People v. Lemmons, 9

• Decision Date: 22 September 1970
• Docket Number: No. 9,9
• Citation: 384 Mich. 1,178 N.W.2d 496
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Melvin LEMMONS, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 496

178 N.W.2d 496

384 Mich. 1

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Melvin LEMMONS, Defendant-Appellant.

No. 9.

Supreme Court of Michigan.

Sept. 22, 1970.

William, L. Cahalan, Pros. Atty., Luvenia D. Dockett, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Wilfred C. Rice, Detroit, for petitioner.

Before the Entire Bench.

DETHMERS, Justice.

Defendant was tried before a jury in recorder's court on a charge of robbery armed and convicted.

At trial the complaining witness identified defendant as one of two men who robbed him at gunpoint. The arresting police officers testified that at the time of his arrest defendant had in his possession a loaded .32 caliber pistol, a number of checks identified as those stolen in the robbery, and a driver's license belonging to the complaining witness. The defense was to the effect that defendant was not present when the robbery was committed.

The Court of Appeals affirmed the conviction and sentence of 5 to 25 years. On leave granted defendant appeals here, raising many claims of error. Chief among the assignments of error is that the court did not charge the jury as to included offenses of 'unarmed robbery', 'attempted robbery', and 'assault and battery'.

Defendant made no request at trial that the lesser included offenses be included in the charge.

The court instructed the jury that:

'There are only two possible verdicts as to each defendant. You may find the defendant, naming them individually, guilty of robbery armed or not guilty. There are no included offenses.'

In People v. Jones (1935), 273 Mich. 430, 263 N.W. 417, this Court referred to People v. Allie (1921), 216 Mich. 133, 184 N.W. 423, saying that in the latter case this Court had recognized the confusion existing in its previous decisions with respect to whether it constituted error to neglect to charge as to lesser included offenses in criminal cases, modified and, in effect, overruled some of them and established the rule that in the absence of a request to charge, the court does not err in failing to instruct upon the included offenses. In Jones this Court went on to say:

'However, the rule does not excuse improper instructions. Here the court did more than fail to charge upon the included offenses. It affirmatively excluded them from the consideration of the jury. This was error because, under 3 Comp.Laws 1929, § 17325, the jury was authorized to find the defendant guilty of a lesser offense * * *' (The...