218 Mich. 141 | Mich. | 1922
Some persons who, near midnight, had returned from a dance, were chatting for a moment in front of the dwelling of one of them. They became suspicious of the appearance and. conduct of a man upon the porch of a vacant house across the street. One of them, Clifford Whittemore, having an automobile, went for a police officer, returned with him,
The undertaker and officers found no disarrangement of the clothing of the deceased. Later examination of the body by physicians disclosed discolorations about the head and throat and that death had been caused by strangulation. No other marks upon the body were found. She had not been ravished, nor did the genital organs indicate an attempt. She had never been violated. Several witnesses identified the defendant as the young man who had been about the city in her company that evening. When last seen together they were on the street between 10:80 and 11:00 o’clock. Defendant was taken into custody. He confessed the killing, but he told differing stories of the particulars thereof. Part of the confession was that prior to that evening he had not known the deceased; that after meeting and being about the city they went to the porch of the vacant house. He placed his coat
“All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree, and shall be punished by solitary confinement at hard labor in the State prison for life.”
The theory of the prosecution was not merely a deliberate and premeditated killing, but a killing in an attempt to perpetrate the crime of rape. The case was tried on that theory and the jury were instructed accordingly. We think the instructions submitting such theory were sufficient. But it is urged that there was no evidence of attempted rape and that it was
That defendant’s purpose in going to the vacant house, and in spreading his coat upon the porch was to have sexual intercourse. Probably he had reason to believe that the young woman, with whom he had no prior acquaintance, who accompanied him to such place, who lay with him on the coat, who kissed and embraced, had a like purpose. His earlier efforts failed. He tried again with the result that she arose or sat up and threatened to call for an officer. The significance of the threat and the conduct preceding it were for the jury.
Then he struck her. Might not the jury infer that the intent in striking was intercourse by force and against her will? The subsequent acts of defendant may have been in furtherance of such attempt, or perhaps to conceal what then had been done. But he was interrupted by the coming of the automobile. He left and returned to the scene of the crime. That there was no penetration or attempt to penetrate is unimportant. We think the jury might infer reasonably that the theory of the prosecution was correct in fact.
The confession and the other facts and circumstances were sufficient to establish the corpus delicti. 68 L. R. A. 33; L. R. A. 1916B, 747; 42 L. R. A. (N. S.) 524; 12 A. L. R. 846; 33 Cyc. p. 1430; People v. Toutant, 133 Mich. 520; People v. Harrington, 186 Mich. 482.
The charge on the subject was taken verbatim from People v. Mead, 50 Mich. 228—opinion by Justice Cooley — and includes the last two paragraphs there quoted.
Justice Cooley said that by such charge the right' to the benefit of good reputation was not denied, and the jury were told that if the evidence was convincing beyond a reasonable doubt it was their duty to convict notwithstanding the good reputation.
The author of a note, 10 A. L. R. 108, classes the Mead Case among “those by which the jury are directed to render verdict against the defendant notwithstanding his good character if upon a consideration of the whole evidence, including that element, they are satisfied beyond a reasonable doubt that he
While the language approved by Justice COOLEY in the Mead Case was not as fortunate as that used by him in People v. Garbutt, 17 Mich. 9 (97 Am. Dec. 162), we think the Mead Case should not be classed with those cases in which the jury were told that defendant’s good character was of no avail to him, if the evidence, apart from that element, satisfied the jury beyond a reasonable doubt of his guilt, nor with those cases where the jury were told that good character was an element to be considered only in doubtful cases, in which classes fall the cases cited by counsel. And the instructions quoted in the Mead Case were held in People v. Parker, supra, to be “of similar character” to those in the Garbutt Case, relied upon by counsel for defendant.
In the case at bar the trial judge gave the two important paragraphs of the Mead Case, not one, or one with modifications as was done in some other cases. We do not commend the charge in the Mead Case, but we decline now, as we did then, to say that it is reversible error. For criticism of the Mead Case see 10 A. L. R. 59.
Writers in some instances have treated good character with much rhetorical flourish. An instruction employing such language might be criticized as giving undue emphasis to the subject. For a request which was approved by this court see Campbell v. People, 34 Mich. 351, and see People v. Garbutt, supra; People v. McAaron, 121 Mich. 1; People v. Covelesky, 217 Mich. 90; and for review of Michigan cases upon this subject see 10 A. L. R. 58.
Judgment affirmed.
the question of proof of corpus delicti in homicide, see note in 68 L. R. A. 35.