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02/09/76 PEOPLE v. BURGESS

February 9, 1976

PEOPLE
v.
BURGESS



Appeal from Recorder's Court of Detroit, Samuel C. Gardner, J.

Leave to appeal denied, 397 Mich .

McGregor, P. J., and Bashara and Allen, JJ.

SYLLABUS BY THE COURT

1. -- Principal -- Aider and Abettor -- Reasonable Doubt -- Jury Instructions -- Court Rules.

The guilt of a principal must be found beyond a reasonable doubt before a defendant can be convicted of aiding and abetting the principal in the commission of a felony and the trial Judge must properly instruct the jury in this regard; where the jury has been instructed as to the reasonable doubt standard and that another's direct commission of the felony was a condition precedent to finding the defendant guilty, there has been sufficient instruction on this point (GCR 1963, 516.2).

2. -- Aider and Abettor -- Intent -- Jury Instructions.

An aider and abettor must, at the time of giving the aid, intend the commission of the crime charged and the jury must be adequately instructed as to the requisite intent that needs to be possessed by an aider and abetter; this requirement was fulfilled where the trial court at one point instructed the jury that in order to convict a defendant as an aider and abettor the jury would need to find that the defendant possessed the same intent to commit the crime that the principal possessed and at a later point fully instructed the jury as to the requisite intent of a principal.

3. -- Jury Instructions -- Aider and Abettor -- Principal -- Intent.

An instruction to the jury on alternative theories of a defendant's guilt -- either as a principal or as an aider and abettor -- that fails to instruct the jury that a verdict on either theory must be unanimous is not prejudicial to the defendant where he has been convicted as an aider and abettor because the jury could not have reached an improper compromise verdict since those members who felt that the defendant was guilty as the principal would have necessarily also found him guilty as an aider and abetter.

4. -- Principal -- Aider and Abetter.

The defendant was not prejudiced by some jurors finding his participation to be more substantial than did other jurors, in view of the abolition of the common law distinction between a principal and an aider and abetter, where both the prosecution and defense theories of the case were predicated upon the guilt of another individual as the principal; to have a conviction as an aider and abettor there must be an individual found to be the principal.

The opinion of the court was delivered by: Mcgregor

Otis Burgess was convicted of assault with intent to do great bodily harm less than murder. Defendant appeals.

Defendant, Otis Burgess, was charged with assault with intent to commit murder (MCLA 750.83; MSA 28.278) but was convicted by a jury of the lesser included offense of assault with intent to do great bodily harm less than murder (MCLA 750.84; MSA 28.279). Subsequently, defendant was sentenced ...


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