Summary
In Wilson, supra, the Court held that the trial court erred by instructing the jury that voluntary intoxication was not a defense to a charge of felonious assault.
Summary of this case from People v. YarboroughOpinion
Docket No. 49617.
Decided October 8, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Chief Appellate Attorney, for the people.
Nora J. Pasman, Assistant State Appellate Defender, for defendant on appeal.
Defendant was tried by a jury for the offense of assault with intent to rob while being armed, MCL 750.89; MSA 28.284. He was convicted on June 14, 1979, of felonious assault, MCL 750.82; MSA 28.277. Four days later defendant was convicted of being a fourth-time felony offender. He was sentenced to 8-1/2- to 15-year concurrent sentences. Since at the time of said offense defendant was a resident of a resident home program, the court resentenced defendant to a 7-1/2- to 15-year sentence consecutive to the term for which he was then imprisoned, following the prosecutor's motion to correct sentence. Defendant now appeals as of right.
While defendant raises four issues on appeal, only one is worthy of discussion. Defendant claims that felonious assault is a specific intent crime under People v Joeseype Johnson, 407 Mich. 196; 284 N.W.2d 718 (1979), and that said case controls here even though the trial in the instant case occurred prior to the release date of Joeseype Johnson. While defendant's basic defense in the case at bar was that of voluntary intoxication, the trial court instructed the jury that felonious assault was a general intent crime and that voluntary intoxication was not a defense thereto.
While defense counsel did not object, defendant is nevertheless entitled to have the jury instructed on the law applicable to the case. People v Ideis, 101 Mich. App. 179; 300 N.W.2d 489 (1980). Our question hence becomes threefold. First, is felonious assault a specific intent crime under Joeseype Johnson? Second, should Joeseype Johnson be applied to cases tried before its release date? And third, if both of the foregoing are answered affirmatively, was it error for the trial court to instruct the jury that voluntary intoxication was not a defense to the crime of felonious assault? We answer all three in the affirmative and accordingly reverse.
That felonious assault is a specific intent crime is answered in People v McMaster, 105 Mich. App. 162; 306 N.W.2d 434 (1981). We follow the holding in that case. As to whether Joeseype Johnson should be applied retroactively, we believe said case merely reiterated existing law and hence Joeseype Johnson should apply to cases tried before the release date of said opinion. See Ideis, supra, People v Rae, 103 Mich. App. 293; 302 N.W.2d 845 (1981), People v Szymanski, 102 Mich. App. 745; 302 N.W.2d 316 (1981), and McMaster, supra. That the court should have instructed as to voluntary intoxication in a specific intent crime, we follow the holding in People v Crittle, 390 Mich. 367; 212 N.W.2d 196 (1973), or that the court should have clarified its instructions, which here it did not, see McMaster, supra.
We have carefully reviewed appellant's remaining allegations of error and find them to be without merit.
Reversed.