People v. Major

D. E. Holbrook, Jr., P. J.

Defendant was charged with assault with intent to commit murder, MCL 750.83; MSA 28.278, and convicted by a jury of the lesser included offense of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279. Thereafter sentenced to a prison term of not less than 3 nor more than 10 years defendant appeals as of right.

Defendant’s sole claim on appeal is that a particular jury instruction was unduly coercive and mandates reversal under People v Harmon, 54 Mich App 393; 221 NW2d 176 (1974), People v Hurst, 396 Mich 1; 238 NW2d 6 (1976), People v Ray, 43 Mich App 45; 204 NW2d 38 (1972), and People v Summers, 73 Mich App 411; 251 NW2d 311 (1977). We disagree. The instruction of which defendant complains is as follows:

"If you find that the crime would have been manslaughter had death resulted, then you must find the Defendant not guilty of assault with intent to murder and consider whether or not he is guilty of any lesser included offense”. (Emphasis supplied.)

In Harmon, Hurst, Ray and Summers the court instructed the jury differently than in the case at bar. In Ray the court instructed: "Well you have to either keep voting on the first charge until you either all find him not guilty, or all find him guilty.” In Harmon the court in effect instructed the jury that before they could consider lesser included offenses they must first determine that defendant did not commit the principal charge. In Hurst the court instructed: "If you find either of the defendants not guilty of the charge of manslaughter then you should proceed to determine whether that defendant not guilty of manslaughter is guilty of the crime of assault and battery.” In Summers the court delineated to the jury their method of deliberation. The instructing judge told the jury that if they found defendant not guilty of the main charge they should then consider the lesser included offense of attempted armed robbery and if they found defendant not guilty of that they then must consider felonious assault.

In all of the foregoing cases the jury was in effect instructed that a unanimous agreement of all 12 jurors to acquit was required before the jury could consider any lesser included offenses. Such is not the case here. In the instant case when the claimed erroneous instruction is read together with the total instructions it is clear and apparent that the trial judge was simply giving the jury an example of under what situation the jury was required to find the defendant not guilty of the principal charge.

Unlike the instructions given in Hurst, Harmon, Summers and Ray which were held to be prejudicial, the instruction given in the instant case was beneficial to the defendant. As previously noted defendant was not convicted of the principal charge and a reason therefore could well be the instruction to which defendant now objects. We find no reversible error.

Affirmed.