People v. Morrin

Leslie Taylor Morrin was convicted of first-degree murder 1 by a jury in Monroe County Circuit Court. At the trial he testified that he killed the victim in self-defense. His evidence, coupled with the jury’s unquestioned right to reject the claim of self-defense, provided sufficient evidence to sustain a verdict finding that he committed the crime of second-degree murder by killing another human being with malice aforethought. 2

The statutory offense of which Morrin was convicted was, however, first-degree, not second-degree, murder. Although evidence that a homicide was committed with malice aforethought will support a conviction of second-degree murder, to convict an accused person of first-degree murder the people must additionally prove that the murder was committed with willfulness, deliberation, and premeditation. We hold that the evidence presented in this case is not sufficient to support a reasonable inference that Morrin killed his victim with the requisite deliberation and premeditation.

*307 There is, however, no need to order a new trial. The jury’s verdict, read in the light of the judge’s charge, constituted an express finding that the homicide was intentional and neither justifiable nor excusable nor committed under circumstances of mitigation, and hence that it was committed with malice aforethought. Since a conviction of second-degree murder is proper upon such a finding, we remand for entry of a judgment convicting Morrin of second-degree mnrder. Upon conviction of first-degree murder a life sentence is mandatory. A defendant convicted of second-degree murder may, but need not, be sentenced to a life term. Morrin shall, therefore, be resentenced.

I.

Morrin killed William Abell, a 53-year-old unmarried male. Abell died from some combination of eight blows to the head inflicted by Morrin with a large pair of tongs.

There were no witnesses to the killing or the events that preceded it. Morrin’s testimony is the only affirmative evidence concerning the circumstances of the killing.

Morrin was 37 years old at the time of the killing. He was a millwright by trade. On March 27, 1967, at approximately 8:30 a.m., he completed 17 hours of work in Oregon, Ohio. He testified that after eating breakfast he went to a union hall in nearby Toledo, Ohio, to talk to the union’s business agent. Finding that the agent was not there, he stopped at a nearby bar, where he periodically phoned the union hall to see if the business agent had returned. Morrin drank seven or eight glasses of beer before 1 p.m., when he learned the agent was gone for the day.

*308 While sitting in the bar, Morrin was approached by Abell, a complete stranger. Abell asked for a ride to Erie, Michigan, which was near Morrin’s home in Monroe, Michigan. After Morrin learned that the business agent was unavailable, he and Abell left together.

When they reached Erie, Abell asked to be taken to a specific location. Morrin agreed, and proceeded at Abell’s direction to traverse a number of quite remote, unpaved roads. Ultimately the car became mired in a mudhole. Abell alighted to push while Morrin attempted to extricate the vehicle by rocking the wheels. Their joint efforts succeeded, and the car was freed, whereupon Abell re-entered the car.

At this point, Morrin testified, Abell pulled out a knife. Grabbing Morrin by the hair, he held the knife to his throat. Morrin offered to let Abell have all the money in his possession. Abell said that Morrin would first have to commit an oral sexual act upon him.

With Abell still holding the knife at Morrin’s throat, they slid out of the car, whereupon Morrin was forced to assume a kneeling position, facing Abell. Abell directed Morrin to remove his (Abell’s) trousers, but when Morrin did not move Abell partially removed them himself. Abell then commanded Morrin to commit the sexual act. When Morrin still did not move, Abell grasped him by the back of the head to pull him forward.

Morrin testified that he then struck Abell in the testicles. Rising to his feet, Morrin started to flee before he saw Abell advancing on him with the knife. Morrin then grabbed a large pair of tongs from the back seat of the car. (The tongs apparently were one of the tools of his trade and he customarily took them on trips to and from work.) *309 A struggle then ensued and the two men exchanged blows. Finally, as Morrin swung the tongs, they entered Abell’s rectum. Abell fell forward slightly and Morrin struck him several more times with the tongs. When Abell fell to the ground, Morrin seized Abell’s knife and threw it away. (The knife was not found.) 3 Morrin then ran to his car and drove away. He drove straight home, stopping once at a gasoline station. He told the attendant that he had been in a scuffle.

Upon reaching home, he was in a distraught and hysterical state. His wife called his sister who immediately came over. Morrin said that he had hurt someone, perhaps killed him. He was crying and somewhat incoherent. He kept repeating the words, “if he hadn’t disgusted me so”. He took his sister out to the car to convince her that he was telling the truth. His sister washed the blood off the car and also washed the tongs which were in the hack seat.

Morrin and his sister drove hack to the place of the fight to see whether Abell was alive. The sister drove. It took them some time to find the exact place. Morrin alone got out of the car and found that Abell was, indeed, dead. They then returned home. It was agreed that they would do nothing immediately hut would take some action the next morning.

The sister then returned to her home and phoned an attorney who then phoned the police. The police picked up the sister who took them to Abell’s body. Morrin said that the next morning, without having *310 heard from his sister, he decided to turn himself in. He met the police on the way to his sister’s home.

This was substantially the evidence upon which the case went to the jury. The prosecution introduced numerous photographs of the deceased taken at the scene. Morrin produced two character witnesses. Throughout the trial, the prosecutor repeatedly emphasized the bizarre rectal wound suffered by Abell; he claimed that the wound was inflicted after Abell was already dead.

The jury was instructed on the elements of first-degree murder, second-degree murder, and manslaughter, as well as self-defense.

II.

Homicide, the killing of one human being by another, may be innocent or criminal. There are two categories of innocent homicide; they are called justifiable homicide and excusable homicide. Homicide is “justifiable” if it is authorized {e.g., self-defense) or commanded {e.g., execution of a death sentence) by law. Homicide is “excusable” if the death is the result of an accident and the actor was not criminally negligent. 4

A person who kills another is guilty of the crime of murder if the homicide is committed with malice aforethought. 5 Malice aforethought is the intention to kill, actual or implied, 6 under circumstances which do not constitute excuse or justification or mitigate *311 the degree of the offense to manslaughter. 7 The intent to kill may be implied where the actor actually intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm. 8 (The common-law felony-murder rule is an example of implied intent or implied malice aforethought.) 9

Thus, as “malice aforethought” is now defined, a killing may be murder even though the actor harbored no hatred or ill will against the victim 10 and *312 even though he “acted on the spur of the moment”. 11 Whatever may be the philological origin of the words “malice aforethought”, today “each word has a different significance in legal usage than in ordinary conversation”. 12

The nature of malice aforethought is the source of much of the confusion that attends the law of homicide. 13 The cause of this confusion has been the *313 evolution of malice aforethought from an independently significant element of murder to a “term of art” 14 whose significance is largely historical and procedural.

The precise roots of malice aforethought are uncertain. 15 Common-law courts spoke of “malice prepense” as early as the 13th century. 16 The requirement that malice aforethought he established in all murder prosecutions represented the common law’s recognition that a rational legal system will punish certain homicides (for example, those that are intentional) while excusing others (accidental homicides, for example).

From the beginning malice aforethought was defined principally in functional terms. We know *314 what it did; it both distinguished criminal from innocent homicide and murder from manslaughter. Yet what it was, the precise state of mind which it described, eluded symmetrical definition. 17

The common-law courts were faced with a difficult problem: malice aforethought was a requisite ele *315 ment of murder, but one so elusive that in many cases it resisted direct proof. Their solution was to create a presumption of malice. As early as the 16th century proof that the accused person killed the victim gave rise to a “presumption” that the act was done with malice aforethought. Once it was established that the accused killed the victim, the burden was upon the accused to prove circumstances of justification, excuse, or mitigation. 18

This rule, firmly rooted in English law, has taken hold in a great many American jurisdictions, 19 including Michigan :

“if the act of killing was proved, the presumption of law is that it was done with malice aforethought. *316 * * * The burden of disproving malice is in all cases of murder cast upon the prisoner.” 20 People v. Potter (1858), 5 Mich 1, 9.

The merits of the rule are that it relieves the prosecution from the necessity of proving the nonexistence of circumstances of excuse, justification, and mitigation — frequently an impossible burden — and instead allocates the burden of proving such circumstances to the defendant, who, arguably, has greater ability to do so than the prosecution.

“Ordinarily the government must prove beyond a reasonable doubt each element of the offense charged. But where the pertinent information is much more readily available to the defendant than to the government, the burden may be shifted to him, provided this can be done ‘without subjecting the accused to hardship or oppression’. Morrison v. California (1934), 291 US 82, 87-89 (54 S Ct 281, 284; 78 L Ed 664). This proviso is required to safeguard the presumption of innocence.” Communist Party of United States v. United States (1963), 118 App DC 61 (331 F2d 807, 814).

There is also, however, a grave drawback to this presumptive device. This defect arises in connection with jury instructions. To instruct a jury that malice is presumed from the fact of killing is to invite confusion concerning the ultimate burden of proof in the trial. The prosecution must always prove the defendant guilty beyond a reasonable doubt; a rule of law that shifts the burden of proof with respect to “malice” tends to cloud the dimensions of the prosecution’s ultimate burden.

*317 It was this danger which led the House of Lords in 1935 to repudiate instructions that charged jurors that they are to presume malice from the mere fact of killing. 21 Speaking of the presumption of innocence as a “golden thread” running through the common law, 22 the Court rejected a formulation that required the jurors to find a defendant guilty unless he discharged his burden of rebutting the presumption of malice.

The Court did not rule that malice must be proved by evidence independent of the killing itself. The fact of homicide still permits the jury to find malice aforethought. But it in no sense compels such a finding, even absent any evidence of excuse, justification or mitigation on the part of the defendant.

*318 “All that is meant is that if it is proved that the conscious act of the prisoner killed a man and nothing else appears in the case, there is evidence upon which the jury may, not must, find him guilty of murder.” Woolmington v. The Director of Public Prosecutions, [1935] AC 462, 480. 23

The Michigan Supreme Court recognized at an early date the importance of categorizing malice aforethought as a permissible inference rather than a presumption. In Maher v. People (1862), 10 Mich 212, 217, 218, the Court said:

“To give the homicide the legal character of murder, all the authorities agree that it must have been perpetrated with malice prepense or aforethought. This malice is just as essential an ingredient of the offense as the act which causes the death; without the concurrence of both, the crime can not exist; and, as every man is presumed innocent of the offense with which he is charged till he is proved to he guilty, this presumption must apply equally to both ingredients of the offense — -to the malice as well as to the killing. Hence, though the principle seems to have been sometimes overlooked, the burden of proof, as to each, rests equally upon the prosecution, though the one may admit and require more direct proof than the other; malice, in most cases, not being susceptible of direct proof, hut to he established by inferences more or less strong, to be drawn from the facts and circumstances connected with the killing, and which indicate the disposition or state of mind with which it was done. It is for the court to define the legal import of the term, malice aforethoug’ht, or, in other words, that state or disposition of mind which constitutes it; hut the question whether it existed or not, in the particular instance, would, upon principle, seem to be as clearly a question of fact for the jury, as any other fact *319 in the cause, and that they must give such weight to the various facts and circumstances accompanying the act, or in any way hearing upon the question, as in their judgment, they deserve: and that the court have no right to withdraw the question from the jury by assuming to draw the proper inferences from the whole, or any part of, the facts proved, as presumption of law. If courts could do this, juries might be required to find the fact of malice where they were satisfied from the whole evidence it did not exist.” (Emphasis by the Court.)

This firm admonition that the presumption of innocence applies to the element of malice as well as to the other elements of the offense and that malice aforethought is a permissible inference — not a mandatory presumption — arising from the fact of homicide is invaluable as an obstacle to one species of confusion in jury instructions.

There is, however, really no need to attempt to educate jurors about malice aforethought, a term which means one thing to laymen and something altogether different in the law. There is no need to tell a jury why the court thinks there is sufficient evidence to convict. From the fact that the judge is charging the jury rather than directing a verdict, it is apparent that the court is satisfied that there is sufficient evidence to justify reasonable men in finding the defendant guilty beyond a reasonable doubt.

“The arcane jargon of the law should not be recited in vacuo but, rather, the law pertinent to the case should be related in a meaningful manner to the evidentiary facts of the case.” Hill v. Harbor Steel & Supply Corporation (1965), 374 Mich 194, 208.

Consider that the term “malice aforethought” is supposed to signify both what murder is: the pres *320 ence of an essential element of tlie offense (intent to kill, actual or implied), and what it isn’t: the absence of certain defenses (excuse and justification) — but not other defenses 24 — and, as well, the absence of circumstances which would mitigate the seriousness of the offense reducing it to manslaughter. Add that the term “malice aforethought” does not mean malice as used in ordinary speech, 25 and forethought is not required, and it becomes clear that it is well-nigh impossible to communicate to jurors in the arcane jargon of malice aforethought the mental state required. No doubt many jurors are confused, and many, in error but understandably, make up their own working definition out of their own appreciation of what maliee aforethought “must” mean.

“The retention of ‘malice’ in the law of murder is a constant source of trouble and confusion. The word has long been a highly technical ‘word of art’ practically never used in its natural meaning and so ambiguous and indefinite that lawyers and judges themselves find difficulty in treading the mazes of its various meanings. It is no wonder that the average juryman is completely lost when he at *321 tempts, under the instructions ordinarily given, to make the distinction between malice in its ordinary sense and malice in law. Furthermore, there is no practical reason for the longer retention of the term. The various situations which constitute murder can be better enumerated in the statute in plain and unambiguous language and the present uncertainty removed.” Moreland, Law of Homicide, pp 205, 206. 26

The new penal codes, 27 in defining the crime of murder, eliminate the word “malice.” Although Michigan has not remolded its penal code along these lines, a restatement of the common law need not wait upon legislative action. Murder is a common-law crime: “Neither murder nor manslaughter is defined by our statutes, and the definition of murder remains the same as at common law”. 3 Gillespie, Michigan Criminal Law and Practice, § 1637, p 1969. If the language of the common law is mis *322 leading it should he clarified. It is the duty of the common-law courts to speak clearly in language that jurors can understand, not to persist in the lazy repetition of words which have lost all capacity to convey relevant thoughts and which are frequently misleading.

The problem of formulating suitable instructions on malice aforethought does not lend itself to ready solution. 28 Although the formulation of jury instructions is outside the scope of this opinion, defendants charged with murder will either deny that they killed the victim or direct their defense toward the proof of facts inconsistent with malice aforethought, claiming either that they did not intend to kill or, even if it is found that they did, that the homicide was justified, excusable, or committed under circumstances of mitigation.

In People v. Dunn (1925), 233 Mich 185, 197, the Supreme Court of Michigan observed:

“In practical application legal refinements of definition over which those learned in the law often differ are of scant aid to a jury.

“ ‘If the jurors are told what constitutes legal justification or excuse, and what circumstances will *323 reduce the killing to manslaughter, they have all the law they need to determine whether the particular homicide is murder or not, without the mention o± the word malice.’ 13 ECL p 773.”

Courts might well emphasize that juries can convict of murder only when they are convinced beyond a reasonable doubt that (1) the defendant intended (actually or impliedly) to kill and (2) circumstances of justification, excuse or mitigation do not exist. A judge could, for example, charge that the defendant is guilty of the crime of murder if the jurors find, beyond a reasonable doubt, that he killed the victim and that he actually intended to kill the victim or (where relevant), although he did not actually intend to kill, he actually intended to inflict great bodily harm or engaged in behavior the natural tendency of which is to cause death or great bodily harm, unless (where relevant) the jurors have a reasonable doubt whether (i) circumstances of mitigation are present, in which event the offense is reduced from murder to manslaughter, or (ii) the killing was accidental, or (iii) the defendant justifiably acted in self-defense.

We have addressed ourselves to this perplexing question in order to make clear the nature of the presumption of malice aforethought, to caution against misdirection of jurors regarding the “presumption”, and to show why in the instant case there was adequate evidence to sustain a conviction of common-law, i.e., second-degree, murder. The fact that Morrin killed his victim was not in dispute. From this fact, the jury was permitted to infer that the killing was committed with malice aforethought. Morrin’s testimony concerning self-defense sought to nourish a reasonable doubt in the minds of the jurors as to the existence of this inferential fact. The jury, nevertheless, chose to draw the requisite *324 inference and exercised its prerogative to disbelieve Morrin’s exculpatory testimony.

III.

First-degree murder is a statutory offense. It is tbe common-law offense of murder (homicide committed with “malice aforethought”) with an added element:

“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 or burglary, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.” MCLA § 750.316 (Stat Ann 1954 Rev § 28.548).

We turn to the question of whether the people proved that the murder of William Abell was committed with deliberation and premeditation. The connotative similarities between the words “aforethought” and “premeditation” have confused many courts; 29 malice aforethought and premeditation are *325 not, in legal terminology, synonymous. 30 Malice aforethought is a term of art firmly rooted in the common law. 31 Premeditation and deliberation are legislative offspring and are to be construed in the light of the statutory scheme.

At common law all murders were punishable by death. The severity of this rule led Pennsylvania to enact, in 1794, the first statute dividing murder into degrees. 32 The Pennsylvania statute defined first-degree murder as a killing committed willfully and with premeditation and deliberation and classified “all other kinds of murder” as second-degree murder. Only first-degree murder was punishable by death.

Michigan adopted the Pennsylvania statute verbatim by 1838. 33 At one time all but ten states had similar statutes. 34

As noted above, the division of murder into degrees was prompted by a feeling that not all murders reflected the same quantum of culpability on the part of the wrongdoer. Conviction of first-degree murder carries an automatic sentence of life imprisonment without possibility of parole, while second-degree murder is punishable by imprisonment for life or for any terms of years and the offender is parolable.

Decisions of the Michigan Supreme Court have, from the beginning, acknowledged that first-degree *326 murder is a “more atrocious” crime than its second-degree counterpart. 35 In 1876, the Michigan Supreme Court observed:

“It was rightly considered that what is done against life deliberately indicates a much more depraved character and purpose than what is done hastily or without contrivance.” Nye v. People (1876), 35 Mich 16, 19.

The clarity of the policy underlying the statutory division of murder into degrees contrasts sharply with the lack of precise standards for determining what constitutes premeditation and deliberation sufficient to establish first-degree murder. Since premeditation and deliberation are all that distinguish first-degree from second-degree murder, imprecise definition of these elements tends to erode the distinction between the two offenses.

A number of jurisdictions have all but obliterated this distinction by observing the rule that premeditation and deliberation need precede the homicidal act only momentarily. 36 (This is probably the result of the mistaken assumption that malice aforethought means with “premeditation” and the unthinking adoption of the cases which long before the statutory grading of murder into two degrees had held that premeditation was not required to establish malice aforethought.) 37 The rule prevalent in those jurisdictions grants the jury an unstructured discretion to find premeditation and deliberation in any murder case.

Michigan adheres to a more meaningful standard. 38 Nye v. People, supra, struck down a jury *327 instruction that a willful, deliberate design to take life “might be formed an instant before the act”. The Court ruled that “it is a perversion of terms to apply the term deliberate to any act which is done on a sudden impulse”. In Nye the homicide occurred in a sudden affray; the Supreme Court held that there was no testimony whatever upon which a verdict of murder in the first degree could properly have been rendered.

Aside from the language of Nye, the Michigan cases do not attempt to define premeditation and deliberation with any specificity. Lack of suitable definitions, however, has not prevented the Michigan Supreme Court from insisting upon strict observance of the premeditation-deliberation requirement. The Court has repeatedly reversed first-degree murder convictions in which the evidence did not support an inference of premeditation and deliberation. 39

*328 The real focus of first-degree murder jurisprudence in Michigan has been on the kind of evidence which permits an inference of premeditation and deliberation. To some extent this approach has minimized the need for functional definitions of premeditation and deliberation. Since the distinguishing elements of first-degree murder ultimately resolve themselves into questions of fact, minimum standards of proof, if reasonably related to the circumstances which must be proved, will serve to preserve the distinction between first-degree .and second-degree murder.

Our concern with maintaining the distinction between degrees of murder reflects a growing insistence by many courts that first-degree and second-degree murder be clearly differentiated. 40 Such differentiation furthers the statutory objectives, of course. Yet it serves a more fundamental purpose by insuring that murder prosecutions do not violate fundamental due process.

First-degree and second-degree murder are separate offenses, carrying vastly different penalties, distinguished only by the requirement that a homicide punishable as first-degree murder be committed with premeditation and deliberation. If premeditation and deliberation are ill-defined, the jury is *329 left with no objective standards upon which to base its verdict. Convictions of the two offenses will be distributed not on the basis of ascertainable criteria, but entirely as products of the subjective, wholly individualistic determinations of different juries.

The United States Supreme Court has frequently ruled that juries cannot be permitted to determine criminal liability without a reasonably ascertainable standard of guilt. 41 Absent such standards, the jury has the sort of naked and arbitrary power 42 which is inconsistent with due process.

Accordingly, it underscores the difference between the statutory degrees of murder to emphasize that premeditation and deliberation must be given independent meaning in a prosecution for first-degree murder. The ordinary meaning of the terms will suffice. To premeditate is to think about beforehand; 43 to deliberate is tq measure and evaluate the major facets of a choice or problem. 44 As a number of courts have pointed out, premeditation and deliberation characterize a thought process un *330 disturbed by hot blood. 45 While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a “second look”. 46

This interpretation of premeditation and deliberation in no way departs from existing Michigan law. Time and again the Michigan Supreme Court *331 has reversed convictions where the evidence of premeditation and deliberation was insufficient to warrant submission of a charge of first-degree murder to the jury. In each case, the homicide occurred during an affray whose nature would not permit cool and orderly reflection. 47

To decide whether Morrin’s conviction may stand in the case before us, we must determine if the prosecution met its burden of proving premeditation and deliberation. Since these are subjective factors, usually incapable of direct proof, they may be established by inference from all the facts of the case. 48 The question is whether the evidence introduced at the trial fairly supports an inference of premeditation and deliberation.

There is abundant case law on the kinds of evidence from which premeditation and deliberation may be inferred. 49 Having examined the law we conclude that here there was insufficient evidence to support the requisite inference. Here there was no prior relationship between the parties that would tend to show a motive. 50 The murder weapon was not acquired or positioned in preparation for homi *332 cide. 51 There is nothing in the record which would support an inference that Morrin transported Abell to the secluded location for an illicit or criminal purpose. The circumstances of the killing itself and the events preceding it were equivocal, as consistent with the absence as with the presence of premeditation and deliberation. 52 Morrin’s conduct subsequent to the assault, while it perhaps reflected consciousness of guilt, was neither coherent nor organized enough to suggest it occupied a place in a scheme or plan deliberated and premeditated upon before the homicide. 53

Morrin’s exculpatory testimony, although disbelieved by the jury, was not substantive evidence of facts inconsistent with his account. 54

*333 The bizarre rectal wound, which the prosecution contended had great evidentiary weight, likewise permits no inference of premeditation or deliberation before the homicide, 55 particularly if, as the prosecution argued, that injury was inflicted after Abell was already dead. The infliction of a brutal or revolting wound is hardly consistent with, let alone evidence of, rational deliberative processes. 56

There is language in some early cases which suggests that a killing with a deadly weapon gives rise to a presumption — or at least permits an inference — that the homicide was premeditated. 57 In each of these cases, however, there was ample additional evidence of premeditation.

Where the use of a deadly weapon has been held to evidence premeditation there were other circumstances showing motive or plan which would make reasonable the inference that the use of the deadly weapon was not a spur-of-the-moment decision, but rather that it was acquired or positioned with the thought beforehand of using it to kill the victim. 58 In the Michigan case of Nye v. People, supra, where *334 the homicide occurred in a sudden affray and the defendant killed the victim with a knife “which he had in his pocket and which was apparently one calculated to he used as a weapon”, the absence of any testimony whatsoever to show that the killing was not a sudden impulse prompted the Court to rule that there was insufficient evidence to support a verdict of first-degree murder.

Here there is no evidence that Morrin murdered William Abell with premeditation and deliberation. There is no evidence showing that Morrin acquired or positioned the tongs — an apparently impromptu weapon — with the thought beforehand to kill Abell or that he acted after a deliberate thought process. The record, and the reasonable inferences that might he drawn from it, fail to disclose any factual basis for finding premeditation and deliberation. The issue of first-degree murder should not have been submitted to the jury.

IY.

Morrin raises several other exceptions to the trial proceedings.

First, he contends that the prosecuting attorney should not have asked him on cross-examination whether he had told his sister that he had rammed *335 the tongs into Abell’s rectum after he was already dead. (Morrin denied making the alleged, statement.) He argues that since his sister did not so testify when she was examined that the prosecutor was seeking to place before the jury false innuendo. Although his sister did not testify at the trial that Morrin made such a statement, she did so testify at the preliminary examination. The question was, therefore, proper cross-examination, not impermissible innuendo.

Morrin also claims that the prosecutor misrepresented the content of certain testimony during his closing argument. Misrepresentation did take place, and we disapprove of the prosecutor’s overzealous efforts to emphasize the rectal wound. No objection or motion for a corrective instruction or mistrial was made by defense counsel, however, and therefore the issue is not preserved for review. 59

Morrin further claims that the trial judge erred when he permitted the jurors to read a portion of the transcript after they had been deliberating for seven hours. The permission was granted following a request by the jurors to see testimony of Dr. Valdez, who performed the autopsy, concerning the rectal wound. All relevant testimony of Dr. Valdez was read. The applicable rule is that “to read or permit to be read testimonial excerpts is an exercise of judicial discretion. It is reviewable * * * and reversible only if there was an abuse of discretion”. 60 We find no abuse here.

Morrin also objects to the admission into evidence of a photograph depicting Abell’s wounds. He contends it was inadmissible because the body had *336 been removed to the morgue before the picture was taken. The general rule is that photographs of the victim may be introduced into evidence if they accurately depict what they represent and are helpful in throwing light on a material issue. 61 The movement of the body did not in this case diminish the accuracy or materiality of the photograph which displayed only a portion of the body, not the place where the picture was taken. The photograph,' though not pleasant, was not gruesome.

Finally, Morrin objects to a ruling that one of his character witnesses was not qualified to testify concerning Morrin’s reputation in the community. The testimony of a character witness must be based upon what he has heard other people in the defendant’s residential or business community say about the defendant’s reputation. 62 The record discloses that the witness had no basis for his testimony concerning Morrin’s reputation. The ruling does not require reversal.

y.

Having determined that the trial judge erred only by submitting the issue of first-degree murder to the jury, we turn to the disposition of this case. The jury’s verdict was an unequivocal assertion of its finding that Morrin did in fact murder William Abell. Its mistaken belief that the record permitted an inference of premeditation and deliberation does not detract from the fact that there was credible evidence to support a finding of second-degree murder.

In other first-degree murder cases, where juries have returned guilty verdicts upon evidence suf *337 ficient only to prove the less aggravated second-degree crime, appellate courts have remanded for the entry of judgments of conviction of the lesser offense. 63 This is, of course, permissible only where the accused person is convicted of the charged offense and it is, therefore, apparent that the verdict is not the product of compromise. 64

We remand this cause to the trial court for entry of a judgment convicting Morrin of second-degree murder, and for resentencing on that conviction.