Defendant was charged with felony murder (MCLA 750.316; MSA 28.548), * 1 the underlying felony being robbery. Mr. Smith defended himself and prior to the jury instructions the following exchange occurred:
"Mr. Smith: As far as the evidence, I feel they [the jury] could be charged with murder one or two or manslaughter.
"The Court: No, only murder one.
"Mr. Monash [Prosecutor]: Do you want any included offenses?
"The Court: Any homicide perpetrated with another *186 felony is murder one. It is not murder two or manslaughter.
"Mr. Smith: You said you won’t say manslaughter or second degree?
’’The Court: I will not charge them. It is either murder one or you are innocent. One or the other.”
The jury found defendant guilty as charged and he was sentenced to life imprisonment. On appeal, defendant argues that the court’s refusal to instruct the jury on the lesser offenses of second-degree murder and voluntary manslaughter constitutes reversible error.
This Court has split on the question raised here. People v Bufkin,
"[T]hat in a prosecution for felony murder, that is to say any homicide committed in the perpetration, or the attempt to perpetrate one of the statutorily specified offenses, the trial judge is obliged to instruct the jury that its verdict shall be guilty of murder in the first degree or not guilty.”
See
People v Graves,
"Recently, a panel of this Court held that henceforward 'in a prosecution for felony murder * * * the trial judge is obliged to instruct the jury that its verdict shall be guilty of murder in the first degree or not guilty.’
People v Bufkin,
We think Wimbush is not only the better rule but also more accurately reflects the state of the law in Michigan.
Bufkin
relies primarily on
People v Dupuis,
The correct rule — the one adopted in
Wimbush
and the one we will apply to the facts of this case
—it
set forth in
People v Carter,
"In a criminal case, if there is a request to charge as to a lesser included offense, but there is no evidence of such a lesser included offense, or the facts are such that the court or the jury would be obliged to conclude that the defendant was guilty of the offense charged or not guilty, no charge as to a lesser included offense need be given.
"But if the evidence is subject to different interpretations that would justify a finding of a lesser offense, a charge as to such lesser offense, especially if one is requested, should be given.” 2
*188 Thus, the question becomes: Do the facts of the instant case admit to an interpretation which would justify a jury returning a verdict of a lesser offense? If they do, then we must reverse.
The only eyewitness testimony was that of Joseph Pruitt. He testified that at approximately 12:30 a.m. on December 26, 1971, he and David Bowers were at Pruitt’s Detroit apartment when defendant telephoned and asked if he could come over to the apartment. (Defendant was a casual acquaintance of Pruitt’s.) Shortly thereafter defendant and his cousin, William Smith, Jr., arrived at the apartment asking for money. When the request was refused, defendant and his cousin tied up Pruitt and Bowers and took several items from the apartment and placed them in garbage bags. The four men then left the apartment, got into a car occupied by two others, and drove to defendant’s grandmother’s house. After leaving the stolen goods there, the group of six then drove back to Pruitt’s apartment. All of the men except the driver went back into the apartment and removed three television sets, but took them back when they discovered the car had been driven away.
Defendant and the four others then walked to a bus stop. Neither defendant nor anyone else in the group had any stolen goods in his possession. Pruitt told defendant’s cousin that he would not get on a bus. Defendant’s cousin consented, and when the bus arrived Pruitt waited until the others had boarded and then walked away. Pruitt testified that it was between 1:30 a.m. and 2 a.m. when he left the group. The police received a report of a shooting at approximately 2:45 a.m., which led them to the body of David Bowers. The body was found about a mile and a half from the bus stop.
*189
In order to convict a defendant of felony murder under MCLA 750.316; MSA 28.548, the prosecution must establish that the murder occurred in the perpetration or attempt to perpetrate one of the enumerated felonies. A robber is engaged in the perpetration of the crime "while he is endeavoring to escape and make away with the goods taken. And a homicide committed
immediately
after a robbery, apparently for the purpose of
preventing detection, ”
is felony murder. (Emphasis supplied.)
People v Podolski,
"must occur while the actor or one or more of his confederates is engaged in securing the plunder or in doing something immediately connected with the underlying crime
(Dolan v People,
Thus, if a murder is committed while attempting to escape from or prevent detection of the felony, it is felony murder, but only if it is committed as a part of a continuous transaction with, or is otherwise "immediately connected” with, the underlying felony.
Applying this concept of felony murder to the *190 facts of the present case, we think a jury could find that the homicide was not committed in the perpetration or attempt to perpetrate the robbery. First, a jury could find that the killing was not committed while attempting to escape. They could find that defendant had already successfully made his "getaway”. Defendant was not being pursued by the police. Nor were he and his accomplices being pursued by the victims. On the contrary, Pruitt and Bowers were forced to accompany the felons to the bus stop. Secondly, a jury could find that the homicide was not committed while attempting to prevent detection of the robbery. It would make little sense for defendant to kill one victim of the robbery in order to prevent its detection when the other victim, Pruitt, had already been set free and could inform the police of the crime. And, lastly, on the facts of this case it is a jury question whether or not the homicide was "immediately connected” with the underlying felony. The stolen goods were disposed of and the actual robbery completed an hour to an hour and a half before the killing. And the homicide occurred a couple of miles from the robbery scene.
The trial court erred in refusing to instruct the jury on the lesser offenses of second degree murder and voluntary manslaughter. 3 Since this error compels us to reverse defendant’s conviction, we do not reach defendant’s other assignments of error.
Reversed and remanded.
All concurred.
Notes
MCLA 750.316; MSA 28.548, provides in pertinent part:
"All murder * * * which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping, shall be murder of the first degree.” (Emphasis supplied.)
We note that as authority for the first sentence we quote from
People v Carter,
We note that while we think a jury could conclude that this homicide was not felony murder, we also think it could conclude the killing was felony murder. Consequently, we reject defendant’s argument that it was error to instruct the jury on felony murder.