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03/23/76 PEOPLE v. EMBREE

March 23, 1976

PEOPLE
v.
EMBREE



Appeal from Kent, George v. Boucher, J.

Leave to appeal applied for.

Danhof, P. J., and Quinn and D. E. Holbrook, Jr., JJ. Danhof, P. J., concurred. D. E. Holbrook, Jr., J. (dissenting).

SYLLABUS BY THE COURT

Opinion of the Court

1. Homicide -- Murder -- Alternative Counts -- Felony Murder -- Premeditation -- Jury -- Unanimous Verdict -- Statutes.

A defendant charged with alternative counts of premeditated and felony murder is not entitled to know upon which theory of first-degree murder he was convicted by a jury, in order to insure his right to a unanimous verdict, where sufficient evidence exists to support a conviction on either count (MCLA 750.316; MSA 28.548).

2. Homicide -- First-Degree Murder -- Second-Degree Murder -- Premeditation -- Felony Murder.

Premeditation and proof of a felony both serve the same purpose of elevating an otherwise second-degree murder to the crime of murder in the first degree.

3. Appeal and Error -- .

Appellate courts should not reverse a conviction unless the error was prejudicial.

Dissent by D.E. Holbrook, Jr., J.

4. -- Instructions to Jury -- Right to Fair Trial.

The right to a properly instructed jury is fundamental to the right to receive a fair trial.

5. -- Appeal and Error -- Instructions to Jury -- Failure to Object -- ...


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