PEOPLE
v.
ROBERT G. THOMPSON
Docket No. 26215.
Michigan Court of Appeals.
Decided February 22, 1978.*350 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Peter C. Jensen, Assistant Prosecuting Attorney, for the people.
Daniel J. Wright, Assistant State Appellate Defender, for defendant on appeal.
Before: M.F. CAVANAGH, P.J., and BRONSON and M.J. KELLY, JJ.
Decided February 22, 1978. Limited leave to appeal granted. 402 Mich. 938.
M.F. CAVANAGH, P.J.
For the reasons stated in People v Fountain, 71 Mich. App. 491; 248 NW2d 589 (1976), in People v Wright, 80 Mich. App. 172; 262 NW2d 917 (1977), and in Judge RILEY'S dissent in People v Till, 80 Mich. App. 16; 263 NW2d 586 (1977), we disagree with our brother's conclusion that reversible error did not result from the trial court's failure to instruct the jury on the element of malice in the felony-murder charge. We join, however, in his disposition of the other issues raised.
For this reason, we would reverse the first-degree murder conviction and remand to the trial court. Upon remand, as we find no error relating to the armed robbery conviction, we would allow the prosecutor to choose either to have the armed robbery conviction and sentence stand or to have it vacated and to retry the defendant on armed robbery and first-degree murder.
BRONSON, J., concurred.
M.J. KELLY, J. (dissenting).
On August 18, 1975, *351 defendant was convicted by a Saginaw County Circuit Court jury of armed robbery, MCLA 750.529; MSA 28.797, and first-degree murder, MCLA 750.316; MSA 28.548. He was sentenced to two concurrent terms of life imprisonment on September 17, 1975. He appeals as of right. Three issues merit discussion.
First of all, the parties agree that the conviction and sentence for armed robbery, the lesser charge, should be vacated. I would so order. This Court held in People v Anderson, 62 Mich. App. 475, 482; 233 NW2d 620 (1975):
"To punish defendant both for the greater offense, that is, first-degree (felony) murder, and for the included offense, which would be in this case armed robbery, would constitute double punishment in violation of the double jeopardy clauses of the United States Constitution and the Michigan Constitution."
Since the murder took place during the perpetration of the armed robbery, the armed robbery conviction must be reversed. See also People v Stewart (On Rehearing), 400 Mich. 540, 549-550; 256 NW2d 31 (1977), People v Martin, 398 Mich. 303, 309-310; 247 NW2d 303 (1976), People v Longuemire, 77 Mich. App. 17, 24; 257 NW2d 273 (1977), People v Goodchild, 68 Mich. App. 226, 236-237; 242 NW2d 465 (1976), lv den, 397 Mich. 830 (1976).
Defendant next argues that the trial court committed reversible error by failing to instruct the jury on the element of malice, and, in effect, letting the jury imply malice from the underlying armed robbery to the killing. Defendant did not object. I would hold that the failure to object precludes this Court from reviewing the issue because there is no manifest injustice. People v *352 Dorrikas, 354 Mich. 303, 316; 92 NW2d 305 (1958). I say that with full knowledge that there is abundant authority to the contrary. In People v Fountain, 71 Mich. App. 491; 248 NW2d 589 (1976), the Court implied that the issue need not be preserved for review by timely objection because it withdrew an essential element from jury consideration, namely, malice. There is now a split of authority in this Court as to the existence and the perimeters of the common law felony-murder doctrine in Michigan. Whatever the rule is determined to be by the Supreme Court in future precedent, I have little hesitation in saying what the rule ought to be. The rule ought to be that whether the instruction uses the word murder or killing in connection with the underlying felony, an omission to instruct on malice will not be reversible error unless properly preserved for review by objection or by the trial court's refusal to give a properly requested instruction.
The right to a trial by jury allows a defendant a common sense buffer between the complicated legalistic language of the law and the conscience of the community. Much of the debate between varying legalistic points of view is lost on a jury of laymen. Where legislatures and courts disagree, why do we posit reversible error on a surmise that a jury has been misled? It is possible for the layman to use murder and killing interchangeably even if incorrectly. It is conceivable that a Legislature could do likewise.
Our Court has recently issued conflicting opinions on this issue. People v Till, 80 Mich. App. 16; 263 NW2d 586 (1977), People v Wright, 80 Mich. App. 172; 262 NW2d 917 (1977). I would follow the Till Court in finding the existence of common law felony-murder in this state. The Till majority *353 found that such a common law felony-murder rule does not require the giving of an instruction on malice to the jury because malice is supplied (imputed) from a killing which takes place during the perpetration of or attempt to perpetrate one of the enumerated dangerous felonies. See People v Allensworth, 401 Mich. 67, 75; 257 NW2d 81 (1977) (COLEMAN, J., dissenting). But see People v Wright, supra, People v Fountain, supra, People v Terry Burton, 74 Mich. App. 215, 226; 253 NW2d 710 (1977). The Fountain Court defined malice in accordance with the Michigan Proposed Criminal Jury Instructions, 16:3:01.[1] But malice is a state of mind and does not a jury which convicts for killing which takes place in the course of arson, robbery, rape, burglary, or kidnapping find a "life endangering state of mind"[2] on the part of the felon inherently inseparable from the killing? The very least we can say is that the law is not clear as the split between panels on our Court indicates. That being the case, trial judges, prosecuting attorneys and defense attorneys should not be held to a degree of sagacity superior to ours, and reversible error should not be predicated on failure to give an unrequested instruction.
The third issue raised by defendant alleges that the trial court's Allen[3] charge constitutes reversible error. Defendant did not object to the charges given.
The trial judge's Allen charge does not necessarily *354 mandate reversal, and must be reviewed on a case by case basis. People v Sullivan, 392 Mich. 324, 332; 220 NW2d 441 (1974).
The record indicates that the trial court appeared willing to dismiss the jury, but defense counsel apparently wanted to have the jury continue deliberations. Furthermore, the jury deliberated for four hours after the Allen instruction before it returned a verdict of guilty. There was no objection and there does not appear to be a clear abuse of discretion by the trial court resulting in manifest injustice. I, therefore, find no reversible error in the charge. GCR 1963, 516.2. See People v Newby, 66 Mich. App. 400, 404; 239 NW2d 387 (1976), lv den, 397 Mich. 867 (1976), People v Tooks, 55 Mich. App. 537, 540; 223 NW2d 63 (1974).
Defendant's other issues are without merit and do not require discussion.
I would affirm.
NOTES
[1] "Malice means the defendant intended to kill or that he knowingly created a very high risk of death with knowledge that it probably would result in death, and that he did so under circumstances which did not justify, excuse, or lessen the crime."
[2] See Perkins on Criminal Law (2d ed), p 46 (1969), for such a definition of malice. See also People v Morrin, 31 Mich. App. 301, 322, n 28; 187 NW2d 434 (1971), lv den, 385 Mich. 775 (1971).
[3] Allen v United States, 164 U.S. 492; 17 S. Ct. 154; 41 L. Ed. 528 (1896).