People v. Hughes

26 Mich. App. 355 (1970) 182 N.W.2d 631

PEOPLE
v.
HUGHES

Docket No. 8,111.

Michigan Court of Appeals.

Decided August 28, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Patricia J. Pernick, Assistant Prosecuting Attorney, for the people.

John B. Carlin, Jr., for defendant on appeal.

Before: V.J. BRENNAN, P.J., and J.H. GILLS and O'HARA,^[*] JJ.

PER CURIAM.

Defendant appeals as of right from a jury conviction of armed robbery contrary to MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797). He contends that the trial court committed reversible error by failing to charge the jury on the lesser included offense of robbery unarmed and by failing to charge with respect to the credibility of complainant's identification of him. Defendant also contends that the evidence was not sufficient to convict beyond a reasonable doubt.

The people have filed a motion to affirm. GCR 1963, 817.5(3).

An instruction on the lesser included offense was not required because there was no evidence to support a conviction of robbery unarmed. See People v. Martin #1 (1970), 21 Mich. App. 207, and cases cited there. A witness's identification of a defendant raises an issue of credibility. People v. Myers (1969), 16 Mich. App. 618; People v. Caldwell (1969), 20 Mich. App. 224. The trial court adequately instructed the jury on that issue. Finally, the transcript shows sufficient evidence to convict beyond a reasonable doubt.

It is manifest that the questions sought to be reviewed and on which the decision of the cause depends are so unsubstantial as to need no argument or formal submission. Motion to affirm is granted.

NOTES

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