Opinion
Docket Nos. 23226, 23332.
Decided May 19, 1976.
Appeal from St. Clair, Ernest F. Oppliger, J. Submitted April 6, 1976, at Detroit. (Docket Nos. 23226, 23332.) Decided May 19, 1976.
Richard F. Ross was convicted of assault with intent to commit murder and unarmed robbery. Daniel E. Provost was convicted of assault with intent to do great bodily harm less than murder and unarmed robbery. Defendants appeal. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people.
Carl Ziemba, for defendants.
Before: D.F. WALSH, P.J., and ALLEN and M.J. KELLY, JJ.
Defendants were charged with assault with intent to commit murder, MCLA 750.83; MSA 28.278, and unarmed robbery, MCLA 750.530; MSA 28.798. The record indicates that defendants attacked an elderly male in his residence, and defendant Ross repeatedly kicked at the head of the senior citizen causing severe injury. Defendant Ross was jury-convicted of the charged offenses, and sentenced to concurrent terms of 7-1/2 to 25 and 5 to 15 years in prison. Defendant Provost was jury-convicted of unarmed robbery and assault with intent to do great bodily harm less than murder, MCLA 750.84; MSA 28.279, and received 4 to 10 years on the assault conviction and 4 to 15 years for the unarmed robbery conviction. Defendants appeal by right.
I.
Must the unarmed robbery convictions be set aside owing to lack of proof aliunde the admissions of defendants that property was taken?
The corpus delicti of a crime must be established by proof independent of any extrajudicial confession or admission by an accused. People v Allen, 390 Mich. 383; 212 N.W.2d 21 (1973), People v Harris, 64 Mich. App. 503; 236 N.W.2d 118 (1975). In our view, such was shown. The record reflects, among other things, that defendants possessed a flashlight shortly after the alleged offense took place, that witnesses observed them wiping fingerprints from the flashlight and wrapping it in a blue towel, and that police recovered the towel and flashlight from a trash barrel at a location defendants had gone to by taxi after the criminal transaction. Although the victim's mental faculties were affected by the head injury, he testified that the flashlight looked just like the one he owned. The corpus delicti may be shown by circumstantial evidence and reasonable inferences. People v Mumford, 60 Mich. App. 279; 230 N.W.2d 395 (1975). Therefore, even if one discounts extrajudicial admissions of defendants that they took money, a coin purse, and a flashlight from the victim, we find that the jury could reasonably infer that property (the flashlight) was taken and that defendants' actions support no reasonable inference of innocence.
II.
Whether the lower court's charge to the jury shifted the burden of proof on the element of intent to defendants and relieved the prosecutor of having to establish the intent element?
The disputed instruction reads:
"Now, the question of intent is one that is hard to establish directly, because grown persons do not always disclose the object they have in view in any acts in which they may indulge, and you have to gather the intent from the character of the act, the circumstances surrounding it, and from conduct of a like character which may appear as tending to aid you in finding and discovering it. But in connection with all this, unless the testimony satisfies you of something else, you are warranted in holding a party responsible for the natural, probable and legitimate consequences of his acts. The intent may be presumed from the doing of a wrongful, fraudulent or illegal act. But this inference or presumption is not necessarily conclusive. The law presumes that every man intends the legitimate consequences of his own acts."
No objection was made by trial counsel and, in fact, they expressed satisfaction with the court's charge. Normally, failure to object precludes assignment of error on appeal in the absence of a manifest injustice. People v Spaulding, 42 Mich. App. 492; 202 N.W.2d 450 (1972), lv den, 388 Mich. 809 (1972). Nevertheless, an accused is entitled to instructions on the essential elements which are not erroneous or misleading. People v Liggett, 378 Mich. 706; 148 N.W.2d 784 (1967). Although one might argue that the term "the law presumes" tends to mislead, under existing jurisprudential law the instant charge, when read as a whole, neither relieved the prosecution of its burden, shifted the burden to defendants, nor requires reversal. People v Adams, 48 Mich. App. 595; 210 N.W.2d 888 (1973), People v Jordan, 51 Mich. App. 710; 216 N.W.2d 71 (1974).
People v Blake, 58 Mich. App. 685, 688; 228 N.W.2d 519 (1975).
See also the opinions of V.J. BRENNAN, J., and BASHARA, J., in People v Smith, 67 Mich. App. 145; 240 N.W.2d 475 (1976).
III.
Must defendants' convictions be reversed because the trial court instructed the jury that if it found defendants not guilty of the offenses charged then it may consider the lesser included offenses?
The trial court charged the jury that:
"If you should find after a careful consideration of all of the testimony that the Defendant is not guilty of the offense as charged in the information, then you may consider the question of their guilt or innocence of a lesser offense."
Since the instruction did not require the jury members to agree unanimously on the innocence of defendants as to the crimes charged prior to considering lesser included offenses, the instruction was nonreversible error. People v James, 51 Mich. App. 777; 216 N.W.2d 473 (1974), People v Walker, 58 Mich. App. 519; 228 N.W.2d 443 (1975), People v Freeman, 57 Mich. App. 90; 225 N.W.2d 171 (1974).
Also see People v Don Francisco Lopez, 65 Mich. App. 653; 237 N.W.2d 599 (1975), People v Bankston, 61 Mich. App. 275; 232 N.W.2d 381 (1975), People v Waldron, 64 Mich. App. 648; 236 N.W.2d 732 (1975), People v Szymarek, 57 Mich. App. 354; 225 N.W.2d 765 (1975), People v Ray, 43 Mich. App. 45; 204 N.W.2d 38 (1972). But see People v Harmon, 54 Mich. App. 393 ; 221 N.W.2d 176 (1974).
IV.
Whether defendant Provost's conviction for assault with intent to do great bodily harm less than murder is reversibly inconsistent because his guilt was predicated upon having aided and abetted defendant Ross who was found guilty of assault with intent to murder?
Since assault with intent to do great bodily harm less than murder is an included offense of assault with intent to murder, defendant Ross's conviction of assault with intent to murder implicitly amounted to a finding that he was equally guilty of assault with intent to do great bodily harm less than murder. Thus, the principal, Ross, was found to have the intent imputed to the aider and abettor, Provost. Moreover, there is a rational basis for the differing verdicts. Based upon the evidence, the jury could reasonably infer that the initial assault was a joint enterprise in which Provost aided and abetted Ross, but that the subsequent kicking by Ross was without Provost's concurrence. We find no error.
The remaining issue is so insubstantial as to merit no formal discussion.
Affirmed.