Dеfendant was convicted on the charge of armed robbеry, MCLA 750.529; MSA 28.797, by an Oakland County Circuit Court jury.
This is another in an increasing number of appeals involving trial court instructions relating to the supposеd obligation of a jury to find a defendant not guilty of the major offеnse charged before it can consider what has been known for years in the judicial terminology of this state as "lesser included offenses”.
This is not the law of the state of Michigan, and to the best оf our knowledge it never was. Trial judges should not so charge explicitly and they should not suggest it implicitly by language such as was used in this cаse. We quote the question charged in the case at bar:
"Now, jury members, the law requires that I also define for you and indicatе to you what are known as lesser included offenses and I am going to do that.
"Now, my instruction to you is that when you undertake to resоlve these matters from the evidence you have heard in аccordance with this instruction that you will ñrst direct yourself to the issue that I have just indicated, that being an issue of whether or not the prosecution has proved beyond a reasonable dоubt that this defendant is guilty of armed robbery as I have described it. If you dо not so find, then you must give consideration to the lesser included offenses that I am now going to describe for you.” (Emphasis supplied.)
This charge comes perilously close to the interdiction in
People v Ray,
The situation created by instructions of like ilk raises the same troublesome and misty gray areas as was created by
People v Lemmons,
" 'There arе 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. ’ ” (Emphasis supplied.)384 Mich at 2 .
This Court construed the
Lemmons
rule in
People v Goldfarb,
We said the Lemmons rule was limited to explicit exclusion rather than to exclusion by implication.
"We read Lemmons to mean that there is a distinction between excluding from thе jury consideration of lesser included offenses by implicatiоn, as in this case, and affirmatively stating that there are no lessеr included offenses. Only the latter constitutes reversible error.
"We have studied Lemmons with great care and can come to no other conсlusion than that which is reflected in the distinction hereinbefore sеt forth. If we err in our construction, this case provides a basis for the Supreme Court to speak to the issue and settle it with finality.”37 Mich App at 58-59 .
Sо in this case the charge did not expressly require a finding of not guilty before the lesser offenses could be considered. Rather the court directed the jury to consider that issue first. Strictly speaking there is no such requirement to our knowledge. How the jury proсeeds in its sacrosanct jury room is not ours to prescribe. Wе hold *93 then, as we did in Lemmons, that the invitation— and that’s all it was — to consider the major сharge of robbery armed, MCLA 750.529, supra, was not reversibly erroneous. We repeat, similar language is better avoided.
We commend the parties for their extensive and helpful briefs.
We have examined the additional claims of error of prosecutorial misconduct and lack of proof beyond a reasonable doubt and find neither merits reversal.
The judgment of conviction is affirmed.