*1 v. NETZEL. PEOPLE Of- Assаult — Instructions—Lesser Law —Felonious 1. Criminal fenses. de- the fact of in whieh assault for felonious prosecution In admitted, freely instruction being armed was fendant’s or not was either that defendant trial court thereby limiting consideration charged, the crime from in the absence not error crime guilty of a lesser might found defendant have which 1931). 328, 82, Pub. Acts (Act No. offense Reference to Stat- and Information —Erroneous 2. Indictment Surplusage. ute — worded Information, charging assault, felonious suffiсiently language informed defendant of the statute notwithstanding with against him it concluded statute, as such erroneous to another section 328, (Act 82, 84, Pub. surplusage No. mere reference was §§ 1931). Acts dissenting. Butzel, Chandler, Wiest, Oakland; (H. Russel), Holland from Apрeal No. Cal- (Docket Submitted June Re- 13, 1940. Decided November endar No. 41,167.) denied 7, 1941. Certiorari February denied hearing 2,1941. of the United States June Court Supreme Michi- Court of Supreme denied by Reconsideration June'12,1941. gan without of assault Netzel was convicted
Adolph murder, intending commit intending than the crime of harm less bodily to inflict great murder. Affirmed. & Johnson, appellant.
Johnson E. Edmund General, Read, Attorney Thomas L. Charles General, Attorney Assistant Shepherd, Nog- and Donald C. Attorney, Wilson, Prosecuting gle Harvey Lodge, Prosecut- Assistant and Luther ing- Attorneys, people. for the *2 (dissenting). con- Defendant was Butzel, weapon deadly in- a of assault with victed intending tending murder and without to commit great bodily than harm less murder. He inflict parts used business the owner of a auto сity Pontiac had a number of thefts and suffered yard. parts employee from and an set his He apprehend en- and were thus thieves, watch to gaged early January 21, 1939, stopped Hall when one and some friends William adjoining yard of the on a to leave one street party friend his home. As the was about alight alongside up drove his car from car, employee defendant’s dis- them, and gun played the same time asked what and at doing- responding, Hall or- were there. Without companions in the car dered his to crouch down away icy pavement police sped over toward the he employee Defendant and followed in station. his pursuit, prosecution’s claim hot and the witnesses fleеing shots were fired at their that three four and that one shot dented rear license automobile plate. testified in his own Defendant behalf ground, employee his that “he did two shots into the fired fire them on because he fired * * * very quickly pаrticular them out his of the car and unless he was a contortionist, window he couldn’t have
possibly reached around wind- particular shield there at that time and hit the li- tag.” cense police de-
When both arrived at the station, cars employee He were disarmed. had fendant and gun deputized permit was he to make arrests. nor although attorney, to de- chose Defendant, he himself. After his conviction fend engaged appeal. prosecute this counsеl to 355 v. argument the ac no merit There is knowing under which statute had no means cused being prosecuted the information because he was according § Pub. 82, No. Acts 328, Act was worded seq., Supp. §17115-82 (Comp. et 1931 Laws seq.), § but it concluded with Ann. et Stat. 28.277 The сon 84 of the same act. a reference to section cluding’ of the statute under to the section surplusage. charge Peo is mere based ple Murn, 124Mich. 271; Lane, (Stat. Comp. § 17261 Laws 1929, See, also, 28.987), Comp. § Laws Ann. language (Stat. 28.999). informa сlearly informed defendant tion against him. *3 charge jury. assigned the
Error is to the court’s requested instruction. The Defendant submitted Comp. 3 Laws statute, situation is covered 28.1052): (Stat. § 17322 Ann. duty judge all the to control “It shall be proceedings during trial, and to limit intro- argument of and the of counsel duction relevant and with a to the matters,
material view expeditious the truth effective ascertainment of regarding in- The court shall the matters involved. applicable jury to the case as to law struct and charge cоmment on evi- in his make such any testimony witnesses, of character dence, justice may require. opinion of the interest as in his any point on the court to instruct The of of failure ground setting aside verdict not be la%vshall for requested by jury instruction unless such the accused.” as follows: instruction now assailed The given you I have “Under proofs, produced, two there are as under possible guilty other, as one verdicts, guilty.” 356 295 objection is that lesser are included offenses chargеd (Hanna People,
within crime v. 19 .the People People 316; Mich. 170 Durham, 598; v. Mich. People v. Burk, 485; 238 Mich. Fish v. the State Michigan (C. A.), 659), [2d] 62 C. Fed. and that given erroneously pos- the instruction excluded the sibility guilty of a verdict of of an inferior crime. Comp. (Stat. Seсtion Laws 28.1055), provides: “Upon any consisting an indictment for offense, degrees, prescribed chapter, of different in this may the fense in the find the accused not of the of- degree charged in the indictment and person guilty any degree find suсh accused charged such offense, inferior to that in the indict- attempt or of ment, to commit such offense.” Ordinarily the failure to instruct they may find the defendant of inferior charged crimes included within the crime is not setting requested aside thе verdict unless charges People are submitted and refused. v. People Allie, 133; v. Mich. Collins, 216 People 541; v. Manchester, 235 Mich. 594; supra; People Burk, Jones, Mich. 430. How supra, pointed ever, v. Jones, Justice Fead improper out that “the rulе does not excuse instruc tions.” In the case the trial court did more us, before as in Case, the Jones charge upon fail
than *4 affirmatively included but offenses, excluded them jury’s from the improper consideration. This was (3 Comp. becausе the statute Laws 1929, 17325 28.1055]) [Stat. expressly authorized jury to find defendant of a lesser offense than degree charged. of assault protects by giving
The statute the accused jury leeway a him to convict of a lesser offense when they arе convinced that a crime has been committed, proofs although they that the doubt have some possibility major crime. "When out the make ex- returning offense is included of an a verdict com- the accused rather than exonеrate cluded, charge. major might pletely, him of the convict protection the statute was denied Defendant accords. not be discussed. of error need claims
Other not occur of merit will have a semblance Those that on a new trial. charge, reverse we should
For the erroneous grant newa judgment and should conviction, trial. Btttzel, with "Wiest, concurred
Chandler J. relying upon Mr. Justice Btttzel,
North, re- has written for Mich. 430, Jones, agree in result either I am unable versal. in the Case is the decision Jonеs or that reached question applicable instant case. The to the all judge’s the circuit is whether consideration under to lesser with failure charge against defendant in the offense included danger- having with an assault while made weapon, error. reversible ous was convicted Case In the Jones on the Court rape reversal there was this judge from considera- withheld trial that the e., offenses—i. lesser included tion assault rape and assault to commit intent with conflict- battery. there as to which facts, opinion testimony, our ing are outlined follows: Case Jones o’clock in in 1:30 people’s that about claim “The September four men complaining witness, accosted an automobile *5 dragged by her into the car, took her force to a room the room apartment
in an defendant was in hotel, while two of and, Lonis Shermataro them, and Nate criminally held Simmons, defendant her, assaulted did the her, as others afterwаrd. complaining claim that “Defendant’s wit- voluntarily
ness came to his room between 1:30 and 2 o’clock with Nate Simmons, defendant and being in Shermataro then the their room; other men during left for a few minutes and, absence, complainant defendant and consent.” cohabited with her full Obviously, if the act of intercourse was with the complaining (as “full witness’s consent” testified), rape the crime of was not committed. But “dragged if the four her men into the car,” which jury might have found to be the thе offense fact, battery of assault and and this was the was then committed, and there offense committed if thereafter complaining the course of conduct of the was witness voluntary. against her If, will the men however, anticipatiоn took the woman to the hotel room in raping her, then there committed an assault notwithstanding complaining with intent, when wit- ness left was later alone the room with Jones she (he testified) consented to sexual intercourse. conflicting testimony, clearly under the Hence, it was question fact for the Case as Jones any, to which of if offenses, the three was estab- beyond lished a reasonable doubt.
But in instant if case an assault was com- being mitted at the additional element of all, dangerous weapon freely at the time with a ad- mitted defendant who took the witness stand his own behalf. toAs this element of the offense charged in the instant case there was no issue for the pos- because the defеndant “I testified: was in *6 night on the or on session of these firearms They January my in car. 21st. were of pointing window. Mr. The rifle I was out the car possession of this had the automatic Lawrence pistol.” testimony given by defendant, Under the above any in hе law, if assault violation committed he dangerous weapon; it while with a committed instructing in court was not in error and the trial possible jury: one two verdicts, “there are guilty.” guilty charged, not the other, proofs a homicide case, in under “Where, by lying killing in to have committed is been shown willfully plan preconceived de and and wait, liberately to instruct it is not error life, respondent to take guilty jury guilty all, he is is if that, degree.” People the first of murder in Repke (syllabus), Mich. 459. justified in the court was evidence, “Under respondents
instructing
if the
were
that,
guilty
guilty
of murder in the first
were
at all,
(syllabus),
degree.” People
v. Fuhrmann
by promise
reward,
another,
induces
“One who
guilty homicide,
commit
is
in
and
to lie
wait
passing
degree,
in
first
in the
murder
properly
upon
guilt,
to
considera-
limited
is
(syllabus),
v. Nunn
offense.”
that
tion of
which particular or one one of offence charged error; for the оr instructing —is refusing instruct, under the named, circumstances rests upon legal principles presumptions it province court declare guidance of the jury.” Sparf & Hansen v. United States, 156 U. S. 103 (15 273). Ct. Sup. Btjtzel
I agree with Mr. Justice other al- leged errors arе without merit and not justify would reversal. The conviction and sentence are affirmed. Sharpe J., C.
Bushnell, McAllister, concurred with North, J. The late Justice took no part this decision. Potter *7 MOORE,
SWEENEY & INC., v. CHAPMAN. Jury 1. —Brokers. Question Fraud — In action to recover for services rendered connec- purchase tion with the estate, question of real misrepre- held, sentation properly jury. one of fact submitted to Duty Agent 2. —Forfeiture Brokers —Breach Commis- sions. Generally speaking, a broker right compen- forfeit his by misconduct, sation duty, breach of disregard, wilful in a respect, obligation imposed material of an upon him agency. law of Principal Agent Fiduciary 3. — Relations —Adverse Interest Agent —Disclosure. The law permit will not agent capacity to act in a dual which his interest duty, conflicts with full dis- closure of the principal. facts to his agent’s compensation, Forfeiture of 2 Restatement, Agency, see Duty to interest, Restatement, Agency, disclose adverse see 389-392.