People v. Jones , 71 Mich. App. 270 ( 1976 )

71 Mich. App. 270 (1976) 246 N.W.2d 381

PEOPLE
v.
JONES

Docket No. 24183.

Michigan Court of Appeals.

Decided August 25, 1976.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.

Robert A. Burley, for defendant on appeal.

Before: ALLEN, P.J., AND D.E. HOLBROOK, JR., and E.H. PAPP,^[*] JJ.

PER CURIAM.

A Genesee County jury convicted defendant of armed robbery, MCLA 750.529; MSA 28.797, on January 16, 1975. He was subsequently sentenced to a prison term of 7-1/2 to 15 years and now appeals as of right.

In a prosecution for armed robbery, the people must establish, inter alia, that the defendant took something of value "from [the victim's] person, or in his presence". MCLA 750.529; MSA 28.797, People v McGuire, 39 Mich. App. 308; 197 NW2d 469 (1972). On appeal, defendant argues that the evidence in the present case was insufficient to establish that element of the offense.

There is no merit in the defendant's contention. The trial testimony shows that, acting under the defendant's orders, the victim took money from her employer's cash register and gave it to the defendant. The defendant seems to argue that the proofs were deficient because there was no showing that the money belonged to the victim. But actual ownership is not required. The prosecution need only show that the property was taken "in the presence" of the victim and that the victim's "right to possession" was superior to the defendant's. People v Needham, 8 Mich. App. 679; 155 NW2d 267 (1967), People v Anthony Williams, 37 Mich. App. 257; 194 NW2d 412 (1971). In the present case, the victim's employment duties included handling the money in the cash register. While the money was not hers, her right to possession was clearly greater than the defendant's.

The defendant's other allegation of error is more substantial. The principal charge against the defendant was armed robbery. There is no indication in the record that the defense made an advance request — either written or oral — for instructions on lesser included offenses. Acting on his own, the trial judge instructed only on the principal charge. Then, before the jury was permitted to begin deliberations, the judge asked for comments on his instructions. At that point, the defense for the first time requested instructions on unarmed robbery and assault and battery. After noting the lack of a more timely request, the trial judge nevertheless considered the defense arguments and ruled that the evidence would not support the giving of instructions on the other two offenses. The defendant argues on appeal that the refusal to give an instruction on unarmed robbery was reversible error.

The prosecutor counters that the question was not properly preserved for appellate review because defendant's request for an instruction was not timely made. As noted above, the request was not made until after the judge had completed his instructions to the jury. However, the jury had not yet been released to begin deliberations. Thus there would have been time to give the additional instruction if the judge had granted the defense request. We believe that the defense request came in time to preserve the instructional issue for review. People v Fountain, 392 Mich. 395; 221 NW2d 375 (1974).

Unarmed robbery is a lesser included offense of armed robbery. People v Thomas Jones, 48 Mich. App. 470; 210 NW2d 497 (1973). In the two-tiered system created by People v Ora Jones, 395 Mich. 379; 236 NW2d 461 (1975), unarmed robbery is a "necessarily included" offense, not a "cognate" lesser offense. People v Chamblis, 395 Mich. 408; 236 NW2d 473 (1975).

It is error to fail to give a requested instruction on a lesser included offense where the evidence would support a conviction on the lesser charge. People v Chamblis, supra, noted that a jury is always free to disbelieve even uncontradicted testimony, and therefore held that evidence which establishes the greater offense always supports the giving of instructions on necessarily included offenses. See also People v Ora Jones, supra. That holding impliedly overruled People v Gregory Thomas, 38 Mich. App. 777; 197 NW2d 97 (1972), and People v Stram, 40 Mich. App. 249; 198 NW2d 753 (1972).

If Chamblis and Ora Jones apply in the present case, it is clear that the trial judge erred by refusing to give the requested instruction. The problem is that the trial in the present case occurred nearly a year before Chamblis and Ora Jones were decided.^[1]People v Morris, 69 Mich. App. 545; 245 NW2d 126 (1976), noted the possibility that some of the holdings in Chamblis were intended to have retroactive application — or were simply restatements of existing law — whereas other portions of the opinion were expressly limited to prospective application. People v Jackson, 70 Mich. App. 478; 245 NW2d 797 (1976), announced a similar interpretation of Chamblis and People v Ora Jones, supra. Jackson held that it has always been error to fail to give an instruction on a necessarily included offense; Ora Jones and Chamblis simply reaffirmed that point. On the other hand, the rules on cognate included offenses were originated by Ora Jones and Chamblis and were not intended to apply in trials held before the release date of those decisions. Contrast People v Jackson, supra, and People v Thomas, 68 Mich. App. 302; 242 NW2d 564 (1976).^[2]

The present case involves a request for an instruction on a necessarily included offense, viz., unarmed robbery. Refusal to give the instruction was reversible error. People v Jackson, supra, People v Chamblis, supra.

The conviction is reversed.

NOTES

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

[1] People v Lovett, 396 Mich. 101; 238 NW2d 44 (1976), also an armed robbery case, strongly suggests that Chamblis and Ora Jones do control the present case.

[2] In People v Harrison, 71 Mich. App. 226; 247 NW2d 360 (1976), another panel of this Court followed People v Lovett, supra, by applying People v Ora Jones, supra, retroactively. The possibility that Ora Jones might be only partially retroactive was not discussed; however, the lesser offense in Harrison was a necessarily included offense, not a cognately included offense. Thus, the result in Harrison is consistent with the preceding analysis and the cited cases.