Opinion
Docket No. 26322.
Decided August 8, 1977.
Appeal from Recorder's Court of Detroit, Elvin L. Davenport, J. Submitted March 3, 1977, at Detroit. (Docket No. 26322.) Decided August 8, 1977.
Wesley P. Moore was convicted of first-degree murder. Defendant appealed. Reversed and remanded for a new trial. The people's motion for a rehearing was granted. On rehearing, the conviction is affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Research, Training and Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.
Leonard Townsend, for defendant.
ON REHEARING
Defendant was convicted by a jury of first-degree murder in the perpetration of a felony, MCLA 750.316; MSA 28.548, and appeals. This Court initially reversed the conviction and remanded for a new trial. We granted rehearing by our order of May 26, 1977.
Defendant first contends that the trial court erred in its instructions pertaining to self-defense. A review of the record reveals that defendant's testimony established his state of mind regarding a claim of self-defense. He indicated that his fear of great bodily harm or death was the reason for shooting decedent in the leg and striking him in the head with a gun.
Defendant further stated that he and a person named Adams then escorted the decedent from defendant's residence, and that decedent was alive and mobile at that time. He testified that he remained outside with decedent and Adams for only about a half-minute, then returned to his residence leaving the decedent with Adams. Defendant indicated that he heard noises resembling gunshots and about 20 minutes later Adams returned stating that he (Adams) had shot decedent.
Counsel for defendant emphatically stated that the claim of self-defense was raised only as to what transpired within the house and not thereafter. Defendant's position was that he did not participate in the occurrence outside the house where, he maintained, the fatal wounds were inflicted.
Consequently, the instruction on self-defense, although erroneous on the aspect of retreat, was, if anything, beneficial to the defendant. This being so, we cannot say that the instruction was reversibly prejudicial. People v. Lenkevich, 394 Mich. 117; 229 N.W.2d 298 (1975). In the context of this case, self-defense was not a material point because it was not claimed as a defense to the actual killing of the decedent. Nor did the prosecution allege or attempt to show that defendant's initial assault upon decedent was a cause or even a substantial cause of decedent's death.
Those cases holding that an instruction that injects an issue into the case not supported by the evidence is reversible error are unavailing to defendant. In the decisions reversing on such ground, the issue injected was detrimental to defendant in giving the jury a basis, albeit imaginary, upon which they could find defendant guilty of the greater of the offenses charged. See, e.g., People v. Goodrode, 132 Mich. 542; 94 N.W. 14 (1903), Brownell v. People, 38 Mich. 732 (1878), People v. Matthews, 17 Mich. App. 48; 169 N.W.2d 138 (1969). Here, the erroneous charge would have provided a basis for defendant's acquittal, not a conviction for a greater offense.
Defendant's second contention, that the trial court erred in failing to instruct sua sponte on lesser included offenses of first-degree murder, is erroneous as the case was concluded prior to January 1, 1976. See People v. Henry, 395 Mich. 367; 236 N.W.2d 489 (1975), People v. Jenkins, 395 Mich. 440; 236 N.W.2d 503 (1975), People v. Thompson, 69 Mich. App. 465; 245 N.W.2d 93 (1976).
Conviction affirmed.