PEOPLE
v.
HORN.
Docket No. 10293.
Michigan Court of Appeals.
Decided July 24, 1972.*757 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Michael R. Mueller, Assistant Prosecuting Attorney, for the people.
Kenneth A. Webb, for defendant on appeal.
Before: LEVIN, P.J., and R.B. BURNS and J.H. GILLIS, JJ.
Leave to appeal denied, 388 Mich. 793.
R.B. BURNS, J.
The defendant was convicted by a judge sitting without a jury of first-degree murder. MCLA 750.316; MSA 28.548.
The only argument of significance in this appeal concerns the defendant's assertion that since evidence on the element of "premeditation" was totally lacking, first-degree murder could not be proven. Premeditation can be inferred from the circumstances surrounding a killing. People v Wolf, 95 Mich. 625 (1893); People v Griner, 30 Mich. App. 612 (1971); People v Morrin, 31 Mich. App. 301 (1971). A review of the evidence discloses its sufficiency to support the first-degree murder conviction.
Joyce Montgomery observed the defendant beating the victim, Tingle, with a pipe across his back and buttocks as Tingle lay face down on the floor. Upon her request defendant surrendered the pipe. Joyce hid the pipe in the bathroom and when she returned she observed the defendant stabbing Tingle *758 with a screwdriver. She told defendant that there was no point in killing Tingle and requested that he surrender the screwdriver. He gave Joyce the screwdriver and she took it into the bedroom. When she returned from the bedroom defendant was striking Tingle with a chair.
Shirley Perryman testified that before Horn struck Tingle with the chair, Tingle escaped momentarily and ran to the door. Defendant caught him and brought him back into the apartment. He then struck Tingle with the chair. The chair broke from the force of the impact and defendant continued to beat Tingle with part of the chair. Tingle was moaning.
Joyce then observed defendant with a knife in his hand. She grabbed his wrist and he gave her the knife.
The defendant then dragged Tingle from the apartment and was gone five to ten minutes.
A short time later Fuzzell Perryman observed defendant in the furnace room and half a human body sticking out of the furnace. When the police arrived, they found human remains in the ashes.
The defendant was not so impassioned that he could not think of a method to kill the victim and dispose of his remains at the same time. Sufficient evidence exists to support the inference that the victim was still alive when he was shoved into a furnace. The attacks on the victim were made with a variety of weapons. On at least two separate occasions, the defendant was "cool" enough to politely hand over his weapons before continuing his attack.
It is not this Court's function to replace the trier of fact's opinion with its own. Where the factfinder's opinion stems from "reasonable" inferences, *759 then we must affirm. People v Moore, 306 Mich. 29 (1943); People v Mosden, 381 Mich. 506 (1969).
The evidence in this case is sufficient to render the inference of premeditation a reasonable one.
Affirmed.
J.H. GILLIS, J., concurred.
LEVIN, P.J. (dissenting).
I agree with my colleagues that the proofs of premeditation and deliberation need not be direct; these subjective factors may be established by inference from the evidence, direct and circumstantial. I also agree that our reviewing function is limited when the finding of guilt stems from a reasonable inference.
I dissent because in my opinion it is not reasonable to infer from the record evidence that the defendant, Frank Roosevelt Horn, coolly evaluated the choice that confronted him, and in a reflective state of mind decided to kill the victim, James Wesley Tingle.
I conclude that there was insufficient evidence of premeditation and deliberation. I would amend the judgment of conviction to reduce the degree of the offense of which the defendant was convicted from first-degree to second-degree murder, and remand for resentencing.
During the morning of the day preceding the killing, Horn began drinking alcoholic beverages. At 7 o'clock that evening, Tingle and three other men gathered at Horn's apartment and consumed a fifth of whiskey. The gathering was friendly. The men left at about 10 o'clock. Shortly thereafter, Horn, who was the manager of the apartment building in which he lived, received a complaint from another tenant about a man lying in front of her door. In response to this complaint, Horn dragged the man, who was the victim Tingle, from *760 the hall into his apartment. Tingle and Horn resumed their drinking.
Joyce Montgomery, who sometimes stayed overnight in Horn's apartment, observed Tingle and Horn sitting on the couch in the living room talking and drinking at 1:30 a.m. Some time between 1:30 a.m. and 3:30 a.m., Joyce was aroused from her sleep by her crying baby. She observed Horn beating Tingle across his back and buttocks with a pipe as Tingle lay face down on the floor. There was a gash in Tingle's head. Upon her request Horn surrendered the pipe. She told Horn that if he killed Tingle he would go to jail. Joyce hid the pipe in the bathroom and returned to observe Horn stabbing Tingle in his left side with a screw driver. She told Horn there was no point in killing Tingle and requested that he surrender the screw driver. He did so and she took it into the bedroom. When Joyce returned from the bedroom, she saw Horn striking Tingle with a chair.
Shirley Perryman, who lived in the apartment, testified that before Horn struck Tingle with the chair, Tingle escaped momentarily and ran to the door. Horn caught him and brought him back into the apartment. It was then that Horn struck him with the chair. The chair broke from the force of the impact. Horn proceeded to beat Tingle across the buttocks with a part of the chair and walked upon his back and thigh. Tingle was moaning.
Joyce then observed Horn poised with a little knife in his hand. She grabbed his wrists and he gave her that knife.
He then started to drag Tingle from the apartment and Joyce removed a larger knife protruding from Horn's pocket.
During the entire time that Horn was administering these various injuries, he kept repeating, *761 "You don't drag Shirley's name through the mud".
"You don't call my Shirley a tramp." "Nobody is going to talk about my Shirley." Shirley Perryman was Horn's girlfriend.
Horn was gone for five or ten minutes after he left the apartment. There is no evidence that an additional beating or wounds were inflicted after Horn dragged Tingle from the apartment.
Five hours later Fuzzell Perryman[1] observed Horn in the furnace room and half a human body sticking out of the furnace. When the police arrived they found evidence of human remains in the ashes. The time and cause of death could not be established.
I.
There is, of course, ample evidence to convict Horn of murder. Whether he intended to kill Tingle or not, the trier of fact was entirely justified, indeed almost obliged, to infer from the acts committed that Horn intended to kill Tingle. Proof of intent to kill, however, is not enough to establish the added element that distinguishes second-degree from first-degree murder. However brutal and unjustified the killing, it is not murder of the first degree unless the accused person premeditated and deliberated the murder:
"To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. As a number of courts have pointed out, premeditation and deliberation characterize a thought process undisturbed by hot blood. While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long *762 enough to afford a reasonable man time to subject the nature of his response to a `second look'." People v Morrin, 31 Mich. App. 301, 329-330 (1971).
Similarly, see Nye v People, 35 Mich. 16 (1876); People v Banks, 37 Mich. App. 280 (1971).
Horn's repetitious mutterings concerning Tingle's aspersions about Shirley, coupled with the fact that Horn had been drinking all the preceding day indicate an excited and beclouded state of mind.
Horn and Tingle had been talking together in a friendly manner only an hour or so before the affray. There is no evidence of any previous animosity between them.
Nor is there any evidence whatsoever that Tingle was as the majority say "still alive when he was shoved into a furnace". Fuzzell Perryman observed Horn in the furnace room and the half a human body sticking out of the furnace at 8:45 a.m., about five hours after Horn dragged Tingle from the apartment.
The last injuries appear to have been inflicted with the chair. Shirley Perryman testified that before Horn used the chair Tingle was able to run to the door of the apartment. There is no evidence that a further injury was inflicted after Tingle was removed from the apartment. It, therefore, appears that Tingle's death was the result of the injuries inflicted while he was lying on the floor after the chair fell apart at a time when Horn was still in an excited state of mind.
The evidence of Horn's efforts to dispose of the body is, of course, irrelevant in determining whether in a cool state of blood he deliberated and premeditated and decided to kill Tingle. Cf. Austin v United States, 127 App DC 180, 189-190; 382 *763 F2d 129, 138-139 (1967); People v Anderson, 70 Cal 2d 15, 24; 73 Cal Rptr 550, 555; 447 P2d 942, 947 (1968).
The weapons that were used were impromptu weapons. They were not acquired in a cool state of blood in preparation for homicide. See People v Morrin, supra, pp 331-332; Nye v People, supra, p 17; Austin v United States, supra, p 190.
The evidence shows only that Tingle died as a result of a vicious and frenzied beating. There is not a scintilla of evidence that would support a finding that Horn planned in a cool state of blood to kill Tingle. There is not a scintilla of evidence that, at some time before the fatal wound was inflicted, Horn, in a reflective state of mind, pondered the choice that confronted him and decided to kill Tingle. The testimony showing that Horn beat Tingle on the back and buttocks is consistent rather with the view that Horn intended to punish Tingle not to kill him. At any time during the beating Horn could have easily killed Tingle with the knife Joyce Montgomery removed from one of his pockets as he was dragging Tingle from the apartment. Even when Horn held the little knife in his hand it was poised over Tingle's buttocks and thighs, not aimed at a vital organ.
The trial judge's statement that, even if there is insufficient evidence of premeditation and deliberation, Horn is guilty of first-degree murder because the killing was committed during the course of a robbery or attempt to rob is manifestly a make-weight. The evidence relied on to support this alternative finding is the testimony that during the course of the beating Horn tore from Tingle's limp body a ring and a chain necklace with a key on it. I have examined these pathetic personal belongings which together would not bring 25¢ . After tearing them from Tingle's body in a fury, *764 Horn threw them behind a TV set where they were found by the police when they searched Horn's apartment many hours after Tingle's body was cremated. There is no basis for a finding that Horn killed Tingle in order to steal these articles.
II.
The other assignments of error are without merit. Although no one saw Tingle die and the ashes were not definitely proved to be those of Tingle, the corpus delicti was established by evidence and reasonable inferences drawn from such evidence.
There was probable cause to arrest Horn. Fuzzell Perryman informed the police that he had seen Horn in the furnace room and half a human body sticking out of the furnace. When the police arrived at Horn's apartment they made a proper entry and discovered blood in plain view. While there was no timely objection to the subsequent search, nor a motion to suppress, the failure to make a timely objection was not, on the facts of this case, a serious error requiring a new trial. See People v Degraffenreid, 19 Mich. App. 702, 715 (1969).
III.
As previously observed, the elements of first-degree murder are the elements of the common-law offense of murder with the added statutory element that either the killing was deliberated and premeditated upon or that it was committed in the perpetration of, or the attempt to perpetrate, certain felonies. In finding Horn guilty of first-degree murder, the judge necessarily found that he had committed the common-law offense of murder. *765 Although the judge was mistaken in concluding that the record permitted him to draw an inference of premeditation and deliberation, the record amply supports the implicit finding that Horn was guilty of common-law (second-degree) murder. Since Horn was convicted of the charged offense, the finding of guilt was not a compromise decision. See People v Morrin, supra, p 337.
I would remand for entry of a judgment convicting Horn of second-degree murder and for resentencing on that conviction.
NOTES
[1] Fuzzell Perryman is Shirley Perryman's brother and lived in the same apartment building. He returned from work after the beating.