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02/09/76 PEOPLE v. MCNAMEE

February 9, 1976

PEOPLE
v.
MCNAMEE



Appeal from Calhoun, Ronald M. Ryan, J.

Leave to appeal applied for.

D. E. Holbrook, P. J., and R. M. Maher and D. F. Walsh, JJ.

SYLLABUS BY THE COURT

1. Indictment and Information -- Amended Information -- Different Offense -- Murder -- Felony Murder.

An amendment to an information charging a defendant with first-degree murder which added the words "in the perpetration of a robbery" did not effectuate a change in the charge where the original information cited the first-degree murder statute which includes felony murder and defendant was aware of the crime with which he was charged.

2. -- Evidence -- Admissions -- Corpus Delicti -- Circumstantial Evidence -- Reasonable Inferences.

The prosecution may properly introduce a defendant's admissions at trial after it has established the corpus delicti of the charged offense, which may be shown by circumstantial evidence and the reasonable inferences to be drawn therefrom.

3. Homicide -- Felony Murder -- Evidence -- Reasonable Inferences -- Corpus Delicti.

It is reasonable to infer from testimony that where a safe and cash register in which receipts and money were normally kept were found empty at the scene of a homicide that property was taken by force from the presence of the victim, thereby establishing the corpus delicti of felony murder.

4. Witnesses -- -- Accomplice as Witness -- Res Gestae Witnesses -- Endorsement -- Information.

A coparticipant in a crime is an accomplice and, as such, is not a res gestae witness required to be indorsed on the information.

5. Homicide -- Felony Murder -- Malice -- Collateral Acts -- Implication -- Instructions to Jury.

Malice may be implied where a killing results from an unlawful collateral act or an attempt to commit a criminal offense, and a court may so instruct a jury.

6. -- Right to Effective Counsel -- Self-Representation -- Binding Decision -- Record -- Request for Counsel -- Courts.

A court was bound by a defendant's decision to act as his own attorney and his contention that he was prejudiced because appointed counsel allowed a long delay in processing defendant's motion for new trial is without merit where there was nothing on the record to indicate that the defendant attempted to bring to the court's attention the facts of such a delay and there was no record of defendant's requesting counsel after informing the court of his decision to proceed in propria persona.

7. Jury -- Misconduct -- New Trial -- Prejudice.

Claimed juror misconduct will not justify the granting of a new trial absent a ...


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