Opinion
Docket No. 3,734.
Decided December 20, 1968. Rehearing denied January 29, 1969. Leave to appeal denied July 8, 1969. See 382 Mich. 768.
Appeal from Recorder's Court of Detroit, Brennan (Vincent J.), J. Submitted Division 1 December 9, 1968, at Detroit. (Docket No. 3,734.) Decided December 20, 1968. Rehearing denied January 29, 1969. Leave to appeal denied July 8, 1969. See 382 Mich. 768.
Darwin Brown was convicted of first-degree murder. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.
George E. Lee, for defendant.
Following a conviction for first-degree murder, CL 1948, § 750.316 (Stat Ann 1954 Rev § 28.548), defendant submitted the present appeal alleging error in the jury instructions. He claims that the trial judge on three occasions misstated requisite elements of first-degree murder as premeditation or deliberation, rather than the proper phraseology of premeditation and deliberation. Defendant is correct; the two elements were incorrectly disjuncted with "or" rather than correctly conjuncted with "and" in three instances within the jury instructions. However, we affirm the conviction for two reasons:
(1) Although adequate opportunity was provided, defendant did not object to the jury instructions as given. Consequently, defendant waived any error committed absent a showing of substantial injustice. GCR 1963, 516.2; CL 1948, § 768.29 (Stat Ann 1954 Rev § 28.1052); People v. Dexter (1967), 6 Mich. App. 247; People v. Cassiday (1966), 4 Mich. App. 215.
(2) The three tongue slips occurred within an expansive set of jury instructions which included a reading of the information that correctly stated the elements of first-degree murder in compliance with state statutes and case law. CL 1948, § 767.45 (Stat Ann 1954 Rev § 28.985); CL 1948, § 767.71 (Stat Ann 1954 Rev § 28.1011); People v. Quicksall (1948), 322 Mich. 351; People v. Roberts (1920), 211 Mich. 187. The jury instructions included correct statements of the two elements, and when read as a whole their emphasis gives the impression that both elements are necessary. People v. Serra (1942), 301 Mich. 124. Therefore, the instructions did not impress the proceedings with substantial injustice.
Affirmed.
McGREGOR, P.J., and FITZGERALD and CYNAR, JJ., concurred.