Defendant Lewis Calvin Brown was convicted by a Recorder’s Court jury of the offense of assault with intent to do great bodily harm, contrary to MCLA 750.84; MSA 28.279. He was sentenced to five to ten years in prison. He appeals on leave granted.
The defendant’s first objection pertains to conduct of the voir dire. He asserts that the trial court violated the clear mandate of
People v Milkovich,
On a prior occasion when this Court was faced with a similar fact situation, we observed that:
"The posed question purports to inquire as to the state of mind of the juror, but really involves a statement of legal principle. There are several approaches in the courts of other States to this problem of voir dire interrogation involving rules of law. For a recent compilation, see 99 ALR2d 1 [7] and 50 CJS, Juries, §275. One of the preferred methods is to have the court briefly outline the rules of law covered in the voir dire requests, and then ask the jurors if they would and could follow such instructions. Clem v State, (1958), 166 Tex Crim 429 (314 SW2d 579 ). Any other course is likely to result in undue repetition of certain rules.” People v Lambo,8 Mich App 320 , 325, (1967).
By virtue of GCR 1963, 511.3 the examination of prospective jurors may be conducted by the court or, in its discretion, by the respective attorneys. The general rule is that the scope of voir dire examination of jurors rests largely in the discretion of the trial judge and his decision will not be set aside absent an abuse of discretion.
Corbin v Hittle,
Much of the voir dire was personally conducted by the trial judge. He covered the subject areas which one would expect to be of greatest concern to counsel. When two potential jurors made positive responses to certain questions the trial judge carefully interrogated them with respect to possible disqualifying factors which their initial responses might indicate the existence of. Both veniremen were asked if they could afford defendant a fair and impartial trial based upon the evidence adduced at trial. They responded in the affirmative.
2
Moreover, the trial court asked
all
jurors whether they knew of any reason which would preclude them rendering a fair and impartial verdict in the case at hand. In
People v Lockhart,
We decline to follow People v Milkovich, supra. We find it difficult to reconcile Milkovich with prior decisions of our Court with respect to the scope of discretion entrusted to the trial judge in conducting the voir dire. We are reluctant to fashion a per se rule which totally precludes the trial court from instructing the veniremen as to the applicable law and inquiring if everyone was willing to apply the stated principles during the course of their deliberations.
Defendant’s final claim revolves around the presentence report. He claims that MCLA 771.14; MSA 28.1144, makes a presentence report mandatory in all felony cases. He asserts that even if it can be said that defendant had the power to waive the presentence report, this waiver must have been a nullity because the record indicates that defendant was under a misapprehension as to the purpose of such a report.
In
People v Amos,
A petition for rehearing was granted, however, and on February 2, 1973, a new opinion was filed in this case. In this opinion the majority (Judge J. H. Gillis and Judge Targonski), in an opinion authored by the former, states, and we adopt as the holding of this case:
"On rehearing, we do not reach the question whether the preparation of the report is mandatory. Assuming arguendo that it is, we are nevertheless convinced that *597 a defendant does have the power to waive a statutory right.
"It is not seriously questioned that a defendant has the power to weave constitutional rights, provided he does so intelligently, understandingly and voluntarily. Johnson v Zerhst,304 US 458 , 464;58 S Ct 1019 , 1023;82 L Ed 1461 , 1466 (1938); Carnley v Cochran,369 US 506 ;82 S Ct 884 ;8 L Ed 2d 70 (1962); Boykin v Alabama,395 US 238 ;89 S Ct 1709 ;23 L Ed 2d 274 (1969). See e.g., People v Jaworski,387 Mich 21 (1972). Constitutional rights take precedence over statutory rights. U S Const, Art VI, § 2. See also 16 Am Jur 2d, Constitutional Law, § 50, pp 221-223.
"If a defendant has the power to waive rights deemed to be of constitutional dimensions, a fortiori he has the power to waive a right deemed of lesser importance, i.e., a statutory right.
"There is no question on this record that the waiver herein was made intelligently, understandingly and voluntarily. Accordingly, we affirm.” People v Amos (On Rehearing), 44 Mich App 484, 485-486 (1973).