People v. Reece, Docket No. 1044

• Decision Date: 06 December 1967
• Docket Number: Docket No. 1044,No. 1,1
• Citation: 155 N.W.2d 870,9 Mich. App. 108
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herbert D. REECE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 870

155 N.W.2d 870

9 Mich.App. 108

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Herbert D. REECE, Defendant-Appellant.

Docket No. 1044.

Court of Appeals of Michigan, Division No. 1.

Dec. 6, 1967.

Rehearing Denied Jan. 15, 1968.

Released for Publication Feb. 9, 1968.

John F. Mayer, Mayer & Mayer, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., Lansing, William L. Cahalan, Pros.Atty., Wayne County, Samuel J. Torina, Chief Apellate Lawyer Wayne County, Thomas P. Smith, Asst. Pros.Atty. Wayne County, Detroit, for appellee.

Before FITZGERALD, P.J., and KAVANAGH and LEVIN, JJ.

FITZGERALD, Presiding Judge.

Defendant was charged with robbery armed,* pled not guilty, and at trial was represented by counsel.Evidence was adduced disclosing that defendant approached complainant in a dark park, seized him, and demanded money, which was given at knife point.The complainant was able to escape and summoned aid from the police, accompanying them to aid in the search.The defendant was apprehended in the immediate vicinity of the incident with the same denomination of coins as taken from complainant, and a knife in his pocket.Defense counsel attempted to show that defendant was not the one involved, that his knife was open in his pocket for self-protection and, in general, his client was not guilty.

After lengthy instructions from the judge on the elements of armed robbery and 4 lesser included offenses, which were given at the completion of argument and then again in response to a juror's question, the jury returned a verdict of guilty of armed robbery.

Defendant raises one unique argument on appeal.He contends the instructions individually were correct, but read as a whole were prejudicial.He argues that too much emphasis was placed on the instruction on the elements of armed robbery and not enough time devoted to the elements of the lesser included offenses.Further, he claims the fact that a juror had to ask for additional clarification on a point indicates the original instructions were confusing.

The statute, C.L.1948, § 768.29(Stat.Ann. 1954 Rev. § 28.1052), requires, 'The court shall instruct the jury as to the law applicable to the case.'The duty of the trial judge is further defined in People v. Murray(1888), 72 Mich. 10 at 16, 40 N.W. 29 at 32:

'Without any requests from counsel it is the duty of the circuit judge to see to it that the case goes to the jury in a clear and...