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12/18/75 PEOPLE v. CARTER

December 18, 1975

PEOPLE
v.
CARTER



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

SYLLABUS BY THE COURT

1. Homicide -- Felony Murder -- Lesser Included Offenses.

There are lesser included offenses in felony murder (MCL 750.316; MSA 28.548).

2. Homicide -- First-Degree Murder -- Lesser Included Offenses.

Second-degree murder is always a lesser included offense of first-degree murder (MCL 750.316, 750.317; MSA 28.548, 28.549).

3. Homicide -- First-Degree Murder -- Second-Degree Murder.

First-degree murder is second-degree murder with an additional element, viz., either premeditation or the perpetration or attempt to perpetrate an enumerated felony (MCL 750.316, 750.317; MSA 28.548, 28.549).

4. Homicide -- Murder -- Co-defendants -- Participation.

A jury in a trial for murder need not determine which one of two co-defendants shot the victim, where the evidence is such that the jury is free to believe that the defendants acted in concert.

The opinion of the court was delivered by: Kavanagh

Andrew Carter and Andrew Bufkin were tried for first-degree murder in Recorder's Court of Detroit, Joseph E. Maher, J. The Judge instructed the jury that they could consider the lesser included offenses of second-degree murder and manslaughter. Defendants were convicted by the jury of second-degree murder. The Court of Appeals, V. J. Brennan and O'Hara, JJ., affirmed, Lesinski, C. J., Dissenting as to Carter. (Docket Nos. 8317, 8408). The Court of Appeals held that because the evidence would have been sufficient to convict Carter of first-degree murder, his conviction of second-degree murder was proper, but ruled that in future prosecutions for felony murder, the trial Judge must instruct the jury that its verdict shall be guilty of murder in the first degree or not guilty. On rehearing the Court of Appeals affirmed its prior decision. Defendant Carter appeals. Held:

1. There are lesser included offenses in first-degree felony murder, and second-degree murder is always a lesser included offense in first-degree murder.

2. The contrary prospective rule of People v Bufkin, 43 Mich App 585; 204 NW2d 762 (1972), On Rehearing, 48 Mich App 290; 210 NW2d 390 (1973), is disapproved.

3. The jury need not have determined which one of the co-defendants was the person who shot the victim, because on the evidence presented they were ...


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