DocketNumber： Docket 7,013
Citation Numbers： 175 N.W.2d 320, 21 Mich. App. 207, 1970 Mich. App. LEXIS 2074
Judges： Danhof, Fitzgerald, Mc-Gregor
Filed Date： 1/28/1970
Status： Precedential
Modified Date： 11/10/2024
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Leonard Meyers, Assistant Prosecuting Attorney, for the people.
Eugene A. Sikora, for defendant on appeal.
*208 Before: DANHOF, P.J., and FITZGERALD and McGREGOR, JJ.
PER CURIAM.
Defendant was convicted by a jury in the recorder's court of the city of Detroit of assault with intent to rob and steal being armed,[1] and was sentenced to life imprisonment.
At the trial the testimony of the complaining witness was corroborated by another eyewitness, who also identified the defendant. The defense was alibi and three witnesses testified thereto. The trial court instructed the jury that there were only two possible verdicts in this case, guilty of assault with intent to rob being armed or not guilty.
On appeal the only issue presented by the defendant is whether the trial court should have given additional instructions relating to lesser included offenses. Defendant contends that an instruction on attempted assault with intent to rob being armed should have been given.
There are two reasons why this Court is not convinced by defendant's argument. First, he did not object to the instructions given by the trial court, as required by court rule in order to preserve this issue on appeal.[2] The record shows that when asked by the trial court, "Are you satisfied with the the instructions?" defense counsel answered, "I have no objections." Absent a showing of manifest injustice, objections to instructions cannot be raised for the first time on appeal.
Second, no evidence was presented to support a conviction of the lesser offense. The evidence was undisputed that the crime of assault with intent to rob and steal being armed was committed, and *209 the only defense was that of alibi.[3] Consequently, no instruction on the lesser offense should have been given. People v. Stevens (1968), 9 Mich. App. 531, leave to appeal denied, 381 Mich. 769; People v. Carabell (1968), 11 Mich. App. 519.
Affirmed.
[1] CL 1948, § 750.89 (Stat Ann 1962 Rev § 28.284).
[2] GCR 1963, 516.2.
[3] Defendant claimed he was engaged in a card game at another location at the time the crime was committed.