adopting as opinion of court the dissenting opinion of Judge LevinSummary of this case from Berry v. Mintzes
No. 3 November Term 1973, Docket No. 54,341.
Decided November 21, 1973.
Appeal from Court of Appeals, Division 1, Levin, P.J., and R.B. Burns and J.H. Gillis, JJ., affirming Recorder's Court of Detroit, Don Binkowski, J. Submitted November 6, 1973. (No. 3 November Term 1973, Docket No. 54,341.) Decided November 21, 1973.
39 Mich. App. 483 reversed.
Jerome Wesley Allen was convicted of first-degree murder. Defendant appealed to the Court of Appeals. Affirmed. Defendant appeals. Reversed, conviction modified to second-degree murder and remanded for resentencing on second-degree murder.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Thomas M. Khalil, Assistant Prosecuting Attorney, for the people.
State Appellate Defender Office (by Dennis H. Benson and Marshall Redman), for defendant on appeal.
The question presented by this appeal is whether the corpus delicti of felony murder MCLA 750.316; MSA 28.548 may be established without evidence independent of the accused person's confession of the essential element that distinguishes the offense of first-degree murder from second-degree murder.
For the reasons set forth in the dissenting opinion of Judge (now Justice) LEVIN in the Court of Appeals, 39 Mich. App. 483, 494; 197 N.W.2d 874 (1972), we hold it may not.
We adopt the opinion of Justice LEVIN as the opinion of this Court.
Reversed, the judgment of conviction is modified to reduce the offense of which the defendant stands convicted to murder in the second degree and the defendant is remanded for resentencing on second-degree murder.
T.M. KAVANAGH, C.J., and T.E. BRENNAN, T.G. KAVANAGH, SWAINSON, WILLIAMS, and M.S. COLEMAN, JJ., concurred.
LEVIN, J., did not sit in this case.