People v. Busby, Docket No. 9622

• Decision Date: 21 June 1971
• Docket Number: Docket No. 9622,No. 1,1
• Citation: 191 N.W.2d 70,34 Mich.App. 235
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles DeWitt BUSBY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 70

191 N.W.2d 70

34 Mich.App. 235

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles DeWitt BUSBY, Defendant-Appellant.

Docket No. 9622.

Court of Appeals of Michigan, Division No. 1.

June 21, 1971.

Released for Publication Nov. 3, 1971.

Leave to Appeal Denied Feb. 15, 1972.

Charles E. Raymond, Wyandotte, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Gerard A. Poehlman, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and V. J. BRENNAN and DANHOF, JJ.

V. J. BRENNAN, Judge.

Defendant was convicted by a jury of breaking and entering with intent to commit larceny ¹ and sentenced to two years probation. The only disputed fact at the trial was whether or not the defendant was the man who committed the crime.

On appeal defendant raises who issues concerning the court's charge to the jury, neither of which requires reversal.

The trial court instructed the jury that 'there are only two possible verdicts, a verdict of not guilty or a verdict of guilty.' Subsequent to the instructions the following colloquy occurred:

'(The Court): Is there anything you want me to add?

'(Mr. Alter): If the Court please, perhaps I should have submitted a requested charge of included offenses.

'(The Court): There won't be any included offenses, but I'll talk to you later about that. Is there anything else?

'(Mr. Boak): The people are satisfied with the charge.

'(The Court): Members of the jury, if you will follow my clerk to the juryroom, you can begin your deliberations and later I will have the sheriff substituted for the clerk, so he can be in charge of you.

'(Whereupon the jury was taken to the juryroom at 3:50 p.m.).

'(The Court): If there are any additions or corrections to the charge, I will take them in chambers. There are no objections to the jury charge on the record.' (Emphasis supplied.)

Defendant now maintains that the court was under a duty to charge on attempted ² breaking and entering.

Preliminarily we note that the evidence presented at trial did not support a finding of guilt as to any lesser offenses. Thus, if we assume for the sake of argument that defense counsel's statement to the court was a sufficient request, it was properly refused on the ground that there was no basis for such a charge. See People v. Stevens (1968), 9 Mich.App. 531, 157 N.W.2d 495; People v. Sweet (1970), 25 Mich.App. 95, 181 N.W.2d 7. If, on the other hand, we assume that there was no request to charge, the court's charge to the jury that there were only two possible verdicts is not violative of the rule in People v. Lemmons (1970), 384 Mich. 1, 178 N.W.2d 496, because there was no affirmative Instruction to the jury excluding lesser offenses. The court's statement that there would not be any included offenses was not part of his charge and was directed to defense counsel, not to the jury. See People v. Members (1971), 34 Mich.App. 224, 191 N.W.2d 66, where we discuss more extensively the application of Lemmons. We find no error.

Defendant's second contention is that the court erred in instructing the jury on the weight to be given to the testimony of witnesses. Not only does this contention lack substantive merit, but any error that might have occurred was waived by defendant's failure to object. GCR 1963, 516.2; People v. Wright (1970), 23 Mich.App. 330, 178 N.W.2d 545.

For the foregoing reasons, defendant's conviction is affirmed.

Affirmed.

LESINSKI, Chief Judge (dissenting).

Inasmuch as it is my opinion that the instant case is controlled by People v. Lemmons (1970), 384 Mich. 1, 178 N.W.2d 496, I herewith respectfully dissent from the view of the majority. The facts of Lemmons and the case at bar are strikingly similar: both are armed robberies; in both an alibi defense is presented; in both, the jury was informed that it was not to consider lesser included offenses as possible verdicts. While in Lemmons the jury Was instructed that there were no lesser crimes, the jury in the present case learned that no lesser crimes were to be considered by an on-the-record discussion between Court and defense counsel. Whether the jury is instructed that possible verdicts do not include lesser offenses or whether the jury overhears a discussion along this line, the effect is exactly the same: the jury will not regard included crimes in rendering its verdict. The circumstances of this case amount to such an affirmative exclusion as to come within the interdiction of Lemmons. ¹

See, also, my dissent in People v. Membres (1971), 34 Mich.App. 224, 191 N.W.2d 66.

I would reverse and remand to the trial court.

1 M.C.L.A. § 750.110 (Stat.Ann.1971 Cum.Supp. § 28.305).

2 M.C.L.A. § 750.92 (Stat.Ann.1962 Rev. § 28.287).

1 A jury is charged to follow the law as enunciated by the court. People v. Gardner (1906), 143 Mich. 104, 116, 106 N.W. 541. I fail to distinguish how in...