Appeal from Berrien, William S. White, J.
T. M. Burns, P. J., and V. J. Brennan and M. F. Cavanagh, JJ. T. M. Burns, P. J., concurred. V. J. Brennan, J. (dissenting).
1. -- Jury Verdict -- Assault -- Sentencing -- Clarification of Verdict.
The Court of Appeals cannot assume what the jury did not state or affirm, and where the jury found a defendant guilty of assault to commit robbery while armed, the trial Judge could not sentence for assault with intent to rob while being armed; the trial court has a right and a duty to clarify or attempt to clarify a verdict before discharging the jury.
2. Assault and Battery -- Assault -- Description of Crime.
Assault to commit robbery while armed describes no crime other than simple assault.
3. Assault and Battery -- Assault -- Two Convictions -- Different Specific Intent.
One assault may result in two convictions, as where the offenses involve different specific intents.
4. Assault and Battery -- Simple Assault -- Felonious Assault -- Specific Intent.
Simple assault and felonious assault do not require specific intent.
5. -- Double Jeopardy -- Assault -- Included Offenses -- Felonious Assault -- Dangerous Weapons -- Same Offense -- Multiple Punishments -- Additional Facts.
Assault is an included offense of felonious assault, felonious assault being an assault made with a dangerous weapon; a lesser included offense and the greater offense are the same offense for multiple punishment purposes since the lesser is a necessary element of the greater and each does not require proof of an additional fact which the other does not; where a defendant is found guilty of one offense of what is in reality simple assault and a second offense of felonious assault arising out of the same single act, he is punishable twice for the same offense and under such circumstances the Court of Appeals will vacate the defendant's misdemeanor conviction for simple assault.
6. -- Jury Instructions -- Lesser Included Offenses -- Failure to Object -- Defendant's Own Testimony.
A defendant's claim that it was improper for the trial Judge to have instructed the jury on the lesser included offenses of unarmed robbery and assault with intent to rob being unarmed since these offenses were not factually in issue is without merit where in addition to defendant's failure to object at the trial to the challenged instructions, defense counsel affirmatively expressed satisfaction with the instructions and the ...