People v. RONALD P. JOHNSON
253 N.W.2d 721
Mich. Ct. App.
1977
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PEOPLE v RONALD P. JOHNSON

Docket No. 23326

74 MICH APP 234

March 28, 1977

74 Mich. App. 234

William F. Ager, Jr., J.

OPINION OF THE COURT

1. HOMICIDE—MURDER—FIRST DEGREE MURDER—PREMEDITATION—ELEMENTS OF CRIME.

Submission to the jury of a charge of first-degree murder was not error where the evidence, viewed as a whole, is sufficient for a jury to infer that the defendant had time for a second look or reflection, making it possible to find premeditation, an essential element of first-degree murder.

DISSENT BY T. M. BURNS, J.

2. HOMICIDE—MURDER—FIRST DEGREE MURDER—PREMEDITATION—DELIBERATION—PREJUDICE—CHANCE OF ACQUITTAL—LESSER OFFENSES.

Denial of a motion for a directed verdict of acquittal on a first-degree murder charge is reversible error where there is insufficient evidence of premeditation and deliberation, because a defendant may very well suffer the prejudice of a diminished chance of acquittal on a lesser offense.

Appeal from Washtenaw, William F. Ager, Jr., J. Submitted February 3, 1977, at Lansing. (Docket No. 23326.) Decided March 28, 1977.

Ronald P. Johnson was convicted of manslaughter. Defendant appeals. Affirmed.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, John J. Hensel, Senior Assistant Prosecuting Attorney, Chief of Appellate Division, and James S. Sexsmith, Assistant Prosecuting Attorney, for the people.

George Wahr Sallade, for defendant.

REFERENCES FOR POINTS IN HEADNOTES

[1] 40 Am Jur 2d, Homicide § 45.

[2] 40 Am Jur 2d, Homicide §§ 45, 541-543.

Before: D. C. RILEY, P. J., and T. M. BURNS and BEASLEY, JJ.

BEASLEY, J. Defendant was charged with first-degree murder; the jury returned a verdict of guilty to the lesser offense of manslaughter (MCLA 750.321; MSA 28.553). Defendant received a sentence of 5 to 15 years imprisonment and now appeals.

Defendant‘s principal issue on appeal is that the trial court erred in refusing to direct a verdict for defendant on the charge of first-degree murder; the alleged error is based upon an assertion that the evidence of premeditation and deliberation presented at trial was insufficient to support a jury finding of guilty of first-degree murder. Prejudice is claimed in that submission to the jury of the alleged unwarranted charge of first-degree murder could lessen the chance of acquittal on a lesser included offense. .

An examination of the record does not support defendant‘s assertions. One witness at trial testified that two series of shots were fired with a definite pause between the two series. The total number of shots was estimated to be eight to ten with four or five constituting the second series. A search of the apartment uncovered five empty rifle cartridges which had been fired from the weapon used by defendant. Examination of decedent revealed two bullet wounds in the front of the skull and one in the back, but no powder burns were present. Testimony was also offered that defendant had told a police officer that he continued to shoot at decedent until the rifle jammed. Viewed as a whole, this evidence is sufficient for a jury to infer that defendant had time for the “second look” or reflection; a finding of premeditation, an essential element of first-degree murder, would, therefore, be possible. , , .

The other issues raised by defendant are without merit.

Affirmed.

D. C. RILEY, P. J., concurred.

T. M. BURNS, J. (dissenting). I respectfully dissent. It is my judgment that there was insufficient evidence of premeditation and deliberation to justify submission of the first-degree murder charge to the jury. Denial of the motion for a directed verdict on the first-degree murder charge was reversible error as defendant may very well have suffered the prejudice of a diminished chance of acquittal on a lesser offense. See , .