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12/18/75 PEOPLE v. JENKINS

December 18, 1975

PEOPLE
v.
JENKINS



T. G. Kavanagh, C. J. Williams, Levin, and Coleman, JJ., concurred with T. G. Kavanagh, C. J. Fitzgerald, Lindemer, and Ryan, JJ., took no part in the decision of this case.

SYLLABUS BY THE COURT

1. Homicide -- First-Degree Murder -- Lesser Included Offenses -- Instructions to Jury.

In every trial for first-degree murder, including felony murder, the court is required to instruct the jury sua sponte, even over objection, on the included offense of second-degree murder (MCL 750.316, 750.317).

2. Homicide -- First-Degree Murder -- Lesser Included Offenses.

A jury which returns a verdict of guilty of murder in the first degree necessarily finds that the lesser included offense of second-degree murder was committed (MCL 750.316, 750.317).

3. Homicide -- First-Degree Murder -- Lesser Included Offenses -- Failure to Instruct Jury -- Remedy.

The proper remedy in a case in which defendant was convicted of first-degree felony murder but the trial Judge failed to instruct the jury on second-degree murder, and in which the elements of second-degree murder were proven, is a reduction of the conviction to second-degree murder, because the jury necessarily found the defendant guilty of second-degree murder (MCL 750.316, 750.317).

The opinion of the court was delivered by: Kavanagh

Donalda Jenkins was convicted by a jury in Recorder's Court of Detroit, George T. Ryan, J., of first-degree felony murder. No jury instruction was given on lesser included offenses, nor were there any requests for such instructions. The Court of Appeals, T. M. Burns, P. J., and J. W. Fitzgerald and R. B. Burns, JJ., granted the prosecutor's motion to affirm in a memorandum opinion (Docket No. 13919). Defendant appeals. Held:

1. In every trial for first-degree murder, including felony murder, the court is required to instruct the jury sua sponte, and even over objection, on the included offense of second-degree murder. This exception to the general rule, that absent a request the trial court is not required to instruct on lesser included offenses, is made because of the significant difference in the penalties for first- and second-degree murder, and because every charge of first-degree murder necessarily includes the lesser offense of second-degree murder.

2. The proper remedy in this case for the failure of the court to instruct the jury on second-degree murder is to reduce the degree of the conviction and remand for resentencing. The elements of second-degree murder were proven, and a jury which returns a verdict of guilty of murder in the first degree necessarily finds that the lesser included offense of second-degree murder was committed.

3. If the prosecuting attorney is persuaded that the ends of Justice would be better served, upon notification to the trial court before resentencing, the conviction shall be vacated and a new trial granted on a charge of first-degree murder.

The opinion applies to this case and to all cases tried after January 1, 1976.

Defendant was charged with first-degree felony murder and convicted by a jury. MCLA 750.316; MSA 28.548. The conviction was affirmed by the Court of Appeals. We granted ...


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