These defendants were tried on two counts; assault with intent to commit murder, MCLA 750.83; MSA 28.278, and armed robbery, MCLA 750.529; MSA 28.797. A jury convicted defendant Erwin of both counts and he was subsequently sentenced to prison terms of 12-1/2 to 25 years and 10 to 20 years, respectively. The same jury convicted defеndant Kilgore of armed robbery only. He was sentenced to a prison term of 10 to 20 years. Both defendants appeal as of right.
Defendant Erwin raises the only issue meriting discussion: whether the instructions regarding the jury’s consideration of lesser included offenses werе so "coercive” and "unduly restrictive” as to constitute reversible error per
People v
Ray,
The critical portion of the instructions in People v Ray, supra, is reproduced below:
"Juror No. 1: Wе want to know — Do we have to vote on the first charge, the second charge аnd the third charge separately, or—
"The Court: All right, let me see if I can explain it.
"If you find the defendant not guilty of the first charge, then go to the second charge. You don’t have to vote on all of them. If you find him guilty of the first charge, there is no need to go to the other charges.
"You can only find him guilty of one of those charges.
"Juror No. 1: That’s right. Now, how many votes can we take on the first charge?
"The Court: You can take — unlimited.
"Juror No. 1: If we insist — if someone insists upon *62 taking a vote on the first charge, do we have to keep voting on that charge?
"The Court: Well you have to either keep voting оn the ñrst charge until you either all ñnd him not guilty, or all ñnd him guilty. ”
(Emphasis in
Ray.)
Similar instructions were given in the instant case. At thе commencement of its charge to the jury, the court stated:
"This is a criminal casе, as I indicated to you the court can accept a verdict only when all twelve of you agree upon a verdict.”
Later in its instructions the court told the jury:
"If you are not convinced of the assаult with intent to commit murder, I would ask you to go on and consider assault with intent to commit great bodily harm less than the crime of murder. There again, your verdict may be guilty by one or both оf the defendants, or not guilty by one or both of the defendants.
"If you find them not guilty of those first two сharges, or one of the defendants not guilty of those first two charges, I would ask you to go on and consider the second included offense which is known as felonious assault; you may find the defendant guilty of one or both of those or not guilty of one or both of those.
"With regard to the assault with intent to commit murder, I would ask you to consider that and go on to the lesser and included offenses only if you find a defendant not guilty of assault with intent to cоmmit murder, and then go on down the list of included offenses.
"Likewise, after you have finished cоnsidering that, then I would ask you if you find both defendants not guilty of that charge, then I would ask you to go on and *63 consider the assault with intent to do great bodily harm less than the crime of murder.
"If you found them both not guilty on that, you would have to go on to felonious assault.
"On count I and thе included offenses it would be either guilty or not guilty on one of the offenses, and on count II which is the armed robbery, and I have written out here, if defendant Erwin is not guilty, then defendant Kilgorе must be found not guilty on each of the individual charges you consider. I think it is self-explanatory. Both attorneys have seen it, so I will give this to you, but there must be a verdict on count I and сount II. When I say count I, I want you to consider the included offenses if you find them not guilty on the mаjor offense.”
There were no objections to the charge.
Many decisions of this Court have not followed the
Ray
case where the trial court gave substantially the same instruction cited in
Ray,
but did not go so far as to explicitly state that all the jurors must find the defendant not guilty of thе higher offense before deliberating on the lesser offense. This line of cases characterizes instructions similar to those given in the case at bar as merely indicаting a logical order or guide for the jury’s deliberations and not a rigid requirement of unanimous agreement at each stage of deliberations.
People v Don Francisco Lopez,
Recently, our Supreme Court, in
People v Hurst,
"If you find either of the defendants not guilty of the charge of manslaughter then you should proceed to determine whether that defendant not guilty of the crime of manslaughter is guilty of the crime of assault and battеry.”
Three justices on the Court (Kavanagh, C. J., Williams and Levin, JJ.) signed the opinion which stated the instruсtion was, "unrealistic and improper”. Moreover, those justices expressed nо opinion as to whether the giving of the instruction was reversible error. Absent a more dеfinite ruling by the Supreme Court, we choose to hold the instant instruction does not constitute reversible error. We hasten to add, however, that this type of instruction should be avoided.
Affirmed.