People v. Mahaday
310 N.W.2d 805
Mich. Ct. App.
1981
Check Treatment
Per Curiam.

The defendant was convicted by a Detroit Recorder’s Court jury of first-degree felony murder, MCL 750.316; MSA 28.548, and assault with intent to commit murder, MCL 750.83; MSA 28.278. He was sentenced to life for his conviction of first-degree felony murder and 15 to 20 years for his conviction of assault with intent to murder. The defendant appeals as of right pursuant to GCR 1963, 806.1, raising five claims of error, none of which require reversal.

Defendant first claims that the trial court incorrectly defined malice by including language concerning a "very high risk of death” in its instructions dealing with first-degree felony murder and assault with intent to commit murder. The defendant’s reliance on People v Milton, 81 Mich App 515; 265 NW2d 397 (1978), amended 403 Mich 821 *594 (1978), is misplaced. Milton in no way purports to criticize or reject the "risk” language included in the definition of malice as an element of first-degree felony murder, second-degree (common-law) murder or assault with intent to murder. The issue in Milton was whether the court must specify in a first-degree premeditated murder case, when employing the "risk” language, that its application is limited to the lesser offense of second-degree murder. People v Johnson, 93 Mich App 667; 287 NW2d 311 (1979), People v Burgess, 96 Mich App 390; 292 NW2d 209 (1980). The Milton rule applies solely to proceedings wherein the defendant is charged with first-degree premeditated murder. It has no application to this case.

Secondly, defendant claims that the trial court failed to adequately instruct the jury that drunkenness or drug intoxication may be a defense to first-degree felony murder (armed robbery). We agree that the rule is firmly established that the jury may take into account the degree of drug or alcohol intoxication in determining whether the defendant had the specific intent in order to be guilty of the crime charged. People v Walker, 38 Mich 156, 158 (1878), People v Crittle, 390 Mich 367; 212 NW2d 196 (1973). Our review of the record reveals that the trial court did in fact give an intoxication instruction dealing with first-degree felony murder (armed robbery) and also dealing with the charges of assault with intent to murder and the lesser included offense of assault with intent to do great bodily harm. Further, during the latter charges the trial judge specifically reminded the jury that he had similarly instructed them earlier with regard to first-degree felony murder. There is no factual basis to support the claimed error.

*595 Defendant claimed error with regard to instructions that the trial court was under the duty to instruct the jury sua sponte that it was the prosecution’s burden to negate every theory consistent with the defendant’s innocence. Until the standard jury instructions on circumstantial evidence are revised, this Court will be forced to address this continuing claim of error. See People v Corbett, 97 Mich App 438; 296 NW2d 64 (1980). Here, assuming solely for purposes of argument that the instruction that defendant contends should have been given accurately reflects the state of the law in this jurisdiction and further that this is a "pure circumstantial” evidence case, the trial court is not required to give such an instruction on circumstantial evidence sua sponte. People v Haney, 86 Mich App 311; 272 NW2d 640 (1978), People v Jackson, 100 Mich App 146, 156-157; 298 NW2d 694 (1980). We fail to discern any reversible error here.

Next, defendant claims that the prosecuting attorney committed error when he impeached the defendant with evidence of a prior conviction without first obtaining a court ruling justifying the admission of evidence of the conviction for purposes of impeachment prior to trial. Although the burden is on the prosecution to justify the admission of such evidence, People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978), People v McCartney, 60 Mich App 620; 231 NW2d 472 (1975), there is no authority which requires that the prosecution bring a pretrial motion and obtain a ruling on the admissibility of evidence of the prior conviction if the prosecution intends to cross-examine the defendant about it. To that extent, the defendant is incorrect.

However, a review of the record reveals that the *596 prosecution did propound a question suggesting that the defendant had a prior conviction which, in fact, did not exist. Where the prosecution suggests by its cross-examination that the defendant has prior convictions which do not in fact exist or misrepresents what the prior convictions were in fact for, error occurs in all but the most limited circumstances. People v DiPaolo, 366 Mich 394; 115 NW2d 78 (1962), People v Wright, 38 Mich App 427; 196 NW2d 839 (1972). We are convinced that the error here was unintentional. Only a close reading of defendant’s criminal record would have revealed that the conviction was a misdemeanor rather than a felony, as the prosecutor suggested.

Although the error was unintentional, the prejudice to the defendant must still be measured. Here, the trial judge forcefully instructed the jury that he had determined that the felony suggested by the prosecutor did not exist and to disregard the question in its entirety. These remarks should have instilled in the jurors’ minds that the defendant, in fact, had only one prior conviction. Accordingly, we fail to discern any reversible error.

The defendant’s final claim of reversible error has recently been decided by People v Vaughn, 409 Mich 463; 295 NW2d 354 (1980), even assuming arguendo that the verdicts were in fact inconsistent.

Affirmed.