noting that the traditional lesser included offense test is appropriate where it is probative of legislative intent, but recognizing that the test is not appropriate for predicate-based offenses
How later courts described this case
- noting that the traditional lesser included offense test is appropriate where it is probative of legislative intent, but recognizing that the test is not appropriate for predicate-based offenses
- “The Double Jeopardy Clause permits successive punishment or prosecution of multiple offenses arising out of the same conduct only if each offense contains a unique element.”
- assault with intent to commit murder is a lesser included offense of felony murder only if the malice to establish felony murder is the intent to kill, not the intent to inflict great bodily harm or the intent representing a depraved heart
- "[H]ad these defendants originally been prosecuted for felony murder, they could not have been sentenced both for felony murder and armed robbery, or for felony murder and the lesser included offense of assault with intent to murder. If they had been, the remedy would have been to affirm the conviction of the higher charge and to vacate the lower conviction."
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by People v. Ream, 481 Mich. 223 (2008)
443 Mich. 693 , 506 N.W.2d 482 (1993), abrogated on other grounds, People v. Ream, 481 Mich. 223
The opinion
Boyle, J.
(concurring). I concur in parts i, ii(a), and v of Justice Brickley’s opinion and in parts ii(a) and ii(b) of Justice Riley’s opinion. I write separately to express my concern regarding the unsettling potential of an open-ended definition of proximate cause in which assaults may become murders years after the initial incident upon the factfinders’ determination that death was the "natural” result of the original act.
I agree that these cases do not present an appropriate vehicle to consider whether, and when, a higher burden of proof of causation should be imposed in cases of long delayed death. See, e.g., *735 People v Stevenson, 416 Mich 383, 393, n 4 ; 331 NW2d 143 (1982). Both defendants clearly intended exactly the result that occurred. The intent was to inflict a fatal wound that would have caused death, and eventually did, and "contributory negligence of the person harmed is not a defense to a criminal prosecution.” Perkins & Boyce, Criminal Law (3d ed), p 781, n 74.
Nevertheless, the astonishing advancements of medical science, both in prolonging life and in identifying contributing causes of death, may suggest that in another context the question of causation, in fact and in law, should be measured by a different calculus.
The complexity of the question counsels judicious use by the prosecutor of the charging discretion approved by the Court today.