*1 653 PEOPLE GUIDRY of the Assault—Sentencing—Clarifi- Jury Verdict — 1. Criminal Law — of Verdict. cation jury did not Appeals what the state cannot assume The Court of affirm, a where or and armed, the trial could while commit assault to being armed; to rob while with intent not sentence for assault clarify attempt duty right a the trial court has jury. discharging clarify a verdict before Battery Assault—Description 2. of Crime. — Assault no crime other while armed describes to commit Assault than Battery —Assault—Two Convictions —Different 3. Assault Specific Intent. convictions, may in two where offenses result as One assault specific intents. involve different Battery Simple 4. Assault Assault— Assault —Felonious — Specific Intent. specific require Simple do not in- and felonious assault assault tent. Jeopardy —Assault—Included 5. Criminal Law —Double Offenses Weapons Dangerous Offense —Same —Felonious Assault — —Multiple Facts. Punishments —Additional assault, felonious is an included offense of felonious Assault [1] [2] [5] [3 6]— [7] [8] 29 Am Jur Necessity 67 76 Am Jur 6 5 incrimination, prior Am Jur Am Jur Am Jur 6 Am Jur Am Jur Am Jur 2d, 2d, 2d, 2d, 2d, 2d, Robbery 2d, informing suspect 2d, References Arrest 69.§ Arrest § Evidence Criminal Law Trial §§ Trial § Assault and 1142. 69. 1163, 1168, 1169. §§ 7.§ police interrogation. for Points 555-557. §§ Battery 314, rights 357, §§ under 50 et Headnotes et seq., 10 ALR3d privilege seq. 57. against 1054. self- App 67 dangerous weapon; assault with a made greater lesser offense are the included offense and the same purposes multiple punishment offense for since lesser is a greater require necessary and each does not element of proof not; *2 does of an additional fact which other where a reality is of one offense of what is in simple arising offense of felonious assault assault and a second act, single punishable out of the same he is twice for the same Appeals offense under circumstances the Court of will and such vacate conviction for the defendant’s misdemeanor as- sault. Jury 6. Criminal Law — Instructions —Lesser Included Offenses— Object Testimony. Failure to —Defendant’s Own improper A defendant’s claim that was for the trial to have instructed the on the lesser included offenses of robbery unarmed assault with intent to rob unarmed factually since these offenses were not is issue without merit object where in addition to defendant’s failure to at the trial to instructions, challenged affirmatively defense counsel ex- pressed satisfaction instructions and the record shows testimony put any that the defendant’s own in issue whether robbery or assault armed or unarmed. 7. Criminal Law —Constitutional Law —Evidence—Miranda Warnings Recognition —Defendant’s Statements — Rights Rights —Waiver of —Volunteered Statements. admissibility Volunteered are statements not barred and their by decision; not affected the Miranda thus where a statement by police made a defendant to was admitted into evidence it did rights not violate the defendant’s constitutional where the rights by defendant had been read his before an interview the police during signed recognition the interview he a written rights rights, and waiver of then was returned to his cell say nothing after he stated that he wished to further until he attorney, delay talked and then after a minutes he summoned officers and told them that he had changed them, his mind and wished to talk to then proceeded give the statement. by J. Jury 3. Criminal Law — Verdicts —Construction of Verdicts —Ju- ry’s Legal Intent —Technical Provisions. reasonably give A verdict should be construed so as to it the Guidry the Court meaning jury, be set aside and should intended meaning reasonably uncertainty cannot be its deter- when clear, quite mined; it is to exalt intent is form where the the failure of a verdict for over to set aside substance legal precision. with technical state its verdict White, Berrien, S. Appeal William Sub- from 6, 1975, Rapids. at Grand mitted November 22282.) (Docket 8, 1976. Decided March No. of assault Donnell was convicted to com- and felonious assault. mit while armed The conviction of assault appeals. is modified commit while armed and va- of felonious assault is af- cated. The conviction firmed. General, Robert A. Kelley,
Frank J. Attorney Smietanka, General, Derengoski, Solicitor John *3 Murphy, Patrick Assistant Prosecuting Attorney, Long, and John Prosecuting Assistant Attorney, Prosecuting people. for the Attorney, Wotila,
Roger L. Appellate Assistant State De- fender, for defendant. Burns, J.,P.
Before: T. M. and V. J. Brennan Cavanagh, M. F. JJ. Cavanagh, charged F. J. Defendant M. with 750.529; 28.797, robbery, armed MCLA MSA with, murder, intent to commit MCLA with assault 750.83; MSA 28.278. At trial the found de- jury guilty fendant of "assault to commit while assault, I armed” on Count and felonious MCLA 750.82; 28.277, given MSA on Count II. He was 10 years prison concurrent sentences of to 50 in on 2 4 on II. years Count I and to Count App 653 656 67 Mich Opinion of the Court I. defendant involves The first issue raised the commit of assault to rob- jury’s "guilty verdict of the verdict and bery accepting while armed”. After trial court informed the dismissing jury, the the guilty defendant that he had been commit while offense "assault to the court informed sentencing armed”. At that he had been found of assault armed, intent to rob while MCLA 750.89; 28.284, and sentenced him MSA accord- ingly. argues verdict was
sufficient him of convict We agree. People 134; McNary, v (1972), issue, NW2d 919 affirmed on substantive remand for. resentencing discharge reversed and ordered, 799; 845. Mich NW2d See also Smith, People v NW2d 164 (1970). The jury’s verdict did include the words open question "with intent”. This leaves whether found the element of intent necessary convict defendant of the crime for which the court him. sentenced We cannot assume People what did not or affirm. state Smith, supra. "Defendant cannot be sentenced for a crime of which the jury clearly did not find him guilty.” People v McNary, supra, 143. The trial clarify court did not or attempt clarify discharging verdict before the jury, although right duty had the and the to do so. supra. McNary, question The verdict describes *4 no crime other than simple assault. People v Mc- Smith, Nary, supra, People v supra. judgment
The trial court’s is modified accord- ingly. People v
II.
is that his
of error
con-
Defendant’s next claim
assault consti-
of felonious
of assault and
victions
one offense because
for
punishment
tute double
the same act. US
from
arose
both convictions
1,
1963,
Const,
art
15.
V;
Am Const
§
the evidence demon
contends
so,
Even
one as
continuing
strates one
convictions, as where the
may result
in'two
sault
intents.
specific
involve different
offenses
(1972),
289;
Assault
is an included
sault,
assault made with
felonious assault
Johnson, 42
People v
dangerous weapon.
544;
A lesser included
202 NW2d
greater
offense are of course
offense and
multiple punishment
purposes,
"same offense” for
element of the
necessary
since the lesser
require proof
of an
greater
and each does
which the other does not. Cf. Peo-
additional
fact
Blockburger
also
v United
ple
Compian, supra,
States,
180;
52 S Ct
Accordingly, simple unless the conviction for in on an act this case is based different from that for defendant was which convicted of assault, felonious could it must be vacated. The evidence reasonably support finding either a of one finding assault or a of two assaults. But we have way knowing jury whether the believed that separate there were two assaults or one as- jury being instructed, sault. The no was never there request charge, in order to convict of they required assault and felonious assault were find two assaults.2 Under these circumstances we think the better course is to vacate defendant’s misdemeanor conviction for III. improper Defendant further contends that it was for the trial to have instructed the on the lesser included offenses of unarmed being and assault with intent to rob unarmed. argues Defendant these offenses were not factually in issue. * objec- This claim of error is without merit. No tion was made at trial to the instructions chal- lenged expressed affirmatively fact, here. In defense counsel Furthermore,
satisfaction. the record put testimony shows that the defendant’s own in any issue whether or assault was armed or unarmed.
IV. Defendant’s final claim of error is that the ad- Even if the had returned convictions of assault with intent being rob II, armed on Count I they and felonious assault on Count required separate would still have been to find two assaults. Felonious assault armed. is an included offense of assault with intent to rob op the Court mission of a statement into evidence made his police violated constitutional Arizona, rights. 384 US Miranda v S Ct 1602; 16 L Ed 2d 694 turned himself in police to the arrested placed Rand, cell holding together his *6 accomplice. by Rand interviewed the police gave and Rand was written statement. returned brought to the cell and defendant out be inter- police viewed. rights; The read defendant his de- signed fendant recognition rights written of and stating of rights. waiver After that he knew the complainant had Washington knowledge but any Washington, assault on defendant police told the he wish to did not make any that further statements and that he did not want say anything further he until talked to an attorney. Thereupon, defendant was returned the holding Thirty later, cell or forty Rand. minutes defendant summoned officers and advised them he changed had his and mind wanted to talk to them. then gave exculpatory He statement incident; concerning the put statement was writing signed by defendant. The written statement was introduced into evidence at trial as part of the prosecutor’s case-in-chief. that, argues police because the did
not advise the rights defendant of his at the sec- ond interview did secure a second waiver of rights, given the statement at the second inter- argument view was The inadmissible. is without merit. When the defendant indicated that he wished to remain silent and to talk with an attor- the interview ney, ceased. It was at defendant’s instance the second took place; interview summoned the officers and indicated that he wished to Clearly talk. defendant volun- App 653 67 Mich Brennan, J. by V. J. Volunteered statement. exculpatory teered admissibility their are not barred statements People v decision. the Miranda not affected is Moore, NW2d and va- I is modified on Count The conviction af- felonious The conviction cated. firmed. Burns, J.,
T. M. P. concurred. (dissenting). respect- I must Cavanagh’s opin- my brother fully dissent from ion. sentenced for be cannot agree
I that a defendant clearly find him did not a crime of which in this clarity I find no lack guilty, but verdict. I am cited Michigan authority,
I can find no none, construction for rules of which states held, however, have jurisdictions verdicts. Other findings and statement that errors in the form *7 reversal where grounds not jury of a will be form, of where consists merely the error is one meaning of terms the which of inaccurate use context, where there is from the clearly appears if in the conclusions of law incompleteness mere corrected, or supplied and readily omissions can be if expression clarity is a lack of where there CJS, 5B See meaning clearly is discernible. the Error, 1788, 55-57, pp and cases Appeal § therein. cited People McNary, relies on v majority
The
(1972),
134;
People
v
203 NW2d
576;
I find
Smith,
The at bar is Here apparent there was no misunderstanding. Neither the court clerk nor asked for a clarifica- Nevertheless, tion. There was confusion. majority would hold found the de- fendant of "assault” but would treat verdict, remainder "to commit merely while armed” as surplusage. This is unrea- sonable and form exalts over substance. Jurors are law, trained will therefore often fail to state their legal preci- verdict technical my sion. In view the intent clear. quite They intended to convict the defendant of assault with intent to commit robbery while armed. Smith,
In
supra, at
I would affirm.