Opinion
Docket No. 13881.
Decided February 26, 1973. Leave to appeal granted, 390 Mich ___.
Appeal from Recorder's Court of Detroit, Samuel H. Olsen, J. Submitted Division 1 January 11, 1973, at Detroit. (Docket No. 13881.) Decided February 26, 1973. Leave to appeal granted, 390 Mich ___.
Ora T. Jones was convicted of second-degree murder. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Leonard Meyers, Assistant Prosecuting Attorney, for the people.
George Schudlich, for defendant on appeal.
This case has been before us on another occasion. The defendant's conviction for first degree murder was reversed and he was granted a new trial. People v. Jones, 32 Mich. App. 309 (1971). Mr. Jones was retried and convicted of murder in the second degree. Motions in the trial court for a new trial and judgment notwithstanding the verdict were denied. The defendant appeals by right.
The facts of the case are simple and are detailed in the prior opinion.
Defendant first cites as error the trial court's refusal to instruct on the lesser included offense of reckless use of firearms. Reckless use of firearms, MCLA 752.861; MSA 28.436(21), is not a lesser included offense of second degree murder. This Court in People v. Simpson, 5 Mich. App. 479, 486 (1966), properly stated the rule on lesser included offenses to be as follows:
"`If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater.'" See 4 Wharton's Criminal Law and Procedure, § 1888, pp 753-754.
Murder may be accomplished by means other than the use of a firearm. See the statute regarding first-degree murder, MCLA 750.316; MSA 28.548, and that governing second-degree murder, MCLA 750.317; MSA 28.549. Murder in either of the two statutes cited may obviously be perpetrated by means other than a firearm. Use of a firearm is the sine qua non of the lesser crime, and since this element is not necessary to prove the greater crime, it is not an included offense. The trial court properly refused to give the requested instruction.
Defendant also claims the court erred in refusing to give an instruction that intoxication was a defense to the crime charged. No request for the instruction was made and the court is not required to instruct in this matter sua sponte. People v. Nawrocki, 376 Mich. 252 (1965); GCR 1963, 516.2.
The more serious claim of error is made in the instruction of the court that "specific intent to kill" was a requisite finding for the jury in this case. This is not the law in Michigan. Roberts v. People, 19 Mich. 401, 415 (1870); Wellar v. People, 30 Mich. 16, 18 (1874). See, also, People v. Acosta, 16 Mich. App. 249 (1969). In this case the use of the words "specific intent" by the trial court was error. However, the error favored the defendant. He was not entitled to a charge which, in fact, increased the burden of the prosecutor. We find that the error complained of was harmless. MCLA 769.26; MSA 28.1096.
Finally, the defendant now objects to the conduct of the prosecutor during his closing argument. The prosecutor suggested that the accused "intentionally killed her". Here the prosecutor was arguing a reasonable inference from the testimony given rather than stating a personal belief in the defendant's guilt. Once again, no objection was registered with the court. Indeed, counsel pronounced himself satisfied with the fairness of the court and the prosecutor on two occasions. GCR 1963, 516.2. Additionally, the trial court instructed the jury that comments made by counsel during the course of argument were not evidence.
We find sufficient evidence contained in the record to support the jury's verdict.
Affirmed.