People v. Cardigan , 41 Mich. App. 629 ( 1972 )

41 Mich. App. 629 (1972) 200 N.W.2d 446

PEOPLE
v.
CARDIGAN.

Docket No. 11685.

Michigan Court of Appeals.

Decided June 28, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Stanley Everett, Prosecuting Attorney, and J. Thomas Schaeffer, Assistant Prosecuting Attorney, for the people.

Peter W. Hirsch, for defendant on appeal.

Before: R.B. BURNS, P.J., and LEVIN and TARGONSKI,^[*] JJ.

PER CURIAM.

The defendant, Howard Cardigan, appeals his conviction of breaking and entering an occupied dwelling. MCLA 750.110; MSA 28.305.

The trial judge did not err in refusing to charge on the lesser included offense of entering without permission. MCLA 750.115; MSA 28.310. A judge is not obliged to instruct on a lesser offense unless the jurors can reasonably infer from the evidence, or lack of evidence, that the greater offense was not committed and that the lesser offense was committed. People v Gregory Thomas, 38 Mich App 777, 779 (1972); People v Membres, 34 Mich App 224 (1971).

Here the evidence shows only that the greater offense, breaking and entering an occupied dwelling, was committed. There was no conflict in the testimony of the people's witnesses. The testimony of the people's witnesses was not impeached. The defense was alibi.

Nor do we find error in the instruction concerning the alibi defense. Read in context, the instruction was a balanced explanation of the nature of the defense which apprised the jurors of their obligation to both the people and the defendant in appraising the defense. It was entirely fair to the defendant. The "quality and credence of the testimony was for the jury to determine". People v Hudson, 386 Mich 665, 671 (1972).

Affirmed.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.