30 Mich. App. 384 | Mich. Ct. App. | 1971
Defendant Herbert Van Smith, Jr., and a codefendant were charged with breaking and entering a business place with intent to commit larceny, MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305). Defendant Smith was found guilty by a jury and sentenced to 7-1/2 to 10 years imprisonment.
On appeal, counsel for defendant Smith urges reversible error by the trial judge in refusing to instruct the jury on the lesser included offenses of (1) entering a building, without breaking, with intent to commit larceny, MCLA § 750.111 (Stat Ann 1970 Cum Supp § 28.306), and (2) entering a building, without breaking, and without permission, MCLA §750.115 (Stat Ann 1962 Rev §28.310).
The record is entirely devoid of any indication that defense counsel requested or was prevented from requesting instructions on lesser included offenses before the commencement of the charge to the jury by the trial judge. The only discussion on the subject came after the judge’s charge had been completed, in a colloquy which took place after the jury had been sent to the jury room. The lesser offenses referred to above were then discussed between the court, counsel for the people, and counsel for the defense. Thereafter, the trial judge concluded that under the defendant’s proofs he was either innocent altogether or he was guilty of the offense charged in the information. The trial judge also denied the request to charge on lesser included offenses because it was not timely made.
We disagree with the trial court’s ruling that neither entering without breaking with intent to
The law of Michigan concerning instructions to juries on lesser included offenses has been a most troublesome one for trial judges in this state. The difficulty stems from the interpretation and application of MCLA § 768.32 (Stat Ann 1954 Rev § 28-.1055), which provides:
“Upon an indictment for any offense, consisting of different degrees, as prescribed in this chapter, the jury may find the accused not guilty of the offense in the degree charged in the indictment and may find such accused person guilty of any degree of such offense, inferior to that charged in the indictment, or of an attempt to commit such offense.”
Research reveals very little concerning the reasons for the original passage of the cited law, and it can well be argued that in practice it has little to commend it other than its venerable age. See R S 1846, ch 165, § 13. A fundamental principle of criminal law is that a man accused of a crime is entitled to be informed of the nature of the charge against him so that he might defend himself. This statute would appear to violate that right since it permits a defendant to be convicted of an offense other than that set forth in the information, so long as it is lesser and included, or an attempt. In answer, it can be argued that the statute does not prejudice the defendant because having been put on notice to defend against the principle offense and all of its elements, he is not required to meet any
Thus assuming, as we must here, that we would be compelled to reverse had the trial judge been requested to charge on lesser included offenses before commencing his instructions to the jury, is the same result required here, where the request came afterward?
We think not. Diligent defense counsel surely must be aware of the rule that if he wishes instructions on lesser included offenses he should ask for them and that such request must be timely made. MCLA § 768.29 (Stat Ann 1954 Rev § 28.1052); GCR 1963, 516.1. While a court has an independent right to instruct upon lesser included offenses, even over the objection of defense counsel, Hanna v. People (1869), 19 Mich 315; People v. Herrera (1968), 12 Mich App 67, still it is entirely proper and perhaps even to be encouraged that the trial judge refrain from doing so in the absence of a request, and thus not • inject himself into what usually amounts to legitimate trial strategy on the part of both prosecution and defense.
MCLA §768.29 (Stat Ann 1954 Rev § 28.1052), provides that “the failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused”. Under GCR 1963, 516.1, such request must ordinarily come at or before the close of the evidence. This procedure is designed to enable the judge to satisfy his duties of presenting instructions to the jury that are intelligble, coherent, and accurate. People v. Murray
Affirmed.