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People v. Asbury

Supreme Court of Michigan
Mar 2, 1932
257 Mich. 297 (Mich. 1932)


Docket No. 198, Calendar No. 35,900.

Submitted January 15, 1932.

Decided March 2, 1932.

Appeal from Otsego; Smith (Guy E.), J. Submitted January 15, 1932. (Docket No. 198, Calendar No. 35,900.) Decided March 2, 1932.

Harlan Asbury was convicted of second degree murder. Reversed, and new trial granted.

Prentiss H. Brown, for appellant.

Paul W. Voorhies, Attorney General, Joseph A. Gillis and Edward A. Bilitzke, Assistants Attorney General, and Elmer G. Smith, Prosecuting Attorney, for the people.

Defendant was convicted of murder in the second degree and has appealed. He, admitting the killing, adduced evidence tending to show that it was done in self-defense. On this issue the direct evidence is in sharp conflict, and there is conflict, too, in circumstantial evidence.

In submitting the issue to the jury, the trial judge instructed:

"Before a person can avail himself of the defense that he used a weapon in the defense of his life, he must satisfy the jury that defense was necessary to protect his own life, or to protect himself from such serious bodily harm as would give him reasonable apprehension that his life was in immediate danger."

This is reversible error. This unfortunate instruction was given as requested by the assistant attorney general and the prosecuting attorney appearing in this trial for the State. It was taken verbatim from People v. Piper, 112 Mich. 644, where the instruction was held more favorable to defendant than he was entitled to, for the reason, as stated in the syllabus, that the law of self-defense was not applicable to the case.

Under settled law of this State, the burden was upon the people to show such facts and circumstances as convinced the jury beyond a reasonable doubt that the killing was not done in self-defense. People v. Coughlin, 65 Mich. 704. The burden was not upon defendant to satisfy the jury that he killed in self-defense. People v. Cathey, 220 Mich. 628; People v. Lintz, 251 Mich. 367. And the error cannot be excused by other language of the charge, as there was further unfortunate omission of usual instruction on burden of proof. People v. Statkiewicz, 247 Mich. 260.

Reversed. New trial ordered. Defendant remanded to custody of sheriff.


Summaries of

People v. Asbury

Supreme Court of Michigan
Mar 2, 1932
257 Mich. 297 (Mich. 1932)
Case details for

People v. Asbury

Case Details

Full title:PEOPLE v. ASBURY

Court:Supreme Court of Michigan

Date published: Mar 2, 1932


257 Mich. 297 (Mich. 1932)
241 N.W. 144

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