*1 v. BELL PEOPLE Opinion of the Court Arguments. Law —Instructions—Prior 1. Criminal self-defense, pleads and charged murder Where accidental, killing instruction to asserts of its consideration which conditioned defendant’s deceased on between defendant altercations held, prejudicial in his life fear for of immediate sense encounters between defendant light previous nature pounds fact less and the weighed 100 deceased who harmless and knife were previous threats with a deceased’s danger which would apprehension of engendered no reasonable question. influence the conflict Instructions—Duty to Retreat. 2. Same — second-degree murder case judge to instruct Failure trial duty in his own retreat not under that defendant held, proper where self-defense resort to home before he could issue, such instruction was duty placed no to retreat was not respect to made no intimation with requested and instructions duty. of such a the existence
Dissenting P. Levin, Arguments — — — Prior Law Question 3. Self-Defense Criminal Trier of Fact. for exchanged arguments and altereations whether Question reasonably deceased were harmless between defendant [1, [6] [3] [7] [9] [8] 53 Am 2, 40 Am Jur 21 40 Am Jur 39 Am 40 Am Jur 4, Am 5] Jur, Trial 40 Am Jur Jur, References 2d, 2d, 2d, Homicide New 2d, Jur Homicide § Criminal Law Homieide § Trial 650. 2d, Homicide §§ for Points §§ 117, 120. 480. 480. §§ §§ 520. 519, 142. in Headnotes 520. Bell danger justifiably which influenced led conduct which confrontation question proper deceased was instruc- death tions. *2 í. Same —-Instructions—Review. Appeals approve improper not Court should instruction of of appraisal the issue "based on its of self-defense conflicting evidence as to whether altercations of reasonably were harmless or dan- of ger. 5. Same —Defenses—Self-Defense—Accident. asserting is not barred wound- Defendant from defense fatal ing having jury ivas in instructed self-defense wounding on that assertion that the defense unintentional, since such are claims inconsistent. Defenses—Inconsistency. fi. Same — Inconsistent be asserted in a criminal case. defenses 7. Same —Self-Defense—Prior Altercations —Relevance. Prior altercations between and deceased were relevant defendant by jury to determination whether or not ac- justified, tions under the circumstances were even it found if stabbing been had intentional. fatal Self-Defense,—Prior 8. Same — Altercations — Instructions. charged murder, pleads who Defendant self-defense "killing accidental, asserts that was entitled to instruc- judging tion that the reasonableness of defendant’s any reaction to deceased’s assault should consider threats or altercations between and deceased. defendant 9. Same —Instructions—Essential Issue —New Trial. judge’s is entitled to new trial where trial instructions Defendant on essential issue in murder case were mislead- of self-defense ing and erroneous. Appeal from Recorder’s Court Detroit, Daven- May port (Elvin L.), J. Submitted 1 Division (Docket 3,872.) 1968, at Detroit. No. Decided Oc- application tober 24, 1968. On consideration of for appeal, Appeals leave remanded to Court of May further consideration on 7,1969. 382Mich 751. second-degree mur- convicted Robert Bell was der, appeals. Affirmed. Defendant Attorney Kelley, A. General, Robert Franlc J. DerengosM, Cabalan, L. General, William Solicitor Ap- Attorney, Prosecuting pellate Lawyer, Prosecuting Torino, Chief Samuel J. Angelo Pentolino, Assistant people. Attorney, for the appeal. for defendant on Price, William L. by jury Defendant was convicted Burns, degree. § in the second CL 750.317 murder (Stat 28.549). appeals claiming Ann Rev He the trial court erred its instructions. prosecution witnesses for the Two testified they Clark, saw the Lendora backed against some kitchen cabinets and *3 standing a in front with knife of the deceased who weapon. of these witnesses had also had no One lunge the seen the defendant twice toward deceased on with the knife. The defendant testified his own prior the cited occasions behalf and had when a the the defendant with knife in threatened arguments. claimed Defendant that course killing, day another dis- the June pute the and the deceased attacked arose, allegedly fought in self- with a knife. Defendant fight and the Lendora Clark defense accidentally stabbed. appeal following-
Defendant claims on that the erroneously from the took the instruction prior effect of altercations on consideration the allegedly being- of mind as was defendant’s state by the deceased: attacked you and ill-will of the deceased “I that affrays nothing quarrels former and could have People v. Bell op the Coukt to do with defendant, whatever Bobert how- Bell, may hostile the deceased have been, ever the and quarrels affrays parties and have by his had, act, if the did not threaten day. peril to the defendant on that Now, rea- many people quarrelsome— is, son that are many people quarrelsome, they are but are assault- happened day? is, and test ive what danger that losing in is, test was he his life, day? justified slaying in Was he because what he believed, at that moment, was about to happen? by a Because defendant is not authorized, peril law, to infer on account of ill-will, differently contests. act on different occa- they angry quarrelsome, sions. Sometimes are and sometimes like and that’s lambs, the rea- son.”
The two eases cited
the defendant, Hurd v.
People (1872),
[Direct jumped up examination] “He from grabbed a chair, table with knife hand, and Mr. we knife, Clark struck at me with the my struggled, put and he went and I me, *4 around right right hand across his his, hand, held up. happened we were I locked don’t know what cutting, something Mr. between the I know, sorry hap- very I Clark was cut like and am it that, * * * pened op the Court grabbed [Cross-examination] [the knife] “I (in- my got with I arm, left and that’s when cut here dicating), put my up (demon- Iso hand like this strating), pushed him, and me and him was tussling there in the happened I know there, and don’t what happened. I know tussle. don’t what knew he was cut.”
The role of self-defense in this to case was show sup- aggressor that the defendant was not the and to ply justification engaging strug- or excuse for in a gle which resulted in accidental death. Defend- ant’s and that of his own brother demon- strate that the deceased’s threats with a knife were harmless and no reasonable danger which would influence the question. conflict in the de- ceased never touched the with a knife. appears On several occasions it that the deceased pulled protect out knife to himself from the de- approximate pound weight fendant who had an advantage.
Cross-examination of defendant: you say you “Q. Now, that Mr. Clark threatened right? with times, a knife is that right. “A. That’s “Q. Ever cut you with a knife ? “A. No. “Q. Not one time?
“A. Ain’t never cut me. pull pro- “Q. Did the deceased ever a knife out you? tect himself from pulled every “A. He that knife time me and him argument. had an I know had it. That’s how he right? you “Q. And he it, threatened is that something If I tried to do would him, “A. something do to me. you you, something “Q. He told if me, do what going you? to do with he was right.” That is “A. *5 v. Bell op Opinion the Court of defendant’s brother: Cross-examination you “Q. And testified did not point your right? is that brother, the knife at point I him it. No, ‘‘A. didn’t see you “Q. And testified that never threatened your right? is knife, brother with "A. No.
“Q. No, what? He threaten —I him
“A. didn’t didn’t see threaten him awith knife. right?
“Q. “A. him You saw is that it, sir. Yes, you “Q. And also testified that he had the knife protection, you isn’t that what said, defend against your
himself ? brother “A. he had it to defend himself. Yes, sir, imagine everybody grab would a knife to defend themselves. you your fight
"Q. Hid ever see an actual between brother and the Lendora Clark?
"A. No. fight
'“Q. Never saw them ?
“A. No.” supra, court’s instructions, conditioned prior hostility consideration of on defendant’s sense prejudi- immediate fear for his life. This was not light cial error regarding nature extent the defendant’s encounters regarding with the deceased and the claimed acci- Reading dental charge cause of death. as a fairly applicable whole, sets forth the law and the claims of and the defense. alleges by failing Defendant also the court erred affray to instruct the that since the occurred (it own residence was also the resi deceased) duty dence of the no he was under retreat before he could resort to self-defense. This 14 op the Court requested.
instruction was never Furthermore, element retreat was never an issue course of the and the trial, trial court’s instructions proposition* not did fendant was under a intimate the erroneous that de duty to retreat. Therefore, legally necessary desired and its *6 absence did not render the instructions erroneous misleading. (Stat § CL 1948, See 768.29 Ann 28.1052), (1955), v. Rev Guillett 1.
Affirmed. J., concurred with R. B. J. Dalton, Burns, (dissenting). majority Levin, P. J. The acknowl- edges principle that where one a accused of claiming crime of violence' defends self-defense “prior arguments [between the victim and the ac- cused] [by jury] can be considered in determin- ing says the state of mind of the accused.” But, majority, though even the defendant in this case interposed that defense and there was evidence judge purported such altercations and the charge thereon, the defendant not avail him- principle (1) by self because his own testi- mony killing “the must have been accidental” and, (2) besides, showed that the “de- ceased’s threats with a knife were harm- less and no reasonable danger question. which would influence the conflict the deceased never touched the ap- defendant with knife. On several occasions it pears pulled pro- that the out his knife to tect ap- himself from the defendant who “had an proximate pound weight advantage.”
* People McGrandy 187. v. Bell by Levin, Dissenting Opinion majority’s explanation for its decision is tan- correctly ruling tamount to a that there nowas need charge jury on self-defense because any evidence the defendant was not entitled to respectfully all at on that issue. dissent. 100-pound weight advantage a man with a Even might apprehensive become when he is assaulted required with a knife. He not as a is matter of law during from dismiss altercations mind pulled which his assailant also he a knife because previously had been “touched” the knife. “previous Whether the knife” threats with a were reasonably engendered apprehension harmless or danger justifiably which influenced the defend- ant’s conduct the fatal altercation was for proper to decide on instructions. This approve improper Court should not an instruction of the on the issue of self-defense based on its appraisal conflicting disputed evidence on that factual issue. *7 asserting
The defendant Bell was not barred from self-defense because he claimed that the “act of killing must have been accidental.” The defendant testified that the him deceased assaulted with a during struggle knife and that the the deceased suf- a fatal fered stab that the wound, stab wound was unintentionally accidentally.1 inflicted or duty It was defendant’s to use the least force necessary protect to himself the altercation. obliged He was not to abandon his claim that the unintentionally, fatal wound was inflicted it was not necessary for him to concede it was inflicted inten- tionally in order to assert self-defense. 1 The defendant’s counsel characterized the deceased’s death as “accidental,” but also asserted that the defendant acted self- theories, defense. Both defense death, self-defense and accidental
were in the judge’s charge jury. covered to the Devin, Dissenting Opinion by inconsistency no claim
There is between the justifiably i.e., self-defense, that the defendant acted protect claim and the that the fatal wound himself, unintentionally accidentally in inflicted or struggle. if it And, were, even there should interposition prevent of the defense. Inconsistent may in a defenses be asserted criminal case as ain one.2 civil right acquit
Furthermore, the had the if it his assertion that defendant even disbelieved unintentionally the fatal stab wound was inflicted accidentally, even if it found that he intended long to inflict the fatal as wound, as concluded actions under circumstances justified. question, ques- were On that the critical justified, tion of whether his were actions altercations were relevant. testimony prior
The showed numerous threats involving the and the de- and altercations fendant. There that a knife had been by party during a third taken from the deceased prior dispute, on more than that the deceased hand. The defend- one occasion had a knife his “pulled” a knife on 9 ant testified the deceased had during arguments them. occasions between charged judge length on self-defense. The at portion excepts to which the defendant reads as follows: charge you ill-will of the deceased and
*8 “I affrays nothing quarrels could have former respondent, how- Bell, to do Robert whatever and the been, have ever hostile the deceased affrays parties may quarrels had, have peril did not threaten acts, if the Devin, J., dissenting. [2] See People v. Keys (1968), [9] Mich 482, 497, footnote 6, per People v. Bell by Levin, Dissenting Opinion day. respondent Now,the reason for that on that people quarrelsome, many people are are is, — they quarrelsome, is, and assaultive, are the test but day? happened is, The test in justified what that was he day? danger in the moment, losing life, of Was slaying believed, what he at that because happen? a to Because defendant about peril law, infer on authorized, is not account prior differently People contests. act ill-will, they angry on different occasions. Sometimes are quarrelsome, and like sometimes lambs, that’s the reason.” principle that evidence of
On same threats disputes admissible on the issue is whether alleged accused’s to the deceased’s reaction assault justified,3 in this ease was the defendant entitled charge just the one a the converse of that was given. The was entitled to have the judging that in the reasonableness of his instructed should reaction at the time assault any past threats and altercations it finds to consider to have have been made or occurred. purpose permitting would be evi-
No served re- and altercations to be dence threats case, as in this evidence, was done ceived excluding jury’s from the considera- such evidence tion. People (1902), 23, 132 Mich Tillman v. Supreme
Michigan was error to in- held it Court had made threats the Court observed: the tendency p 501. also, Walters Gillespie, Michigan Criminal Law and Giacalone Brownell v. The the deceased was Hurd v. The 134, 136; (1923), explain threats (1928), 242 Mich against” People People the character and eonduet “We v. Stallworth “powerful (1872), the defendant think (1878), 38 Mich 676, 680, 16, of his assault 25 Mich was also 21; man (1961), 364 [the quoted should Procedure, deceased] 405, 732, 735, 736 proper dangerous approvingly have been v. 417, Mich Brownell.”) Ake to seek to show some as (2d ed), 418; having temper, who admitted; (Evidence People 535-537; People See, v. *9 14 Mich by Levin, J. Dissenting Opinion jury an altercation between struct the defend- complaining day preced- witness on ant and ing the assault could not be considered except credibility as it bore on the de- witnesses, (p claring 24):
“Previous the conduct and assaults, threats of the complaining competent witness, were for the determining to consider in the state of mind of the and the defendant spondent character his acts. The re- justified acting in view of the sur- rounding they appeared circumstances as to him at the time.” judge’s charge
The trial was erroneous and mis- leading an case4 and a new essential issue trial should be ordered.
498-501. Guilleti See v. Liggett (1967), 7. See, also, Keys, 714; People supra, pp v.