if the inference follows with impelling certainty enforces the requirement that, where the people's case is based on circumstantial evidence, the prosecution must negate every reasonable theory consistent with the defendant's innocence of the crime charged.

8. -- Aiding and Abetting -- Presence -- Sufficiency.

Mere presence, even with knowledge that an offense is about to be committed or is being committed, is not enough to make a person an aider or abettor or a principal in the second degree nor is mere mental approval sufficient, nor passive acquiescence or consent.

9. -- Aiding and Abetting -- Evidence -- Sufficiency.

It is not reasonable to conclude that defendant agreed to act as a lookout for an arsonist or that he did in fact assist the arsonist in perpetrating the crime from the sole fact that the defendant may have been in a position to observe what the arsonist was doing or to warn him of danger.

The opinion of the court was delivered by: Williams

Cornell Fuller was convicted by a jury in Recorder's Court of Detroit, Thomas L. Poindexter, J., of first-degree felony murder. The prosecution contended that he aided and abetted, by acting as a lookout, in an arson which resulted in the death of two girls. The Court of Appeals, Quinn, P. J., and V.J. Brennan and O'Hara, JJ., affirmed (Docket No. 11308). Defendant appeals. Held:

1. A jury may believe or disbelieve, in whole or in part, any of the evidence presented.

2. Evidence was presented which, if believed by the jury, showed that the defendant acted as a lookout for the arsonist.

3. The jury determined that the prosecution had negated every reasonable theory consistent with the defendant's innocence of the crime charged.

Conviction affirmed.

T. G. Kavanagh, C. J., was joined by Levin, J., in voting to reverse the conviction and discharge the defendant. The record does not contain sufficient evidence to support a conviction of felony murder. There was inadequate proof of defendant's intention to act in concert with the principal to set the fire. The fact that the defendant was seen with the arsonist, and that he was seen standing by the alley at the back of the house looking around, does not establish that he was acting as a lookout, nor is a witness's speculation as to what defendant was doing sufficient to allow a Conclusion that he was acting as a lookout.

44 Mich App 297; 205 NW2d 287 (1973) affirmed.

This Court has steadfastly supported the right of the trier of fact, particularly the jury, to believe, or disbelieve, in whole or in part, any of the evidence ...


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