Opinion
Docket No. 24149.
Decided March 1, 1977.
Appeal from Kent, Stuart Hoffius, J. Submitted February 1, 1977, at Grand Rapids. (Docket No. 24149.) Decided March 1, 1977.
Gary B. Shears was convicted of assault with intent to do great bodily harm less than murder. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harold S. Sawyer, Prosecuting Attorney, for the people.
Loeks, Buth, Wood Weidaw, for defendant on appeal.
Before: D.F. WALSH, P.J., and QUINN and BASHARA, JJ.
A jury convicted defendant of assault to do great bodily harm less than the crime of murder, MCLA 750.84; MSA 28.279. Following sentence, he appeals on one issue:
"Whether the trial court committed reversible error by instructing the jury that they could not consider lesser included offenses until finding defendant not guilty of the charged offense?"
Defendant's argument in support of his affirmative position on this issue stems from People v Ray, 43 Mich. App. 45, 50; 204 N.W.2d 38 (1972), where this Court said:
"* * *, the requirement of unanimous agreement on defendant's innocence of the greater charge before discussion of the lesser charges is permitted is coercive, unduly restrictive and reversible."
However, we find Ray inapplicable to the instruction attacked here. It contained no "unanimous agreement" requirement before proceeding to consideration of lesser offenses. We recognize that People v Harmon, 54 Mich. App. 393; 221 N.W.2d 176 (1974), supports defendant, but we prefer the more restrictive rule of Ray, supra. We note that defendant concedes that the language quoted from People v Hurst, 396 Mich. 1, 10; 238 N.W.2d 6 (1976), and relied on by him is dicta. We decline to follow it.
Affirmed.