T. G. Kavanagh, C. J. Williams, Levin, and Fitzgerald, JJ., concurred with T. G. Kavanagh, C. J. Ryan, J. took no part in the decision of this case. M. S. Coleman, J. (concurring). Lindemer, J. (dissenting).
1. -- Instructions to Jury -- Lesser Included Offenses -- Objection.
Defense counsel's objection to the giving of instructions to the jury on lesser included offenses is not controlling: it is the duty of the trial court to instruct the jury as to the law applicable to the case, and neither the defense nor the prosecution has the option of precluding the court from carrying out this duty in hopes of forcing an "all or nothing" verdict (MCL 768.29; MSA 28.1052).
2. -- Instructions to Jury -- Lesser Included Offenses -- Fair Notice.
A trial Judge may instruct the jury sua sponte on a lesser included offense where evidence is adduced at trial which would warrant conviction of the lesser offense and the defendant has been afforded fair notice of the lesser included offense by the language of the charging document; there is no fair notice problem presented in a case where the lesser offense is necessarily included in the greater.
3. -- Instructions to Jury -- Lesser Included Offenses -- Request to Charge.
A defendant is not precluded from or limited in requesting an instruction to the jury on a cognate lesser included offense justified by the evidence adduced at trial, even where the specific language of the charging document does not mention each fact required to convict of the lesser offense.
4. -- Instructions to Jury -- Lesser Included Offenses -- Evidence.
A trial Judge's right and obligation to charge the jury on lesser included offenses does not depend upon whether there is a conflict or rebuttal or impeachment of the people's evidence; in determining whether to instruct on a lesser included offense, the Judge should recognize the jury's right to believe or disbelieve any or all of a witness's testimony.
5. -- Instructions to Jury -- Lesser Included Offenses.
A requested instruction on a lesser included offense must be given if, had the defendant been originally charged only with the lesser offense, the evidence adduced at trial would have supported a verdict of guilty on that charge.
6. Robbery -- Unarmed Robbery -- Elements of Crime.
Elements of a crime are, by definition, positive; the absence of the element of use of a weapon is not a distinct, separate element of the crime of unarmed robbery, so that "robbery" and "unarmed robbery" are the same offense, a necessarily lesser included offense of armed robbery (MCL 750.529, 750.530; MSA 28.797, 28.798).
7. Robbery -- Lesser Included Offenses -- Larceny From the Person.
Larceny from the person embraces the taking of property in the possession and immediate presence of the victim, and robbery is committed only when there is larceny from the person with the additional element of violence or intimidation; hence every robbery necessarily includes larceny from the person and every armed robbery necessarily includes both unarmed robbery and larceny from the person as lesser included offenses (MCL 750.357, 750.529, 750.530; MSA 28.589, 28.797, 28.798).
8. Robbery -- Lesser Included Offenses -- Larceny From the Person -- Instructions to Jury.
A defendant who was charged with armed robbery was properly convicted of larceny from the person where the trial Judge, over defense counsel's express objection, instructed the jury on the lesser included offenses of unarmed robbery and larceny from the person and there was evidence produced to establish the crime of which defendant was convicted (MCLA 750.357, 750.529, 750.530).
9. -- Lesser Included Offenses -- Compromise Verdicts.
Whenever a court instructs the jury on lesser included offenses, it makes possible compromise verdicts, but the exercise of power by the jury in convicting of a lesser offense than may be justified by the court's view of the evidence is another instance of the discretion we see in the daily exercise of power by magistrates, Judges, prosecutors and police officers who divert and screen out apparently guilty persons from the full strictures of the law.
10. -- Lesser Included Offenses -- Misdemeanors.
The reasons for the common-law rule that one accused of a felony could not be convicted of a misdemeanor included offense have disappeared, and it is now generally held that under an indictment for a felony, conviction may be had of any lesser included offense, including a misdemeanor.
11. -- Lesser Included Offenses -- Misdemeanors -- Policy.
The cause of Justice is not well served by charging a serious crime and convicting of a much lower offense; therefore, as a matter of policy, in any case wherein the charged offense is punishable by incarceration for more than two years, the court, whether or not requested, may not instruct the jury on lesser included offenses for which the maximum allowable period of incarceration is one year or less.
12. Robbery -- Armed Robbery -- Lesser Included Offenses -- Larceny From the Person.
Unarmed robbery and larceny from the person are necessarily lesser included offenses of armed robbery; it is the "taking of any money or other property, which may be the subject of larceny" which distinguishes this offense from the varieties of assault (MCL 750.529, 750.530, 750.357; MSA 28.797, 28.798, 28.589).
13. -- Instructions to Jury.
The Judge alone has the authority to decide what instructions are to be submitted to the jury, although the advice of counsel may be requested.
14. -- Instructions to Jury -- Lesser Included Offenses.
A Judge, upon request of defense counsel, may instruct the jury only on the principal charge and omit instructions on lesser included offenses but the Judge is not restricted in his charge by counsel's request that the jury consider only the offense charged.
15. -- Instructions to Jury -- Lesser Included Offenses -- Objection by Defendant.
The informed choice of defense counsel to restrict attention to the principal charge by objecting to proposed instructions on lesser included offenses has not been foreclosed by case law or statute.
16. -- Lesser Included Offenses -- Instructions to Jury.
The statute allowing a jury to find the accused not guilty of an offense in the degree charged in the indictment while still allowing a guilty verdict of any lesser degree of the charged offense does not speak to jury instructions on lesser included offenses, nor does the statute requiring instructions on the law applicable to the case mandate what law is applicable (MCL 768.29, 768.32; MSA 28.1052, 28.1055).
17. -- Lesser Included Offenses -- Instructions to Jury.
In the context of our adversary system of Justice, there may be times when, for an attorney to protect his client's interests, he must insist that an "all or nothing" choice be made and his request that instructions on lesser ...