252 N.W.2d 563 | Mich. Ct. App. | 1977
PEOPLE
v.
SHEARS
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harold S. Sawyer, Prosecuting Attorney, for the people.
Loeks, Buth, Wood & Weidaw, for defendant on appeal.
Before: D.F. WALSH, P.J., and QUINN and BASHARA, JJ.
QUINN, J.
A jury convicted defendant of assault to do great bodily harm less than the crime of *684 murder, MCLA 750.84; MSA 28.279. Following sentence, he appeals on one issue:
"Whether the trial court committed reversible error by instructing the jury that they could not consider lesser included offenses until finding defendant not guilty of the charged offense?"
Defendant's argument in support of his affirmative position on this issue stems from People v Ray, 43 Mich. App. 45, 50; 204 NW2d 38 (1972), where this Court said:
"* * *, the requirement of unanimous agreement on defendant's innocence of the greater charge before discussion of the lesser charges is permitted is coercive, unduly restrictive and reversible."
However, we find Ray inapplicable to the instruction attacked here. It contained no "unanimous agreement" requirement before proceeding to consideration of lesser offenses. We recognize that People v Harmon, 54 Mich. App. 393; 221 NW2d 176 (1974), supports defendant, but we prefer the more restrictive rule of Ray, supra. We note that defendant concedes that the language quoted from People v Hurst, 396 Mich. 1, 10; 238 NW2d 6 (1976), and relied on by him is dicta. We decline to follow it.
Affirmed.
