Summary
In Boles, we opined that the trial judge had erred in refusing to give a requested instruction on assault with intent to do great bodily harm less than murder as a lesser included offense of second-degree murder, even though the Court of Appeals had found that the defense theory "conceded that defendant had killed the deceased with a knife."
Summary of this case from People v. BaileyOpinion
No. 70866.
December 14, 1984.
Defendant applied for leave to appeal the judgment of the Court of Appeals which entertained the prosecution's appeal of the order of the Wayne Circuit Court which granted defendant's motion for new trial. The Supreme Court held that the Court of Appeals had no authority to entertain the prosecution's appeal of the trial court's grant of a new trial since the statute governing appeals by and on behalf of the State did not permit such an appeal under the circumstances of the case.
Judgment of the Court of Appeals reversed and Wayne Circuit Court order reinstated.
Criminal Law 1024(7)
Court of Appeals had no authority to entertain prosecution's appeal of trial court's decision to grant a new trial since statute governing appeal by and on behalf of the State did not permit such an appeal under the circumstances of the case. M.C. L.A. § 770.12.
ORDER
On order of the Court, the defendant-appellant's application for leave to appeal having been ordered held in abeyance pending decision in People v. Cooke and People v. Robinson, and said decisions having been issued on September 18, 1984, 419 Mich. 420, 355 N.W.2d 88, 95.
Now, therefore, the application by defendant-appellant for leave to appeal is considered and, pursuant to GCR 853.2(4), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals and REINSTATE the order of the Wayne Circuit Court which granted defendant-appellant's motion for new trial. The Court of Appeals had no authority to entertain the prosecution's appeal of the trial court's decision to grant a new trial since M.C.L. § 770.12; M.S.A. § 28.1109, does not permit such an appeal under the circumstances of this case.