195 N.W.2d 307 | Mich. Ct. App. | 1972
PEOPLE
v.
ROHN
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, C. Homer Miel, *727 Prosecuting Attorney, and Charles H. Miel, Assistant Prosecuting Attorney, for the people.
G.R. Pete Frye, for defendant on appeal.
Before: R.B. BURNS, P.J., and FITZGERALD and V.J. BRENNAN, JJ.
R.B. BURNS, P.J.
Defendant was convicted of breaking and entering with intent to commit larceny. MCLA 750.110; MSA 28.305.
Defendant requested the trial court to instruct the jury on the lesser included offense of entering without permission. MCLA 750.115; MSA 28.310. The trial court denied the request and the defendant appeals. However, the trial court gave instructions on the following included offenses: entering without breaking MCLA 750.111; MSA 28.306, and larceny MCLA 750.360; MSA 28.592.
In People v Stevens, 9 Mich. App. 531 (1968), Justice T.G. KAVANAGH, then a member of this Court, stated on pages 533-534:
"These first two assertions of error indicate confusion about the duty of the trial judge to instruct. Where a request has been made to charge on a lesser included offense, the duty of the trial judge is determined by the evidence.
"If evidence has been presented to support a conviction of the lesser offense, the requested instructions must be given; failure to do so would constitute error. People v. Jones (1935), 273 Mich. 430. If, on the other hand, no evidence has been presented to support a conviction of the lesser offense, then the requested instruction should be refused. People v. Utter (1921), 217 Mich. 74; People v. Hearn (1958), 354 Mich. 468."
*728 In the present case there was no evidence introduced to support the defendant's requested charge.
Defendant also claims the trial judge admitted prejudicial hearsay testimony by a detective. The detective was testifying as to what he had said. Such testimony does not constitute hearsay since its value did not depend on the credibility of an out-of-court asserter. McCormick, Evidence, § 225, pp 459, 460.
Affirmed.
All concurred.
