People v. Roshinsky

37 Mich. App. 754 (1972) 195 N.W.2d 282

PEOPLE
v.
ROSHINSKY

Docket No. 11136.

Michigan Court of Appeals.

Decided January 20, 1972.

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

Gerald M. Lorence, for defendant on appeal.

Before: LESINSKI, C.J., and V.J. BRENNAN and TARGONSKI,^[*] JJ.

Leave to appeal denied, 388 Mich. 761.

V.J. BRENNAN, J.

Defendant was tried and convicted of breaking and entering an office building with intent to commit a larceny therein (MCLA 750.110; MSA 28.305) and appeals. A motion to affirm has been filed by the people.

Upon an examination of the briefs and records it is manifest that the question sought to be reviewed is so unsubstantial as to need no argument or formal submission.

Motion to affirm is granted.

TARGONSKI, J., concurred.

LESINSKI, C.J. (concurring).

In the instant case this Court is again required to examine the issue raised in People v Lemmons, 384 Mich. 1 (1970). The judge charged the jury that "the only two possible verdicts are the same as to each defendant: either guilty as charged or not guilty". The defendant neither requested an instruction on lesser included offenses nor objected to the failure of the trial court to so instruct even though counsel was given an opportunity to so do. Counsel indicated satisfaction with the instructions.

This Court has uniformly read Lemmons literally, to require reversal only where the trial court affirmatively excluded lesser offenses from the consideration of the jury by stating "There are no included offenses." See, e.g., People v Maxwell, 36 Mich. App. 127 (1971); People v Busby, 34 Mich. App. 235 (1971); People v John Wesley Brown, 32 Mich. App. 262 (1971); People v Herbert Van Smith Jr., 30 Mich. App. 384 (1971); People v Patskan, 29 Mich. App. 354 (1971); and People v McCormick, 28 Mich. App. 550 (1970).

I do not read Lemmons to require the courts to apply a magic words doctrine in applying the law as pointed out in my dissents in People v Membres, 34 Mich. App. 224 (1971), and People v Busby, supra. As I stated in footnote #1 in Busby, p 239, the Supreme Court should clarify this area as Lemmons is in apparent conflict with People v Stevens, 9 Mich. App. 531 (1968).

Having raised the issue and having found myself in the minority on my Court, I reluctantly concur in the affirmance as no purpose would be served by continually dissenting on this issue.

NOTES

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