Docket 10635 | Mich. Ct. App. | Apr 30, 1971
PEOPLE
v.
PIGUES
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.
Jack J. Kraizman, for defendant on appeal.
*350 Before: J.H. GILLIS, P.J., and FITZGERALD and T.M. BURNS, JJ.
Leave to appeal denied August 3, 1971. 385 Mich. 773.
PER CURIAM.
Defendant was convicted by a jury of murder in the first degree, MCLA § 750.316 (Stat Ann 1954 Rev § 28.548). He appeals as of right.
On the afternoon of September 27, 1969, defendant visited the home of friends. An argument ensued between defendant and Elmer Winfery which resulted in defendant being forced to leave the house. He returned a half hour later and met Winfery in the backyard. Defendant shot Winfery and as he fell to the ground, defendant continued shooting his victim. A total of seven shots entered decedent's body. At trial the defendant argued that he acted in self-defense.
The defendant's first claim of error is that there was insufficient evidence to support the jury's verdict.
It is not the function of an appellate court to act as a reviewing jury. People v. Eagger (1966), 4 Mich. App. 449" court="Mich. Ct. App." date_filed="1966-10-11" href="https://app.midpage.ai/document/people-v-eagger-1612878?utm_source=webapp" opinion_id="1612878">4 Mich. App. 449. Rather,
"[T]his Court's proper role is to examine the record on appeal to determine whether the jury's finding of fact is supported by credible evidence. Accordingly, this Court will not disturb the verdict unless the evidence fails to support the finding of fact." People v. Person (1969), 20 Mich. App. 246" court="Mich. Ct. App." date_filed="1969-11-26" href="https://app.midpage.ai/document/people-v-person-2016985?utm_source=webapp" opinion_id="2016985">20 Mich. App. 246, 248.
Our review of the record thus made, we find that there was sufficient evidence, if believed by the jury, to justify a finding of guilt beyond a reasonable doubt.
Defendant also alleges that the trial court's instruction on the lesser included offense of manslaughter was erroneous. The court instructed the jury:
*351 "In that connection one may not be provoked in a situation and let considerable time pass and then go and act on it. I mean it must be something that is immediate, that is confronted with a highly provoking situation, and he acts suddenly without opportunity to exercise his power of reasoning, his emotion overcomes it before he has cooled off or had a chance to cool off and in such a state he takes a human life, that is said to be manslaughter. It arises more out of emotions where there is no time to think and what you are looking at, what is confronting you is highly provoking."
Jury instructions must be read in their entirety. People v. Dye (1959), 356 Mich. 271" court="Mich." date_filed="1959-06-05" href="https://app.midpage.ai/document/people-v-dye-1610564?utm_source=webapp" opinion_id="1610564">356 Mich. 271, 279. The total charge fully and fairly informed the jury of the applicable law. People v. Iron (1970), 26 Mich. App. 235" court="Mich. Ct. App." date_filed="1970-08-26" href="https://app.midpage.ai/document/people-v-iron-2115744?utm_source=webapp" opinion_id="2115744">26 Mich. App. 235. Further, no objection having been raised by defendant, this Court will not now entertain an objection made for the first time, absent a showing of manifest injustice. We find no reversible error in the court's instruction.
Affirmed.