Summary
In People v Lovett, 396 Mich. 101; 238 N.W.2d 44 (1976), we held in a per curiam opinion that it was reversible error for the trial judge to refuse to instruct on the lesser included offense of attempt, when the evidence showed the completed offense.
Summary of this case from People v. ShafouOpinion
Docket No. 57413.
Decided January 29, 1976. Rehearing denied 396 Mich. 976.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training Appeals, and Raymond P. Walsh, Assistant Prosecuting Attorney, for the people.
M. Arthur Arduin (Carl Ziemba, of counsel) for defendant.
Defendant's conviction must be reversed because the trial judge failed to instruct on the lesser included offense of attempted armed robbery despite defense counsel's request. People v Henry, 395 Mich. 367, 370; 236 N.W.2d 489 (1975); People v Ora Jones, 395 Mich. 379, 390; 236 N.W.2d 461 (1975).
Defendant was charged with armed robbery. The trial judge instructed on the lesser included offenses of unarmed robbery and larceny from the person. She denied defense counsel's request for an instruction on attempted armed robbery because she found "no evidence" to support that verdict. The jury convicted the defendant of larceny from the person. The Court of Appeals affirmed the failure to instruct on the lesser included offense of attempted armed robbery because "[t]here was no evidence of anything but a complete crime". 63 Mich. App. 656, 665; 234 N.W.2d 749 (1975).
In Jones, supra, we said: "If the lesser offense is one that is necessarily included within the greater, the evidence will always support the lesser if it supports the greater." 395 Mich. 390. Attempted armed robbery is "necessarily included" within the offense of armed robbery. People v Bradovich, 305 Mich. 329, 332; 9 N.W.2d 560 (1943). The jury may have found the defendant guilty of the attempt although the evidence showed a completed offense. MCLA 768.32; MSA 28.1055. People v Baxter, 245 Mich. 229, 232; 222 N.W. 149 (1928).
In lieu of leave to appeal, we reverse defendant's conviction and remand the cause to Recorder's Court for a new trial. GCR 1963, 853.2(4).
KAVANAGH, C.J., and WILLIAMS, LEVIN, COLEMAN, FITZGERALD, LINDEMER, and RYAN, JJ., concurred.