T. G. Kavanagh, C. J. Williams, Levin, and Fitzgerald, JJ., concurred with T. G. Kavanagh, C. J. Lindemer and Ryan, JJ., took no part in the decision of this case. Williams, J. (concurring). Coleman, J. (dissenting).
1. -- Constitutional Law -- Pleading -- Indictment and Information.
It is elementary that a defendant may not be convicted of a crime with which he was not charged because the Sixth and Fourteenth Amendments give a defendant the right to know the nature and cause of the accusation against him.
2. -- Lesser Included Offenses -- Pleading -- Due Process.
One guide to the minimal notice requirements for a lesser included offense in the crime charged is that due process is met if the greater charged crime and the lesser offense are of the same or of an overlapping nature.
3. -- Lesser Included Offenses -- Pleading -- Due Process -- Fair Notice.
A lesser offense is or may be included within a greater offense if the lesser offense is of the same class or category or closely related to the originally charged offense so as to provide fair notice to the defendant that he will be required to defend against it; the fact that a lesser offense within the same category as the greater charged offense has an element not included in the greater does not preclude the lesser from being included in the greater.
4. -- Lesser Included Offenses -- Instructions to Jury.
The duty of the trial Judge to instruct on lesser included offenses is determined by the evidence; if evidence is presented which would support a conviction of a lesser included offense, refusal to give a requested instruction is reversible error.
5. -- Lesser Included Offenses -- Cognate Offenses.
A lesser offense within the same category as a greater charged offense, which has an element not included within the greater, is a cognate offense if analysis of the offenses demonstrates an overlapping of elements and a common statutory purpose and a cognate offense may be a lesser included offense where the evidence adduced at trial would support a conviction of the lesser offense.
6. Homicide -- Lesser Included Offenses -- Cognate Offenses -- Second-Degree Murder -- Careless Discharge of Firearms.
The offenses of careless, reckless or negligent discharge of firearms causing death and second-degree murder have certain overlapping elements and common statutory purpose: the purpose is protection against killing or injury to the person and the elements relate to a "reckless" state of mind concerning damage to human life and an activity or intended activity to kill or injure a person; the offenses are cognate and the first is a lesser included offense of the second where the evidence adduced would support a verdict of guilt of the lesser offense (MCL 750.317, 752.861; MSA 28.549, 28.436).
7. Homicide -- Manslaughter -- Instructions to Jury.
Giving an unrequested instruction to the jury on voluntary manslaughter, in a trial for second-degree murder, which recognized only the prosecution's theory of the case but ignored the defendant's theory that the killing was accidental was misleading and reversible error.
8. Homicide -- Accident -- Instructions to Jury.
An instruction to the jury in a trial for second-degree murder which mentioned accident in only two places in passing did not fairly and fully present the case to the jury in an understandable manner where the defense theory was that the victim was shot accidentally and whether the shooting was intentional or accidental was the central issue in the case (MCL 750.317; MSA 28.549).
9. -- Lesser Included Offenses -- Cognate Offenses -- Notice.
An information must give notice of a cognate offense either in the original form or, if amendment is possible, in the amended information if the cognate offense is to be considered as a lesser included offense of the offense charged on the evidence presented.
10. -- Lesser Included Offenses -- Cognate Offenses -- Information -- Amendment.
Amendment of an information to include a lesser cognate offense may be allowed by the trial court, but the court should consider whether there is such surprise that a defendant should be entitled to an adjournment or, in an extreme situation, whether the additional charge so changed the complexion of the case that the defendant would not be permitted to fairly develop his case and defend himself and thus would be denied a fair trial.
11. District and Prosecuting Attorneys -- -- Decision to Charge.
The decision to charge a person with a certain crime is the prosecutor's responsibility; the prosecutor determines the initial charge and the courts may not interfere with the process.
12. -- Instructions to Jury -- Lesser Offenses.
A trial Judge is responsible for instructing the jury on the elements of the offense charged and on those lesser offenses which are properly for the jury's consideration under the statute permitting conviction of lesser degrees or attempt of the offense charged as determined by the offense charged and the evidence presented; not every offense possibly committed during the crime is covered by the statute (MCL 768.32; MSA 28.1055).
13. Homicide -- Second-Degree Murder -- Degrees -- Careless Use of Firearm.
A charge of careless, reckless or negligent use of firearms is not a lesser degree of second-degree murder which the jury may consider under the statute permitting conviction of lesser degrees or an attempt of the offense charged (MCL 750.317, 752.861, 768.32; MSA 28.549, 28.436, 28.1055).
14. Homicide -- Second-Degree Murder -- Involuntary Manslaughter -- Degrees.
A defendant was not prejudiced by failure to instruct on involuntary manslaughter in the absence of a request for the instruction where the elements of involuntary manslaughter are inconsistent with and even opposite to those of the second-degree murder charged and the proofs presented (MCL 750.317, 768.32; MSA 28.549, 28.1055).
15. Homicide -- Instructions to Jury -- Sufficiency -- Accident.
An instruction to the jury, in a trial for second-degree murder, in which the defendant maintained that the shooting of the victim was an accident and in which the only two theories advanced were as to "accident" and "intentional killing", in which the Judge listed the four classifications of homicide (felonious, justifiable, excusable, and accidental) and specifically said that only felonious homicides were punishable, instructed on the elements of the crimes charged and the applicable law, and told the jury that in determining whether the defendant intended to kill the victim they were to examine all of the circumstances and facts of the case as disclosed by the testimony and evidence was a sufficient instruction, and no additional instructions were needed.
The opinion of the court was delivered by: Kavanagh
Ora T. Jones was charged with second-degree murder and convicted by a jury in the Recorder's Court of Detroit, Samuel H. Olsen, J. The Court specifically instructed the jury on the elements of second-degree murder and voluntary manslaughter. The Court of Appeals, Lesinski, C. J., and T. M. Burns and O'Hara, JJ., affirmed (Docket No. 13881). The Supreme Court granted leave to appeal to determine whether the Judge erred in not instructing the jury on other offenses. Held:
1. There are two classes of included offenses: (a) "necessarily" included lesser offenses which are such that it is impossible to commit the greater crime without first having committed the lesser; and (b) "cognate" lesser offenses which are related to the greater offense in the sense that they share several elements, and are of the same class or category, but which may contain some elements not found in the greater offense. If the lesser offense is of the same class or category, or closely related to the originally charged offense, so as to provide fair notice to the defendant that he will be required to defend against it, the lesser offense is or may be included within the greater.
2. The evidence will always support conviction of a necessarily included offense if it supports conviction of the greater offense. In the case of cognate offenses, the evidence adduced at the particular trial must be examined to determine whether it would support a conviction of the lesser offense. If evidence has been presented which would support conviction of a lesser included offense, refusal to give a requested instruction on the offense is reversible error.
3. On the evidence presented, the trial court erred in refusing to give the requested instruction on the statutory offense of careless discharge of a firearm (MCL 752.861; MSA 28.436).
4. The trial court erred reversibly in giving on its own motion a misleading instruction on common-law manslaughter which recognized only the prosecution's theory of the case and omitted an instruction on involuntary manslaughter based on the defendant's theory.
5. The evidence would have supported an instruction on the statutory crime of manslaughter resulting from aiming or pointing a firearm intentionally but without malice (MCL 750.329; MSA 28.561), but failure to give it was not reversible error absent a request by defendant.
6. The trial court erred in failing to instruct adequately that an accidental homicide is not murder or manslaughter.
Reversed and remanded for new trial.
Williams, J., concurred but wrote separately to point out a question not present in this case: the information must give notice of a cognate offense either in the original form or, if amendment is possible, in the amended information. If amendment is allowed, there might be such surprise that the defendant should be entitled to an adjournment, or in the extreme the complexion of the case might be so changed that the defendant is denied a fair trial.
Coleman, J., Dissented and would affirm the conviction. The interim rule of instructing on offenses "cognate", "related", or "allied" to the crime charge if requested invites increased confusion and should not be adopted because it will only serve to further blur the lines of responsibility in the criminal Justice process. The prosecutor determines the initial offense to be charged and not every offense possibly committed during a crime is open to consideration by the jury as an inferior degree of the crime charged. The charge of careless, reckless or negligent use of firearms (MCL 752.861; MSA 28.436) is not a degree of the murder charged within the meaning of the statute allowing the jury to find the defendant guilty of an inferior degree of the crime charged. The defendant was not prejudiced by the failure to instruct on involuntary manslaughter; he did not request the instruction and did not offer argument or proofs on the issue. The jury was adequately instructed on the defendant's theory that the shooting was accidental and the defendant did not request additional instructions.
45 Mich App 373; 206 NW2d 453 (1974) reversed.
Defendant's initial conviction of first-degree murder was reversed by the Michigan Court of Appeals. Upon retrial, defendant was charged with second degree murder and convicted by a jury of that offense. That conviction was affirmed by the Court of Appeals. People v Jones, 45 Mich App 373; 206 NW2d 453 (1973). We granted leave to consider the failure to instruct on lesser included offenses.
Testimony indicated that defendant was sitting in the living room of an apartment he shared with the decedent, Phyllis Grace. A female friend of the decedent came to visit her and, on the decedent's invitation, the two women left the living room and entered the kitchen where they carried on a conversation. After a few minutes, while they were standing in the kitchen, defendant rose from the couch, went to a closet, and removed a shotgun he had stored there. He then proceeded to the kitchen door where he aimed the weapon at the decedent and the gun discharged, fatally wounding the decedent.
Two police officers called to the scene testified that upon their entering the apartment the defendant made a statement to the effect that "I just done something I should have done a long time ago". This statement was ruled admissible by the trial Judge subsequent to a Walker -type hearing held during the course of the trial. The defendant denied making such a statement.
The defendant testified that he took the shotgun from a closet and approached the kitchen with the intention of frightening the female companion from the apartment.
He testified that he did not aim the weapon intentionally, that he did not know the weapon was loaded, and that the weapon accidentally discharged when he was bumped by the fleeing female companion.
During both his opening statement and closing argument, defense counsel asserted the shooting was accidental. During his closing argument he also alluded to the fact that the jury might find the defendant guilty of manslaughter rather than murder in the second degree.
The court instructed the jury on murder in the second degree and voluntary manslaughter. Defendant did not object to these instructions.
Subsequent to the giving of these instructions and before the jury retired to consider its verdict, defense counsel requested the trial Judge to instruct the jury on the statutory offense of killing or injuring a person by careless, reckless or negligent discharge of a firearm, *fn1 claiming this was a lesser included offense of second-degree murder. The trial Judge ruled defendant was not entitled to such a charge and refused the request.
Our Disposition of this appeal requires only consideration of the claimed errors in instructing the jury.
We conclude that the trial court erred in the following respects:
1. In refusing to give the requested instruction on the statutory offense of careless discharge of a firearm. ...