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04/01/76 PEOPLE v. HERBERT SMITH PEOPLE V. HAINES

April 1, 1976

PEOPLE
v.
HERBERT SMITH PEOPLE V. HAINES



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

The opinion of the court was delivered by: Per Curiam

Herbert V. Smith, Jr., was convicted in Recorder's Court of Detroit, Thomas L. Poindexter, J., of unarmed robbery. After his conviction was affirmed by the Court of Appeals (34 Mich App 205 [1971]), defendant filed a delayed motion for new trial in the trial court. The motion was denied and the Court of Appeals, R. B. Burns, P. J., and D. E. Holbrook and T. M. Burns, JJ., denied application for delayed appeal (Docket No. 18758).

Charles M. Haines was convicted in Recorder's Court of Detroit, Samuel C. Gardner, J., of armed robbery. The Court of Appeals, V. J. Brennan, P. J., and McGregor and Walsh, JJ., affirmed in a per curiam opinion (Docket No. 20380).

Defendants apply for leave to appeal to the Supreme Court, asserting error in the failure of the trial court to instruct the jury on lesser included offenses. Held:

In prosecutions other than for first-degree murder, a general request for instructions to the jury on the "lesser included offenses" is not a sufficient request to make failure to instruct reversible error. The trial Judge must rely on requests from counsel in carrying out his responsibility to instruct the jury, and he must receive more assistance than a mere general request.

Affirmed.

The appeals of Herbert Van Smith, Jr., and Charles Haines present the question of what the trial Judge must do when defense counsel merely requests that he instruct on "the lesser included offense".

Smith was convicted of unarmed robbery. His attorney said, "I am asking the court to charge the lesser included offenses", without telling the Judge what offenses he wished the jury instructed upon. The trial Judge instructed the jury on only two possible verdicts, guilty as charged or not guilty. Smith now argues that the trial Judge should have instructed on larceny from the person.

Haines was convicted of armed robbery. His attorney said, "We are requesting that the included offenses, that they be given", also without further elaboration. Haines now argues that the trial Judge erred in not presenting unarmed robbery for the jury's consideration.

A trial Judge must sua sponte instruct on the lesser included offense of second-degree murder in a first-degree murder posecution. People v Jenkins, 395 Mich 440, 442; 236 NW2d 503 (1975). In other prosecutions, *fn1 the failure to instruct on lesser included offenses is not reversible error "absent requests for such instructions before the jury retires to consider its verdict". People v Henry, 395 Mich 367, 374; 236 NW2d 489 (1975). The issue is not preserved, however, by a general request for an instruction on the "lesser included offenses". *fn2 We have recognized that the trial Judge must rely on requests from counsel in carrying out his responsibility to instruct the jury. Henry, supra. He must receive more assistance from counsel than a mere request for an instruction on lesser included offenses to make his failure to so instruct reversible error. *fn3

Defendants did not sufficiently preserve the issue. In lieu of leave to appeal, pursuant to GCR 1963, 853.2(4), we therefore affirm the ...


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