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01/26/76 PEOPLE v. MCGHEE

January 26, 1976

PEOPLE
v.
MCGHEE



Appeal from Wayne, Michael L. Stacey, J.

Leave to appeal denied, 396 Mich 861.

J. H. Gillis, P. J., and Allen and M. J. Kelly, JJ.

SYLLABUS BY THE COURT

1. -- Instructions to Jury -- Sufficiency of Instructions -- Essential Ingredients of Crime.

Instructions to the jury in a criminal trial which include a reading of the information and the applicable statutes will generally be found to be sufficiently comprehensive to explain the essential ingredients of the crime charged.

2. -- Instructions to Jury -- Felony Murder -- Underlying Felony -- Fair Trial.

The test to determine whether a case requires reversal is not whether there are some irregularities, but whether the defendant had a fair trial, and an instruction to the jury on felony murder which did not include an instruction on the underlying felony of robbery does not require reversal where there was no question that a robbery had taken place and that the security guard at the scene of the robbery was found strangled and shot.

The opinion of the court was delivered by: Allen

Larry McGhee was convicted of murder in the perpetration or attempted perpetration of a robbery. Defendant appeals.

Defendant and his brother, Lewis Cecil McGhee, were charged in a one-count information with murder in the perpetration or attempted perpetration of a robbery, MCLA 750.316; MSA 28.548. Prior to trial, Lewis pleaded guilty to manslaughter. Defendant was tried by jury, found guilty of the offense charged, and sentenced to life imprisonment. He appeals of right.

Ronald Jason, the deceased, was employed as a store detective at the Hughes & Hatcher clothing store in Lincoln Park. At 5:07 p.m. Sunday, May 5, 1974, the employee last to leave the store delivered a cash drawer to Jason and helped him place the money into a box which, according to the store procedure, Jason would then have taken to the store safe on the balcony. When, at 6 p.m., the closing signal for the store had not been received by the central alarm agency, two store officials proceeded to the store. Upon entering the store they found empty cash drawers in disarray. They proceeded to the balcony room which housed the store safe, and found the body of the deceased lying face up, a pool of blood on the floor, a scrape diagonally across the face. On the floor next to the safe lay two or three empty cash drawers. The county medical examiner who performed the autopsy testified he found deceased's hands tied behind his back, a tie wound around his neck and two gunshot wounds. Cause of death was given as multiple gunshot wounds and strangulation. Powder burns about the neck indicated the shots had been fired at close range. An audit constructed from the week-end sale slips determined the store loss to be about $5,455.15.

Both defendant and his brother took the stand. Each blamed the other for the homicide and each claimed the other had entered the store with intent to rob. Neither witness contested the fact that the store was robbed or that Ronald Jason was shot during the robbery. On appeal, defense counsel assigns three errors, two of which we reject for the reasons footnoted below. *fn1 The remaining allegation of error is significant and deserves special comment.

In instructing the jury as to the offense charged, the trial Judge read the information and quoted verbatim the felony-murder statute. *fn2 That was all. At no point did the court define for the jury the essential elements of the underlying felony -- robbery -- nor did the court define murder or what was meant by the phrase "and a killing as a result thereof". Appellate counsel for defendant forcefully and eloquently argues that despite the lack of objection by trial counsel, the omission of the essential elements of the underlying felony left the jury without guide or benchmark as to what had to be proven beyond a reasonable doubt before a verdict of guilty could be returned. Citing People v MacPherson, 323 Mich 438; 35 NW2d 376 (1949), and selected Federal decisions, *fn3 defendant contends that where the court fails to instruct on an essential element of the case, reversible error is committed. The omission to fully charge, appellant counsel says, constitutes an inadequate instruction on an essential ingredient of the crime which demands reversal even though no objection to the charge was found. We do not agree.

We perceive the charge not as one which totally omits an essential ingredient of the crime with which defendant is charged but, rather, as one wherein the issue involved is whether the ingredients were adequately explained. The trial court did read the statute under which defendant was charged. The issue presented is whether, given the circumstances in this case, this charge was adequate. It has been repeatedly stated that a charge which includes a reading of the information and the applicable statutes will generally be found to be sufficiently comprehensive. People v Kruper, 340 Mich 114; 64 NW2d 629 (1954), People v Murry 59 Mich App 555; 229 NW2d 845 ...


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