People v. Wilkinson , 76 Mich. App. 109 ( 1977 )

Bronson, J.

(dissenting). I dissent. The majority writes to affirm defendant’s conviction despite the fact that the trial judge refused to give requested instructions on unarmed robbery and larceny from a person, necessarily included offenses of armed robbery. Apparently it is conceded that this was reversible error under People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), and People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975). The majority merely would not apply those cases retroactively.

I would suggest that the Supreme Court has decided that question contrary to the majority position. People v Lovett, 396 Mich 101; 238 NW2d 44 (1976); People v Thomas, 399 Mich 826 (1977). With one exception, a majority of every panel of this Court to consider the question is in disagreement with the majority opinion. People v Jackson, 70 Mich App 478; 245 NW2d 797 (1976); People v Jones, 71 Mich App 270; 246 NW2d 381 (1976); People v Charles Jackson, 71 Mich App 395; 249 NW2d 132 (1976); People v Harrison, 71 Mich App 226; 247 NW2d 360 (1976); People v Page, 73 Mich App 667; 252 NW2d 239 (1977).

As the cases will now stand, the only exceptions to this trend are People v Clemons, 74 Mich App 448; 253 NW2d 795 (1977), where a majority of the panel held that a defense of alibi precluded a defendant from receiving the benefits of Ora Jones retroactively, and this case, where the majority avoids retroactive application of Ora Jones by admittedly engaging in "literary legerdemain”.

I think the required result in this case is clear. Defendant’s armed robbery conviction should not stand. Therefore I dissent.