Opinion
Docket No. 46196.
Decided March 16, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and William T. Grimmer, Prosecuting Attorney, for the people.
Derrick A. Carter, Assistant State Appellate Defender, for defendant on appeal.
Before: D.F. WALSH, P.J., and R.B. BURNS and D.E. HOLBROOK, JR., JJ.
Defendant, Daniel Alexander, was charged with first-degree murder — felony, MCL 750.316; MSA 28.548, and breaking and entering with intent to commit larceny, MCL 750.110; MSA 28.305. He was convicted of both offenses.
Defendant first argues that his conviction of both first-degree murder — felony and breaking and entering violates the constitutional prohibition against placing him twice in jeopardy for the same offense. Const 1963, art 1, § 15. We agree.
Defendant was convicted under the following statutory provision:
"All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnaping, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life." MCL 750.316; MSA 28.548.
In analyzing the issue raised by defendant, we must first determine whether the Legislature intended cumulative conviction and punishment under both MCL 750.316; MSA 28.548 and the statute defining the appropriate enumerated felony, in this case MCL 750.110; MSA 28.305. It is only if we reach an affirmative answer to this inquiry that we must consider whether separate convictions and cumulative punishment violates the constitutional prohibition against multiple punishment for the "same offense". See Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374, 389-391; 280 N.W.2d 793 (1979).
In Simpson v United States, 435 U.S. 6; 98 S.Ct. 909; 55 L Ed 2d 70 (1978), the Court declared that it was imperative that the Legislature express clearly its intent to punish the offenses cumulatively as separate crimes. Citing previous decisions, the Court stated that "doubt will be resolved against turning a single transaction into multiple offenses". Simpson, supra, 15.
Similarly, in Bell v United States, 349 U.S. 81, 83-84; 75 S Ct 620; 99 L Ed 905 (1955), the Court stated:
"It is not to be denied that argumentative skill, as was shown at the Bar, could persuasively and not unreasonably reach either of the conflicting constructions. About only one aspect of the problem can one be dogmatic. When Congress has the will it has no difficulty in expressing it — when it has the will, that is, of defining what it desires to make the unit of prosecution and, more particularly, to make each stick in a faggot a single criminal unit. When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or antisocial conduct. It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. This in no wise implies that language used in criminal statutes should not be read with the saving grace of common sense with which other enactments not cast in technical language, are to be read. Nor does it assume that offenders against the law carefully read the penal code before they embark on crime. It merely means that if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses, when we have no more to go on than the present case furnishes."
In Wayne County Prosecutor v Recorder's Court Judge, supra, the Court found an expression of clear legislative intent in the felony-firearm statute to create a separate crime distinct from the felony or attempted felony and to impose cumulative punishment. The Court noted that the statute on its face outlined a specifically separate felony offense, whose two-year mandatory sentence was to be served "in addition to" and "consecutively" to and "preceding" the sentence for the underlying felony or attempted felony.
The first-degree murder statute lacks such explicit language. The Legislature, on the face of the statute, failed to express a clear intent to authorize multiple convictions and cumulative punishments both for the crime of murder and for the enumerated felony. Nor is there anything in the statute from which such an intent can be inferred. Absent such legislative intent, doubt must be resolved against converting a single transaction into multiple offenses. We conclude, therefore, that the defendant's convictions for both first-degree murder — felony and breaking and entering violated the constitutional prohibition against double jeopardy. See People v Peete, 102 Mich. App. 34; 301 N.W.2d 53 (1980). Defendant's conviction of the offense of breaking and entering is reversed and his sentence on that conviction is vacated.
We are aware of the conclusions reached by other panels of this Court on the question of legislative intent in the enactment of the statute relating to criminal sexual conduct in the first degree. MCL 750.520b; MSA 28.788(2). Insofar as those cases, People v Robideau, 94 Mich. App. 663; 289 N.W.2d 846 (1980), and People v Ferrell, 99 Mich. App. 609; 299 N.W.2d 366 (1980), are inconsistent with our conclusions here, we decline to follow those cases.
Defendant's second argument on appeal is that the trial court erred reversibly in admitting into evidence a photograph of the victim. The photograph complained of depicted the victim as he was found by the witness. The trial court ruled that the picture, although unpleasant, was far from gruesome and was not inflammatory. In People v Eddington, 387 Mich. 551, 562; 198 N.W.2d 297 (1972), the Supreme Court stated:
"In a criminal case, the burden is upon the people to prove every element of the crime charged. These are not nice pictures but they are not any more gruesome than some of the testimony by witnesses. The pictures showed the victims as they were found. The pictures depict the corpus delicti. The admission of such evidence is in the sound discretion of the trial judge."
We find no abuse of discretion in the admission of this exhibit.
The defendant's conviction of the offense of breaking and entering is reversed and his sentence on that conviction is vacated. Defendant's conviction of the offense of first-degree murder — felony is affirmed.