Summary
In People v Ideis, 101 Mich. App. 179; 300 N.W.2d 489 (1980), and People v Braddock, 106 Mich. App. 11; ___ N.W.2d ___ (1980), the issue of specific intent was not raised in the trial court.
Summary of this case from People v. SlagerOpinion
Docket No. 46076.
Decided October 24, 1980. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Nels L. Olson, Assistant Prosecuting Attorney, for the people.
Richard R. Nelson, for defendant on appeal.
Before: BASHARA, P.J., and N.J. KAUFMAN and R.M. MAHER, JJ.
The defendant, Jamel Mohammad Ideis, was charged with assault with intent to do great bodily harm less than murder in violation of MCL 750.84; MSA 28.279, and possession of a firearm in the commission of a felony in violation of MCL 750.227b; MSA 28.424(2). On June 11, 1979, the defendant pled guilty to the lesser included offense of felonious assault and the felony-firearm charge was dismissed. On June 26, 1979, the prosecutor asked that the trial court reinstate the felony-firearm charge in light of the Supreme Court decision declaring the felony-firearm statute constitutional. The trial court reinstated the charge and the defendant withdrew his guilty plea. On July 2, 1979, the defendant went to trial in Recorder's Court. On July 3, 1979, the defendant was convicted by a jury of the lesser included offense of felonious assault and of the felony-firearm offense. On July 3, 1979, the defendant received a suspended sentence for the felonious assault conviction and the mandatory 2 years for the felony-firearm conviction. The defendant appeals as a matter of right.
The defendant raises several issues on appeal, one of which requires reversal. The defendant contends that the court erred by failing to give a proper instruction on intent when instructing on the lesser included offense of felonious assault. We agree.
The trial court gave CJI 17:4:01, the recommended jury instruction on felonious assault. CJI 17:4:01 states:
"(1) The defendant is charged with felonious assault. Any person who shall assault another with a [gun/revolver/pistol/knife/iron bar/club/brass knuckles/dangerous weapon] but without intending to commit the crime of murder and without intending to inflict great bodily harm less than murder is guilty of this charge.
"(2) The defendant pleads not guilty to this charge. To establish this charge the prosecution must prove each of the following elements beyond a reasonable doubt:
"(3) First, that the defendant assaulted [name complainant]. An assault is an attempt or threat, with force and violence, to do immediate bodily harm to another by one who has the present means of doing such harm.
"(4) Second, that the defendant committed such assault by the use of a dangerous weapon, that is, as alleged in this case, a [gun/revolver/pistol/knife/iron bar/club/brass knuckles/ (state other dangerous weapon)]."
The trial court also gave CJI 17:4:07, which states:
"The statute in question here forbids the purposeful pointing of a gun [revolver/pistol] at another in a threatening manner."
We realize that at the time of trial the trial judge did not have the benefit of the Supreme Court's decision in People v Joeseype Johnson, 407 Mich. 196; 284 N.W.2d 718 (1979). In that case, the trial court refused the defendant's request to instruct the jury that the crime of felonious assault includes the specific intent to inflict an injury on another and instead instructed the jury that a felonious assault must be an "intentional assault". On appeal, the Supreme Court stated that the trial court's instruction constituted reversible error in that it failed to adequately inform the jury of the intent requirement. The Court held that the jury should have been instructed that there must be either an intent to injure or an intent to put the victim in reasonable fear or apprehension of a battery. People v Joeseype Johnson, supra, 210. In the case at bar, the instruction given by the trial court was incorrect under Joeseype Johnson. Because the Court in Joeseype Johnson did not announce a new rule but merely clarified existing law, the holding applies to the instant case and defendant is entitled to reversal.
We recognize that defendant did not request this instruction. We are not, however, precluded from considering this claim of error on appeal. The trial court is required to charge the jury concerning the law applicable to the case. People v Liggett, 378 Mich. 706, 714; 148 N.W.2d 784 (1967), People v Oberstaedt, 372 Mich. 521, 526; 127 N.W.2d 354 (1964), People v Lewis, 91 Mich. App. 542; 283 N.W.2d 790 (1979). The defendant's defense at trial was that the shooting was accidental so that the improper instruction went to a controlling issue.
Reversed and remanded for a new trial.
I respectfully dissent. The majority holds that People v Joeseype Johnson, 407 Mich. 196; 284 N.W.2d 718 (1979), is to be applied retroactively.
I rely on the case of People v Starghill, 99 Mich. App. 790; 298 N.W.2d 641 (1980), and the cases cited therein, particularly, People v Burk, 238 Mich. 485, 489; 213 N.W. 717 (1927), and People v Hampton, 384 Mich. 669, 674; 187 N.W.2d 404 (1971), for the holding that Johnson, supra, should not be applied retroactively.
Accordingly, I would affirm the conviction.