People v. Ross
| Decision Date | 03 February 1977 |
| Docket Number | Docket No. 25961 |
| Citation | 73 Mich.App. 588,252 N.W.2d 526 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herbert ROSS, Jr., Defendant-Appellant. 73 Mich.App. 588, 252 N.W.2d 526 |
| Court | Court of Appeal of Michigan — District of US |
[73 MICHAPP 590] Robert E. Berg, Jr., Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward R. Wilson, Appellate Chief, Detroit, M. McKinley Tounsel, Asst. Pros. Atty., for plaintiff-appellee.
Before WALSH, P. J., and R. B. BURNS and BIVENS, * JJ.
Defendant was charged in a two count information with assault with intent to murder 1 and assault with intent to rape. 2 Following a jury trial in Detroit Recorder's Court defendant was convicted of both offenses. He was sentenced to a prison term of 20 to 30 years on the first count and 61/2 to 10 years on the second count. By order dated November 15, 1975, this court granted defendant's application for delayed appeal.
Defendant raises three issues on appeal, only one of which merits discussion.
As to Count 1 of the information the trial court instructed the jury that their verdict could be [73 MICHAPP 591] guilty of assault with intent to murder, guilty of assault with intent to do great bodily harm less than murder, guilty of felonious assault or not guilty. As to Count 2 the jury was instructed that their verdict could be guilty of assault with intent to rape or not guilty.
The defendant requested instructions on assault and battery on Count 1 and attempted rape on Count 2. Both requests were refused.
The rules governing the necessity of instructing on lesser included offenses have recently been reviewed and expanded in People v. Chamblis, 395 Mich. 408, 236 N.W.2d 473 (1975), and People v. Jones, 395 Mich. 379, 236 N.W.2d 461 (1975). In Jones the court said:
"In the area of "cognate" lesser offenses, the evidence in each case adduced at the particular trial must be examined to determine whether that evidence would support a conviction of the lesser offense." Id. at 390, 236 N.W.2d at 465.
A "necessarily included" offense is one which necessarily must be committed before commission of the greater offense is possible. The greater offense must include all the legal and factual elements of the "necessarily included" lesser offense. A "cognate offense" is an offense which contains some elements not contained in the greater offense but which is related to the greater [73 MICHAPP 592] offense by the fact that it shares several of the elements of the greater offense and is of the same class or category. People v. Jones, supra.
Assault and battery is not an offense necessarily included within the crime of assault with intent to murder. People v. Jones, supra, People v. Ray, 56 Mich.App. 610, 224 N.W.2d 735 (1974), People v. Stram, 40 Mich.App. 249, 198 N.W.2d 753 (1972).
We must examine the evidence in this particular case, therefore, to determine whether that evidence would support a conviction of the lesser offense. Applying the test established in People v. Chamblis, supra, we conclude that it would. If defendant had been originally charged only with assault and battery the evidence adduced at trial would have supported a guilty verdict. The requested instruction therefore should have been given. See People v. Chamblis, supra, 395 Mich. at 423, 236 N.W.2d 473.
Reversal is not required, however, for two reasons. First, the defendant was convicted of the charged offense even though instructions were given on the two lesser offenses of assault with intent to do great bodily harm less than murder and felonious assault. If the jury had doubts about defendant's guilt of the charged offense but believed him to be guilty of some wrongdoing they could have found him guilty of one of the lesser offenses. They did not do so. We must conclude, therefore, that the jury had no reasonable doubt as to the defendant's guilt of the charged offense. Second, on retrial the jury could not be instructed any differently than they were at the original trial because of the rule announced in Chamblis, supra, prohibiting instruction on lesser included offenses for which the maximum allowable incarceration period is one year or less in any case in which the charged offense is punishable by incarceration for more than two years.
[73 MICHAPP 593] Defendant's conviction of the offense of assault with intent to murder is therefore affirmed.
Attempted rape is an offense necessarily included within the crime of assault with intent to rape. People v. Patskan, 387 Mich. 701, 713, 199 N.W.2d 458 (1972). 3 Although the undisputed evidence may be compatible only with a verdict of guilty of the greater offense or not guilty, the trial court must always instruct, nevertheless, on a necessarily included lesser offense since the Supreme Court has ruled that in such a case "the evidence will always support the lesser if it supports the greater". People v. Jones, supra, 395 Mich. at 390, 236 N.W.2d at 465. People v. Lovett, 396 Mich. 101, 238 N.W.2d 44 (1976). 4
[73 MICHAPP 594] We must conclude, therefore, that the trial court erred in refusing to instruct the jury on attempted rape. However, we must also conclude that the jury found that the crime of attempted rape had been committed since they found the defendant guilty of the greater offense of assault with intent to rape.
We, therefore, adopt the remedy employed by the Supreme Court in People v. Jenkins, 395 Mich. 440, 236 N.W.2d 503 (1975), and noted with approval in People v. Hoffmeister, 394 Mich. 155, 157, fn. 1, 229 N.W.2d 305, 306, fn. 1 (1975). The present case is remanded for entry of a judgment of conviction of the lesser included offense of attempted rape and for resentencing. If the prosecuting attorney is of the opinion, however, that justice would be better served, the trial court shall, upon notification by the prosecutor prior to resentencing, vacate the judgment of conviction and grant a new trial on the charge of assault with intent to rape. Cf., People v. Allen, 390 Mich. 383, 212 N.W.2d 21 (1973), People v. Borders, 37 Mich.App. 769, 195 N.W.2d 331 (1972).
Affirmed in part; modified in part. Remanded.
* OLLIE B. BIVENS, 7th Circuit Judge, sitting on the Court of Appeals by assignment pursuant to Const.1963, art. 6, § 23, as amended in 1968.
3 The prosecutor relies on People v. David, 211 Mich. 50, 178 N.W. 67 (1920), as authority for the proposition that attempted rape is not a necessarily included offense of assault with intent to rape. While we concur that David supports that propositio...
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