Appeal from Monroe, William J. Weipert, Jr., J.
McGregor, P. J., and D. E. Holbrook, Jr. and M. J. Kelly, JJ. D. E. Holbrook, Jr., J., concurred. M. J. Kelly, J. (concurring in result).
1. Homicide -- Felony Murder -- Lesser Included Offenses -- Elements -- Jury.
The Court of Appeals has split on the issue of whether second-degree murder can ever be a lesser included offense of felony murder, but the better rule is that the elements of the felony may be separated from the malice required for murder and jury verdicts of lesser included homicide offenses are therefore permissible.
2. Homicide -- First-Degree Murder -- Statutes -- General Provisions -- Precedence -- Jury.
The first-degree murder statute, which explicitly provides that all murder committed in the perpetration or attempt to perpetrate any robbery shall be murder in the first degree, must be given precedence over the general provision that the jury shall by their verdict determine the degree of a charged crime.
3. -- Homicide -- Felony Murder -- Instructions to Jury -- Lesser Included Offenses -- Appeal and Error.
It is error for a trial court to instruct a jury in a felony murder trial that they may find the defendant guilty of second-degree murder rather than first-degree where they also find that the defendant was involved in the perpetration of a robbery when the killing occurred; a jury must be limited, when there is no evidence of any crime less than felony murder, to two possible verdicts: guilty of first-degree murder, or not guilty.
4. Courts -- Jury -- Instructions -- Disregarding Law.
It is improper to convey to a jury that they have the power to disregard the law.
5. Homicide -- Felony Murder -- Lesser Included Offenses -- Second-Degree Murder -- Instructions to Jury -- Robbery -- Appeal and Error.
An instruction to a jury in a felony murder trial that they could find the defendant guilty of second-degree murder rather than first-degree, where they also found that the defendant was perpetrating a robbery when the killing occurred, is erroneous, but such error was not reversible where defense counsel approved the instruction and the subsequent second-degree murder verdict established that the jury was convinced beyond a reasonable doubt that the defendant was guilty of murder and she was not prejudiced by the reduction in degree.
Concurring in Result by M. J. Kelly, J.
6. -- Instructions to Jury -- Lesser Included Offenses -- Facts -- Evidence -- Different Interpretations.
No instructions as to a lesser included offense need be given a jury in a criminal case where there is no evidence of such lesser offense or the facts are such that the court or the jury would be obliged to conclude that the defendant was guilty of the offense as charged or not guilty, but a charge as to a lesser offense should be given, especially when requested, where the evidence is subject to different interpretations which would justify a finding of guilt of the lesser offense.
The opinion of the court was delivered by: Mcgregor
Linda Craig was convicted of second-degree murder. Defendant appeals.
In the early morning of November 2, 1973, one Thomas Warren was robbed and brutally murdered while hitchhiking in Monroe County. This defendant and another person were arrested for the crime and charged with felony murder. MCLA 750.316; MSA 28.548. Before trial, defendant's accomplice pled guilty to second-degree murder and as a result, defendant was tried alone on the original charge. She was convicted by the jury of murder in the second degree, MCLA 750.317; MSA 28.549, and subsequently sentenced to 10 to 30 years in prison. She now appeals her conviction as a matter of right.
Defendant first claims that the trial court should not have instructed the jury as to second-degree murder. She argues that there can never be any lesser included offenses to the charge of felony murder and, consequently, her conviction of second-degree murder must be reversed.
The issue of whether second-degree murder can ever be a lesser included offense of felony murder has split our Court and is currently under consideration by our Supreme Court. In People v Bufkin, 43 Mich App 585; 204 NW2d 762 (1972), and People v Graves, 52 Mich App 326; 217 NW2d 78 (1974), felony murder was viewed as "a creature of statute in which the element of premeditation is conclusively presumed by proof of the perpetration or attempt to perpetrate a specific felony. As such, neither second-degree murder nor manslaughter can ...