People v. Membres , 34 Mich. App. 224 ( 1971 )

Y. J. Brennan, J.

The defendant was convicted by a jury of armed robbery¹ and appeals as of right.

Briefly, the evidence adduced at trial showed that the defendant and another man entered a grocery store, pointed a shotgun at the owner, and took money from the cash register and the owner’s wallet. The defense was alibi.

At the trial the defendant requested the court to instruct the jury on the lesser included offense of larceny from the person.² The court denied this request and instructed the jury as follows:

“The possible verdicts in this case are simply two: either not guilty or guilty of robbery armed.”

The sole issue on appeal is whether the court properly refused the requested instruction, and if so, whether the instruction actually given was correct.

Larceny from a person is an included offense of armed robbery. People v. Jessie Williams (1968), 14 Mich App 186. The duty of a judge to instruct on lesser included offenses is determined by the evidence in the case. People v. Stevens (1968), 9 Mich App 531; People v. Norman (1968), 14 Mich App 673. If no evidence has been presented to support a conviction of the lesser offense, the requested instruction should be refused. People v. Hearn (1958), 354 Mich 468; People v. Utter (1921), 217 Mich 74; People v. Milhem (1957), 350 Mich 497.

A review of the record in the present case indicates that there was no evidence whatever to support a charge of larceny from the person. It was undisputed that two men, armed with a dangerous weapon, forcibly took money in the presence of and from the person of the complainant. If a crime was committed at all, it was armed robbery. As there was no dispute on any of the elements of the armed robbery, we think that the court correctly refused the requested instruction. People v. Loncar (1966), 4 Mich App 281, 290.

Having decided that the court had no duty to instruct on any lesser offense, we turn now to the question of whether the court erred in instructing the jury that the only possible verdicts in the case were either not guilty or guilty of robbery armed. The answer to this question requires us to construe the recent case of People v. Lemmons (1970), 384 Mich 1. Lemmons was charged with armed robbery and raised the defense of alibi. No request was made for a charge on lesser included offenses and the court instructed the jury as follows:

“There are only two possible verdicts as to each defendant. You may find the defendant, naming them individually, guilty of robbery armed or not guilty. There are no included offenses(Emphasis supplied.)

In reversing the defendant’s conviction, the Court said:

“In People v. Jones (1935), 273 Mich 430, this Court referred to People v. Allie (1921), 216 Mich 133, saying that in the latter case this Court had recognized the confusion existing in its previous decisions with respect to whether it constituted error to neglect to charge as to lesser included offenses in criminal cases, modified and, in effect, overruled some of them and established the rule that in the absence of a request to charge, the court does not err in failing to instruct upon the included offenses. In Jones this Court went on to say:

“ ‘However, the rule does not excuse improper instructions. Here the court did more than fail to charge upon the included offenses. It affirmatively excluded them from the consideration of the jury. This was error because, under 3 Comp Laws 1929, § 17325, the jury was authorized to find the defendant guilty of a lesser offense.’ (The statutory section now is CL 1948, § 768.32 [Stat Ann 1954 Rev § 28.1055] ).”³ Lemmons, supra, 2, 3.

In the Jones case, upon which Lemmons relies, there was again no request to charge and the court instructed the jury that:

“In the ordinary rape case, there are several lesser offenses included in the major charge, but that is not the fact in this case. There is only one of them here under the testimony that can possibly have anything — any bearing, and that is rape, because there is no argument about there having been a sexual intercourse, nothing else is involved, and you may bring in only one of two verdicts, guilty as charged, or not guilty.” Jones, supra, p 431.

At first blush it may seem that the basis of the Jones and Lemmons decisions was the express, affirmative exclusion of lesser included offenses. The difficulty with this approach is that it is hard to conceive how a lay jury is any less likely to bring in a guilty verdict on a lesser offense when the court expressly prohibits it than when the jurors are simply not told of them; nor does it take into account whether or not there is any evidence to support a charge on lesser offenses. If we hold that the basis of the Lemmons decision is simply that a trial judge may not in any case instruct a jury not to consider lesser offenses, then it is tantamount to saying that juries may bring in guilty verdicts on lesser offenses which are totally unsupported by the evidence. We cannot believe that the brief, two-page opinion in Lemmons was intended to overrule that long line of cases holding that a trial judge may refuse to charge on lesser offenses where the evidence does not support a finding of guilt as to them. The mere fact of the express, affirmative exclusion standing alone is not the answer.

To further explain this problem the case of People v. Netzel (1940), 295 Mich 353, is instructive. There, the defendant was charged with assault with a deadly weapon.⁴ No request for an instruction on lesser offenses was submitted nor did the evidence support a lesser offense. Accordingly, the trial court gave the following instruction:

“Under the charge that I have given you and under the proofs, as produced, there are only two possible verdicts, one of guilty as charged, the other, not guilty.”

In response to the contention that the Jones ease would require reversal because the charge precluded the jury from considering lesser offenses, a majority of the Court held that J ones applies only where there is evidence to support a finding of guilt on a lesser offense.⁵ The rule announced in Netzel, then, is that although a trial judge need not charge on lesser offenses if there is no request therefor, he may not preclude the jury from considering such offenses if there is evidence on the record to support them. The Court in Netzel held that the charge was proper since there was absolutely no evidence to support any lesser offenses. The decision in Netsel is, we think, consistent with a proper interpretation of MCLA § 768.32, quoted in footnote 3. This statute does not serve to empower a jury to find a defendant guilty of lesser offenses “for any offense, consisting of different degrees”. It is not a power statute at all. Bather, it serves to declare and make clear that a criminal accused may be found guilty of an offense different than the one charged in the indictment provided that offense is a lesser included offense or an attempt. Thus, MCLA § 768.32 is merely declaratory of the longstanding rule that due process notice requirements are not violated by convicting an accused of a lesser included offense since lesser included offenses can have no elements different from those in the principal charge. This interpretation of the statute thus avoids the unacceptable result which would obtain if it were held to be a power statute. Under the latter view, a jury would be empowered to find a defendant guilty of a lesser offense even though, there was absolutely no evidence whatsoever to support the offense.

The crux of the present problem, then, is to determine what effect the decision in Lemmons has upon the rules laid down in Jones and Netsel. As was pointed out above, the defendant in Lemmons made no request for an instruction on lesser offenses. The trial court told the jury that there were no included offenses. Under the rationale of Jones and Netsel, reversal would lie only if there was in fact no evidence to support the lesser offenses. In Lemmons, however, the Court did not discuss whether the evidence would support lesser offenses, but merely reversed and remanded for a new trial citing Jones. Although it appears from the brief facts as set forth by the Supreme Court and by our Court⁶ that there may have been no evidence to support a charge on lesser offenses,* ⁷ we will not undertake to assume that the Court in Lemmons so found when to do so would mean that a criminal defendant would be entitled to reversal if a trial judge instructs a jury not to consider lesser offenses which are not supported by the evidence. We therefore hold that Lemmons requires a reversal only where: (1.) there is no request for an instruction on lesser offenses; (2.) there is evidence on the record to support a conviction on a lesser offense so that, if requested, it would have been error to refuse to instruct on it; and, (3.) the court affirmatively excludes the jury from considering lesser offenses. As we mentioned above, the practical difference between “affirmative exclusion” and merely failing to tell the jury about lesser offenses is not clear. It is clear, however, that the entire area of included offenses is in great need of being revisited and restated. Until such time, we are bound to follow the Lemmons decision which we believe should be strictly limited to its facts.

In the case at bar we need not decide whether the court’s charge was equivalent to an affirmative exclusion since there was no evidence to support a finding of guilt on any lesser offenses and therefore Lemmons is inapplicable.

For the foregoing reasons, the defendant’s conviction is affirmed.

Affirmed.

Danhoe, J., concurred.

1 MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797).

2 MCLA § 750.357 (Stat Ann 1954 Rev § 28.589).

3 MOLA § 768.32 (Statj Ann 1954 Rev § 28.1055) 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.”

4 MCLA § 750.82 (Stat Ann 1962 Rev § 28.277).

5 It was said in J ones, 431:

“The complaint is that the court did not charge upon the lesser offenses of assault with intent to commit the crime of rape and assault and battery, included in the major offense, although no request for such instruction was made by defendant. Upon request for such instruction it would have been error to refuse it.” (Emphasis supplied.)

6 People v. Lemmons (1968), 13 Mich App 268.

7 The defendant was charged with armed robbery and interposed the defense of alibi. A defense of alibi, per se, does not mean that a defendant may not be convicted of a lesser offense. A jury may disbelieve a defendant’s alibi but nevertheless find that a disputed element of the principal charge was not proven.