People v. Pearce

Souris, J.

Appellant Pearce and a man named Gross were charged with murder. They were tried together and convicted by a jury of murder in the second degree. The proofs conclusively established that Gross wielded the death knife. On appeal, leave having been granted, Pearce claims that the trial judge’s jury charge erroneously imputed to him the defense of self-defense claimed only by his codefendant and that the trial judge refused his trial counsel’s request that the judge instruct the jury that if it found that defendant Gross acted in self-defense, it would have to find defendant Pearce not guilty.

The defendants became involved in an altercation with a group of men, patrons of a tavern. The proofs portray the altercation as one of words and menacing gestures abruptly climaxed when Gross plunged a knife into the neck of the deceased. The people’s theory, supported by their proofs, was that the 2 defendants had returned, armed, to renew an earlier affray and that the homicide was committed as part of a common felonious plan between them, thus making Pearce and Gross equally guilty of the killing. CL 1948, § 767.39 (Stat Ann 1954 Eev § 28.979). Appellant’s theory, supported by defendants’ proofs, was that there was no such common felonious plan between defendants and that, in any event, defendants were retreating when the victim advanced upon Gross with a club and forced Gross to stab him in self-defense. The conflicting theories, each supported by proof, entitled Pearce to the requested instruction. Instead, the jury was instructed on the *694self-defense issue in a manner which, seems to have required conviction of Pearce if the jury found that he (as well as Gross) did not act in self-defense. The court’s charge to the jury included the following :

“Now, as you know, ladies and gentlemen of the jury, it is the claim of the defendants in this case that they acted in self-defense when Jerry Spagnuolo met them there in the alley on the date in question.

“In justification of the offense here charged against them, the defendants have interposed a plea of self-defense, and under certain circumstances this is a good defense. To make the plea available it must appear that the defendants were without fault upon their part. If he — or they — when I say ‘he’ I mean ‘they’ — if they themselves were the aggressor in the conflict, they cannot invoke the doctrine of self-defense as an excuse for the killing, unless he was at that time in immediate danger of losing his own life or suffering some grievous bodily injury, and there was no retreat open for him and his only safety lay in striking the blow which caused the death of Jerry Spagnuolo. * * *

“The burden of proof of all such matters is upon the people to show that the defendant is guilty of the offense charged, and the people’s testimony must be such as to satisfy the jurors that the killing was not done in self-defense. The burden is not on the defendant who makes the claim of self-defense to satisfy the jury of the truth of his own claim. * * *

“You are further instructed that a killing is not justifiable on the ground of self-defense if the defendant, after a difficulty between the deceased and himself had terminated, or after he had an opportunity to decline combat, continued the struggle or renewed the affray, the result of which was the homicide; and that is the reason irrespective of who was at fault in the original encounter. The defendant fails to make out a case of self-defense where the evidence shows he renewed a difficulty after the deceased abandoned it.”

*695Nowhere in the charge was the jury instructed that only Gross was claiming self-defense but that, if established as to Gross, it would require Pearce’s acquittal. As given, the charge imputed to Pearce a defense he did not claim, — a defense unsupported by any proof. Attributing to Pearce an unclaimed defense which there was no possibility the jury could find in his favor, patently misstated his theory of the case. As to Pearce, the jury should have been instructed to acquit him if it found he was not engaged in a common felonious plan with Gross or if it found that Gross struck the fatal blow in his own self-defense. Cf. People v. Onesto, 203 Mich 490, 496.

Reversed and remanded for new trial.

Kelly, Black, Kavanagh, and Otis M. Smith, JJ., concurred with Souris, J.