People v. Godsey

Smith, J.

(dissenting) Fred L. Godsey was convicted by a jury of manslaughter having been charged with the offense of second-degree murder. On December 1, 1971, defendant Was sentenced to a 5 to 15 year term in the state prison, pursuant to MCLA 750.321; MSA 28.553. A motion for a *322new trial was denied and defendant appeals. I would reverse and remand for a new trial.

William Duncan and defendant were next door neighbors. They were not friendly neighbors, there having been previous arguments over the Godsey dog, their children, and about throwing stones from one lawn to the other. Testimony was given that about a year previous to the altercation leading to the death of Mr. Duncan, defendant had pulled a switch-blade knife from his pocket and offered to fight the deceased.

On July 12, 1970, an altercation arose between deceased and defendant. While many facts were in dispute we recite only those facts which bear upon the disputed issues.

Shortly before 7 o’clock on the evening in question deceased was clearing his lawn of debris which had been left there the day before when defendant had a new driveway installed between their two houses. One version was that deceased was putting the debris in a trash can in his garage. Another version was that deceased was throwing the debris against defendant’s car and house.

In any event defendant, who had been inside his house, appeared on his front porch where he claims he was struck on the leg by a piece of cement. At this point defendant left his front porch and with a baseball bat in hand approached deceased. Defendant claims deceased was holding a large piece of cement in his hand. Defendant struck deceased on the shoulder and when deceased did not release the cement he struck the deceased on the head. The latter blow resulted in death four days later.

In his opening statement defendant informed the jury that the blow was delivered in self-de*323fense. The court charged the jury in the following manner:

"It must also appear that * * * there was no way open for him to retreat to a place of safety and his only safety lay in striking the alleged aggressor to repel the attack.”

and,

"Before a man can avail himself of this defense you, ladies and gentlemen of the jury, must be satisfied that he did all he could do to avoid the conflict.”

The jury requested additional instructions and the trial court responded:

"It must also appear from the circumstances that were apparent to him at the time that he was in imminent danger of loosing (sic) his life or suffering some grievous bodily injury and there was no way open for him to retreat to a place of safety, and his only safety lay in striking the aggressor to repel the attack.”

No objections were made by defendant to these instructions. Defendant now contends that the court should have instructed the jury that defendant was not obliged to retreat if assaulted in his own home.

In dealing with this issue I would follow the holding in People v Paxton, 47 Mich App 144; 209 NW2d 251 (1973), wherein the court held that a trial court erred in failing, sua sponte, to instruct the jury that a defendant had no duty to retreat within his own home, in order to establish the defense of self-defense to a charge of manslaughter.

I do not fail to note the case of People v Broom, 50 Mich App 337; 213 NW2d 247 (1973), wherein the majority held that there was no miscarriage of *324justice in the court’s instructions when read as a whole. The trial court in Broom instructed the jury:

" 'The other man was not a trespasser though; the deceased; he had been given permission to be there.’ ”

I agree with the dissenting opinion in Broom that People v McGrandy, 9 Mich App 187, 190; 156 NW2d 48, 49 (1967), establishes that:

" 'A man is not, however, obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house, or to prevent his forcible entry, even to the taking of life.’ ”

In McGrandy the altercation was between husband and wife

In most cases the failure to give an instruction, even an important instruction, will not be considered reversible error if such an instruction has not been requested. There are a few exceptions to this general rule. For example it is necessary to instruct on all elements of an offense. People v Miller, 35 Mich App 627; 192 NW2d 517 (1971), People v Crook, 28 Mich App 490; 184 NW2d 459 (1970). I find the situation in this case to be much akin to the situation where an element of an offense has been omitted from the instructions. In this case the defendant’s assertion of innocence rested solely on a claim of self-defense, and the trial court’s instructions effectively foreclosed the consideration of that defense. Judge Cardozo considered a similar case in People v Tomlins, 213 NY 240, 245-246; 107 NE 496, 498 (1914), saying:

"The charge that it was his duty to escape, if he could, was, therefore, equivalent to an instruction to the jury that the defendant had failed to justify the *325homicide on the ground of self-defense. It was thus a direction to find the defendant guilty, at least of some degree of crime. (People v Walker, 198 NY 329, 334; 91 NE 806 [1910].) The situation is the same in effect as if the issue of self-defense had not been submitted to the jury at all. It was submitted in form, but not in substance, for the submission was coupled with instructions that predetermined the answer. It is the defendant’s right to have the question of his guilt determined by the verdict of a jury rather than by the judgment of this court; and whatever our own opinion of his guilt may be, we cannot say, until it has been passed upon by a jury, that justice has been done.”

I note that the jury could have found from the evidence that the first assault on defendant was on his front porch as he was emerging from his home. In People v Lilly, 38 Mich 270, 276 (1878), the Court reversed a manslaughter conviction where defendant was defending himself in his yard and at his own front door. There the Court held:

"The jury should have been instructed in effect that if they were satisfied that Lilly being at his own house had reason to believe and did believe from Kreiger’s previous and present language, manner and actions, and what had already taken place, that it was necessary to inflict the wounds he did inflict upon Kreiger to save his own life or to protect himself from danger of great bodily harm, he was excused.” (Emphasis supplied)

I would find reversible error in the failure of the court to instruct on the no retreat element in the self-defense instruction as it applied to the disputed facts in the case before us.

Defendant contends that it was error to allow evidence to be produced for jury consideration of a prior altercation between defendant and deceased. I note that the altercation referred to was alleged to have occurred the previous spring. That would *326put it about nine months previous to the fatal altercation of July 12, 1970. The wife of the deceased testified that on a Sunday, the previous spring, defendant, in her presence, asked deceased to come out of his garage and fight him. At this occasion the witness claimed defendant took a switch-blade knife from his pocket and showed it to deceased. When deceased closed the garage door there were no further developments.

On the issue of who is the aggressor the law clearly makes it permissible to show the prior relations between the parties. In 3 Gillespie, Michigan Criminal Law and Procedure, (2d ed), § 1707, p 2069, it is stated:

"The previous relations of the defendant and the deceased may be shown at the trial, and it is not error to admit testimony of ill-feelings between the accused and his victim, extending back two years before his death, although the showing might be remote.”

A cautionary instruction will assist the jury in giving such evidence its proper perspective in relation to the circumstances. I find no error here.

Finally I find no error in the admission of testimony that defendant’s wife had attempted to influence the testimony of witness Rodney Kozyra. Defendant’s wife took Rodney to visit defendant while the latter was in jail. Rodney testified that on this occasion the defendant told him he would pay him if he testified for him at his trial. When defendant’s wife was asked whether she and defendant had offered to pay $35 for Rodney’s testimony she denied it. Mrs. Kozyra, Rodney’s mother, called in rebuttal of this testimony, stated that defendant’s wife had made such an offer in her presence.

Under these circumstances the testimony offered *327in rebuttal was not impeachment of a witness on a collateral matter. There was evidence of defendant’s direct involvement. It would appear that the cautionary instructions given by the court to the effect that this impeachment testimony only went to the credibility of the witness (defendant’s wife) was more favorable than defendant was entitled to.

I would reverse and remand for a new trial.