People v. Trilck

Per Curiam. Defendant was convicted by a jury of second-degree murder. Upon denial of a motion for a new trial, defendant appeals of right to this Court. MCLA § 750.317 (Stat Ann 1954 Eev § 28.549). Defendant entered a bar where the decedent was working. The record indicates that she refused to go home with the defendant at closing time. Thereupon he pulled a gun, shot her, and then shot himself. He recovered. She did not. The only issue presented to this Court on appeal is whether the trial court committed reversible error when it declined to give the defense-proffered instructions on causation and lesser-included offenses of second-degree murder. Defense counsel asserts that because there is a factual dispute between the doctors who testified as to the cause of death, the court should have given his suggested instructions. Defendant argues that since a jury might have found that the deceased died of blood clots in the lungs and not as a result of being shot, instructions on assault with intent to murder were in order. The trial judge refused defense counsel’s instructions on the ground that there was not sufficient evidence presented on causation. He noted that nothing on the record refuted the fact that the death resulted directly from the shooting. It is true, as defense counsel urges, that there was a conflict in the medical testimony as to whether the immediate cause of death was a pulmonary embolism *636 or lobar pneumonia, but there was no disagreement that the inducing cause was the previously inflicted gunshot wound. If a request is made to instruct on a lesser offense, the right to the instruction depends upon the evidence. “ ‘If evidence has been presented to support a conviction of the lesser offense, the requested instructions must be given; failure to do so would constitute error. People v. Jones (1935), 273 Mich 430.’” People v. Jessie Williams (1968), 14 Mich App 186, 189. “ ‘If, on the other hand, no evidence has been presented to support a conviction of the lesser offense, then the requested instruction should be refused.’ ” People v. Norman (1968), 14 Mich App 673, 674, citing People v. Stevens (1968), 9 Mich App 531, 534. A review of the record by this Court reveals that the trial judge correctly ruled that there was no evidence to support the requested charge. See People v. Stevens, supra. Affirmed.