Defendant’s conviction must be reversed because the trial judge failed to instruct on the lesser included offense of attempted armed robbery despite defense counsel’s request.
People v Henry,
Defendant was charged with armed robbery. The trial judge instructed on the lesser included offenses of unarmed robbery and larceny from the
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person. She denied defense counsel’s request for an instruction on attempted armed robbery because she found "no evidence” to support that verdict. The jury convicted the defendant of larceny from the person. The Court of Appeals affirmed the failure to instruct on the lesser included offense of attempted armed robbery because "[tjhere was no evidence of anything but a complete crime”.
In
Jones, supra,
we said: "If the lesser offense is one that is necessarily included within the greater, the evidence will always support the lesser if it supports the greater.”
In lieu of leave to appeal, we reverse defendant’s conviction and remand the cause to Recorder’s Court for a new trial. GCR 1963, 853.2(4).
