66 Mich. App. 202 | Mich. Ct. App. | 1975
Lead Opinion
Defendant appeals his jury conviction and subsequent sentence for breaking and entering an occupied dwelling with intent to commit larceny, MCLA 750.110; MSA 28.305. Originally, another panel of this Court disposed of the appeal by granting the people’s motion to affirm. By order dated May 21, 1975, the Supreme Court remanded to this Court and stated, "for full consideration of the appeal, including, at a minimum, discussion of Issues I and II of defendant-appellant’s application in this Court”. (See 394 Mich 775.)
We have again reviewed the record and have again considered defendant’s asserted errors. Ex
1. Defendant’s claim of error on the aiding and abetting instruction is controlled by People v Lamson, 44 Mich App 447; 205 NW2d 189 (1973).
2. While we have serious doubts that the intoxication instruction offends People v Crittle, 390 Mich 367; 212 NW2d 196 (1973), when considered with the entire instruction, Crittle is not applicable. Defendant was tried in 1972, see People v Engle, 61 Mich App 628; 233 NW2d 116 (1975).
3. Repetition of the intoxication instruction was not necessary nor was it reversible error not to repeat it, People v Scott, 55 Mich App 739; 223 NW2d 330 (1974).
We hope the foregoing three issues cover issues I and II that defendant presented to the Supreme Court, because remaining issues IV and V present no error and nothing to comment on.
Affirmed.
Before:
Dissenting Opinion
(dissenting). This case was remanded to this Court by the Supreme Court for consideration of issue II, which involves the trial court’s instruction to the jury on the intoxication defense. A review of the record and the evidence presented therein indicates the intoxication defense was properly beforé the trial court. However, the trial court committed reversible error by instructing the jury on the capacity standard in violation of People v Crittle, 390 Mich 367; 212 NW2d 196 (1973). As the defendant’s conviction
