Opinion
Docket No. 63530.
Decided August 5, 1983. Leave to appeal denied, 418 Mich. 956.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for the people.
George S. Buth, for defendant on appeal.
Defendant, Ronald Crawford, was convicted of two counts of assault with intent to commit murder, MCL 750.83; MSA 28.278, one count of carrying a concealed weapon, MCL 750.227; MSA 28.424, and one count of felony-firearm, MCL 750.227b; MSA 28.424(2). He was sentenced to two terms of life imprisonment on the assault convictions, three to five years on the carrying a concealed weapon conviction, and the mandatory consecutive two-year term on the felony-firearm conviction.
Defendant's convictions arose out of a shoot-out at the Grand Rapids Hall of Justice on January 9, 1981. Two police officers were shot by defendant as he tried to leave the courthouse when confronted by an officer attempting to execute an outstanding warrant for defendant's arrest.
Of the several issues raised by defendant on appeal, one merits discussion and requires reversal of his convictions of assault with intent to commit murder.
Over defense counsel's objection, the trial court instructed the jury that, to support convictions on the assault charges, they were to find that at the time of the assaults, defendant "intended to murder" the police officers. The court further instructed:
"Murder is the killing of one person by another with malice. Malice is a term with special meaning in the law. Malice means that the defendant intended to kill or that he consciously created a very high degree of risk of death with knowledge of the probable consequences of his act and that he did so under circumstances which did not justify, excuse or mitigate the crime."
Thus, the jury was authorized to convict defendant of assault with intent to commit murder upon finding either that he intended to kill the officers or that he intended consciously to create a very high degree of risk of death with knowledge of the probable consequences of his acts.
The Supreme Court has held, however, that actual intent to kill must be proven to support a conviction of assault with intent to commit murder. People v Scott, 6 Mich. 287 (1859); Maher v People, 10 Mich. 212 (1862); Roberts v People, 19 Mich. 401 (1870). See also People v Ochotski, 115 Mich. 601; 73 N.W. 889 (1898), and Wilson v People, 24 Mich. 410 (1872).
The instruction given in this case was taken from the standard jury instruction in effect at the time of defendant's trial. The instruction has since been amended to accord with Supreme Court authority. See II Michigan Criminal Jury Instructions, 17-23 to 17-26. CJI 17:2:01. Pending currently before the Supreme Court is a request for review in a case wherein the issue of the intent element of assault with intent to murder is raised. People v Ross, 410 Mich. 864 (1980).
Because the jury was not properly instructed on an essential element of assault with intent to commit murder and because defendant's intent was the sole disputed issue, we reverse defendant's assault convictions and remand for a new trial on the assault charges.
On the authority of People v Carter, 96 Mich. App. 694; 293 N.W.2d 681 (1980), lv den 410 Mich. 872 (1980), we vacate defendant's felony-firearm conviction. His conviction of carrying a concealed weapon is affirmed.
Affirmed in part; reversed in part and remanded to the circuit court for further proceedings consistent with this opinion.
The issue of nonproduction of alleged res gestae witnesses, raised by defendant in his motion to remand, shall be resolved in the lower court on remand.