Defendant was found guilty on May 15, 1974 of armed robbery, MCLA 750.529; MSA 28.797, after a jury trial in Detroit Recorder’s Court. He was sentenced to a term of from 2 to 5 years in prison and appeals of right.
On appeal, defendant raises two claims of error. He first contends that the trial court erred by refusing his request to instruct the jury as to the lesser included offense of larceny by trick. At trial, dеfendant took the witness stand and described himself as a "hustler” and "con mаn”. He described a scheme by which he had allegedly tricked the complainant out of a small amount of money. The complainant tеstified that he was accosted by two men, one of whom was wielding a gun. The two robbers fled in a car which the complainant claimed was drivеn by defendant.
For a crime to be a lesser included offense of а greater charged offense, it must as a matter of law have some, but not all of the elements of the
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greater offense,
Genesee Prosecutor v Genesee Circuit Judge,
We must reject defendant’s claim bеcause we find, as a matter of law, that larceny by trick is not a lesser included offense of armed robbery.
"For an offense to be lessеr included it must contain some, but not all of the elements of the higher offense and there must be no additional elements in the 'included’ offense which are not part of the 'higher’ offense.” Genesee Prosecutor v Genesee Circuit Judge, supra, at p 684.
See also
People v Wheat,
The essential elements of armed robbery are: (1) that an assault was committed by defendant upon the complainant, (2) that the defendant feloniously took any prоperty which might be the subject of larceny from the complainant or in his presence, (3) that the defendant was armed with a weapon dеscribed in the statute.
People v McGuire,
Defendant’s contention seems more appropriately a claim that he was denied due process of law by the prosecutor’s chаrging him under the wrong statute. The facts presented by the complainant at trial, however, indicate that the prosecutor had a definite bаsis in fact for the armed robbery charge,
People v Ferguson,
Defendant’s second сlaim of error is that the prosecutor made remarks while cross-examining defendant and in making his closing argument which constituted reversible error. In the first instance cited by defendant, the prosecutor, while bringing out defеndant’s prior convictions, stated: "Now you are trying to flimflam this jury * * * ”. Defense сounsel objected, and the court gave a cautionary instruction which we find to have vitiated any prejudice.
Defendant did not objeсt to the prosecutor’s closing remarks, which he now contends represented prejudicial error. In the absence of such objeсtion, only manifest injustice will require a reversal. MCLA 769.26; MSA 28.1096.
People v Pacely,
"I would like to also at this stage, caution the jury *536 that remarks made by counsel on either side of the case, inсluding their summation of the case, do not constitute evidence in the case, and remarks made by the court do not constitute evidence in the case.
"The evidence in the case comes from the witness stand by persons who have testified before you.”
Affirmed.