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03/23/76 PEOPLE v. LUTZKE

March 23, 1976

PEOPLE
v.
LUTZKE



Appeal from Arenac, Carl L. Horn, J.

Leave to appeal applied for.

Quinn, P. J., and J. H. Gillis and Allen, JJ. J. H. Gillis, J., concurred. Allen, J. (dissenting).

SYLLABUS BY THE COURT

Opinion of the Court

1. -- Appeal and Error -- Preliminary Examination.

Alleged error at a preliminary examination will not be considered on appeal where it was not raised prior to or at trial.

2. Homicide -- Murder -- Premeditation.

The actions of a defendant charged with murder, who had returned to a bar with a weapon an hour after he was refused service, could support an inference of premeditation.

3. -- Instructions to Jury -- Defense of Intoxication -- First-Degree Murder -- Assault -- Great Bodily Harm -- Failure to Object.

An alleged failure to instruct the jury on the defense of intoxication to first-degree murder and assault with intent to do great bodily harm less than murder is not grounds for reversal where an instruction on the defense of intoxication to a lesser included charge was given, this instruction applied to all charges when the instructions are read as a whole, and no objection was made.

4. -- Defense of Intoxication -- Capacity Standards -- Cooley Standard -- Instructions to Jury.

An instruction to a jury on the defense of intoxication which contained both the capacity standard (whether the requisite intent could not exist) and the Cooley standard (whether the requisite intent did not exist) is not reversibly erroneous where in the instruction the capacity standard was supplementary to, rather than in conflict with, the Cooley standard and the instruction as a whole properly informed the jury of the effect intoxication should have upon a finding of criminal responsibility.

Dissent by Allen, J.

5. -- Defense of Intoxication -- Specific-Intent Crimes.

An accused may interpose the defense of intoxication where the crime charged requires ...


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