Frоm a careful reading of the record and trial transcript in this criminal case the following pertinent facts are present. At approximately 9:30 in the evening of March 7, 1973, Mrs. Margaret Lyon was returning to her home in Marine City from her business in Algonac. As she ascended the stеps to her home, key in hand, she was apprehended by an individual bearing a gun who demanded entrance into her home. Having gained access to the home, this individual bound Mrs. Lyon hand and foot, and then embarked on a thorough search of the premises. This search lаsted approximately an hour and a half. Near the end of that time, Mrs. Lyon was able to work herself free from her bonds. Observing that the individual was in another room and out of visual contact with her, Mrs. Lyon made a dash for freedom. She ran out the door and to the neighbоrs’ house. She awoke her neighbors, Mr. and Mrs. Hallock, and upon entering their home telephoned the police. When the police did not respond immediately, she telephoned them again requesting aid. Immediately after the second tele *478 phone сall, Mrs. Lyon and the Hallocks heard someone shouting from just outside the Hallock home, "I know Margaret is in there, send her out, I know she’s in there.” Immediately after this, Mrs. Lyon and the Hallocks observed an individual, later identified by Mrs. Lyon as the same individual who had accosted her on her front steps, approaching the Hallock residence. This individual mounted the stairs to the Hallock residence, then, using his hand smashed through the glass on the only door that was closed and unfastened the lock from the inside. Mrs. Lyon and the Hallocks attempted to flee out another door. At this moment a police car containing two officers from the Marine City Police Department arrived on the scene. Mrs. Lyon was shot and wounded in the leg as she attempted to flee from the individual who had broken into the house and pursued her out the other door. Then one of the Marine City police officers was shot twice by that same individual as the police officer attempted to approach the Hallock home. Mr. Hallock was shot in the back and killed by the individual as he attempted to flee from the Hallock home. Meanwhile, the individual had tried to take Mrs. Hal-lock hostage, but she had somehow escaped. Finally, the second Marine City police officer was shot once in the head and once in the abdomen by this samе individual, who then escaped from the immediate scene in the Marine City Police Department vehicle that the two officers had arrived in.
These facts led to the apprehension of Arthur Lee Anderson, defendant-appellant, herein. Anderson was charged with first-degree murder, MCLA 750.316; MSA 28.548, armed robbery, MCLA 750.529; MSA 28.797, and three counts of assault with intent to commit murder, MCLA 750.83; MSA *479 28.278. On September 7, 1973, Anderson wrs found guilty of all five counts by a jury in Port Huron, Michigan. On October 4, 1973, Anderson was sentenced to 25 to 50 years imprisonment on the armed robbery charge, and life imprisonment on all four other charges.
Defendant’s sole defense at trial was one of alibi.
Defendant first claims that it was reversible error to allow amendment of the information so as to include language specifically alleging felony murder. Defendant essentially bases this claim upon two theories: (1) that premeditated murdеr and felony murder are distinct offenses with different elements; and, (2) that defendant’s conviction for felony murder is a nullity because that crime was not returned by the examining magistrate and therefore the circuit court had no jurisdiction to try it.
MCLA 767.76; MSA 28.1016, provides that the court may at аny time before, during or after the trial amend the information to cure any defect in either form or substance. The statute then goes on to provide that if the amendment is of substance, the accused shall on his motion be entitled to a discharge of the jury unless "it shall сlearly appear from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made or that his rights will be fully protected by proceeding with the trial”.
We hold that it clearly аppears from the whole proceedings that the defendant here has not been misled or prejudiced by the variance in respect to which the amendment was made. In this case the amendment to the information was made on the first day of trial beforе any proofs had been entered. The original information had charged de
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fendant with first-degree murder, citing the first-degree murder statute, MCLA 750.316; MSA 28.548. Within that statute, first-degree murder is defined as either deliberate and premeditated killing or that killing which shall.be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary. Further, MCLA 767.57; MSA 28.997, provides: "In pleading a statute or a right derived therefrom it is sufficient to refer to the statute by its title, or in any other manner which identifies the statute and the court must thereupon takе judicial notice thereof.” In
People v William Turner,
This case differs from Turner, supra, only in that the original information here included statutory wording of premeditation. This was not important in light of the fact that the statute was specifically cited. Moreover, there can be no claim of surprise оr prejudice by the defendant because the information, the arraignment, the preliminary examination and a pretrial order all pointed to one conclusion: the prosecution intended to proceed on a theory that the killing had taken place *481 during the perpetration of a burglary and/or the robbery of Mrs. Lyon.
The examining magistrate specifically found that the charge contained in Count 1 of the information had been committed and that there was probable cause to believe defendаnt had committed the crime. The charge in Count 1 of the information was first-degree murder, and reference was made to the statute as described above. Therefore, the circuit court had jurisdiction to try defendant on the charges contained in Count 1 of the infоrmation, that is, first-degree murder, as described in the statute.
Defendant next argues that although the jury found him guilty of armed robbery, there is a possibility that the first-degree murder conviction was based on a finding by the jury that the killing in question had taken place during a burglary. Defendant argues that such a finding would be invalid as he was never bound over on a charge of burglary. This argument must also fail, since we have just held that defendant was validly bound over on the charge of first-degree murder which, by reference to the statute, implicitly included a charge of felony murder; and a charge of felony murder explicitly encompasses a killing during the perpetration of a burglary. Therefore, whichever of the alternate grounds, that is, robbery or burglary, the murder conviction was based upon, it was a valid conviction since there wаs sufficient evidence of either theory upon which the jury could base the conviction. 1
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Defendant’s next contention is that he was placed in double jeopardy by being convicted of and sentenced for both first-degree murder during the perpetration of а robbery and for the underlying robbery. It is certainly not clear that defendant’s first-degree murder conviction was based upon his robbery conviction. Indeed, defendant has just argued the opposite. Nevertheless, defendant’s point is well taken. The offense of armed robbery is one of the possible underlying felonies leading to a first-degree murder conviction on a felony-murder theory. Since it cannot be said with certainty that the jury did not find defendant guilty of armed robbery and guilty of first-degree murder based on a killing which took place during the perpetration of that armed robbery, defendant’s conviction for armed robbery must be reversed. For if the jury’s first-degree murder conviction was based on a finding that the killing took place during the perpetration of the armed robbery, then the armed robbery constitutes a necessary element of first-degree (felony) murder. As a necessary element of first-degree murder, armed robbery would then become an included offense in the greater charge.
People v Simpson,
Defendant next argues that it was reversible error for the trial court to refuse to grant defendant’s motion for change of venue and for the trial court to refuse to admonish the jury in the specific way that defendant requested concerning publicity surrounding the trial. This case simply did not have the pervasive reception and impact on community feelings which defendant claims in his brief. It was quite widely publicized in the area for about a week, but the trial took place five months later and two-thirds of those jurors questioned in voir dire had never even heard of the case. The trial court automatically dismissed for cause any jurors from the actual community where the crime took place. The court warned the jurors on several ocсasions that they must try the case using the evidence that they obtained in the courtroom. It was clearly pointed out that newspaper articles and radio programs, etc., were not to be considered. Defendant’s reliance on
People v Moreland,
Motions for change of venue and other motions pertaining to pretrial and trial publicity are addressed to the sound discretion of the trial court; and there is no showing that the trial court abused its discretion in the present case.
People v Swift,
Defendant next argues that it was reversible error for the trial court to allow a prosecution witness to testify to an incident involving criminal activity by the defendant when that incident was a circumstance present in an admission made by the defendant to that witness. A prosеcution witness had testified that a few days after the crimes in question defendant had produced a gun while riding in the witness’s automobile and warned the witness to be careful because he, the defendant, had just shot four people in Marine City. Defendant objected to thе portion of the testimony which indicated that defendant had held a gun on the witness. While evidence of the gun does tend to prove another crime, it is also relevant evidence in the case at hand. Without the testimony of the gun being pulled, we would simply have testimony that defendant stated: "[D]on’t make any bad moves, old man. I shot four people up in Marine City.” This would be almost a nonsensical statement for defendant to make out of the blue, with no gun in his hand and nothing to back up his statement. Testimony regarding the gun therefore has an еssential bearing on the motivation and
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meaning behind the statement. Without it the jury might conclude that the defendant was only joking, or was not serious about, what he was saying. It therefore goes to the credibility of the defendant’s statement, and as in
People v Farrell,
We have examined defendant’s other allegations of error and fоund them to be without merit.
Reversed as to the armed robbery conviction, affirmed as to all other convictions.
Notes
MCLA 767.55; MSA 28.995 provides:
"In an indictment for an offense which is constituted of 1 or more of several acts, or which may be committed by 1 or more of several means, or with 1 or more of several intents, or which may produce 1 or more of several results, 2 or more of such acts, means, intents or results maybe charged in the alternative. ” (Emphasis supplied.)
US Const, Ams V and XIV, Const 1963, art 1, § 15. See also MCLA 768.33; MSA 28.1056.