People
v.
Herbert Smith

Supreme Court of MichiganApr 1, 1976
396 Mich. 362 (Mich. 1976)
396 Mich. 362240 N.W.2d 245

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Docket Nos. 55835, 57238.

Decided April 1, 1976. Rehearing denied as to Haines 396 Mich. 991.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training Appeals, and Gerard A. Poehlman and Ronald P. Weitzman, Assistants Prosecuting Attorney, for the people.

Herbert V. Smith, Jr., in propria persona. Carl Ziemba for defendant Haines.


The appeals of Herbert Van Smith, Jr., and Charles Haines present the question of what the trial judge must do when defense counsel merely requests that he instruct on "the lesser included offense".

Smith was convicted of unarmed robbery. His attorney said, "I am asking the court to charge the lesser included offenses", without telling the judge what offenses he wished the jury instructed upon. The trial judge instructed the jury on only two possible verdicts, guilty as charged or not guilty. Smith now argues that the trial judge should have instructed on larceny from the person.

Haines was convicted of armed robbery. His attorney said, "We are requesting that the included offenses, that they be given", also without further elaboration. Haines now argues that the trial judge erred in not presenting unarmed robbery for the jury's consideration.

A trial judge must sua sponte instruct on the lesser included offense of second-degree murder in a first-degree murder prosecution. People v Jenkins, 395 Mich. 440, 442; 236 N.W.2d 503 (1975). In other prosecutions, the failure to instruct on lesser included offenses is not reversible error "absent requests for such instructions before the jury retires to consider its verdict". People v Henry, 395 Mich. 367, 374; 236 N.W.2d 489 (1975). The issue is not preserved, however, by a general request for an instruction on the "lesser included offenses". We have recognized that the trial judge must rely on requests from counsel in carrying out his responsibility to instruct the jury. Henry, supra. He must receive more assistance from counsel than a mere request for an instruction on lesser included offenses to make his failure to so instruct reversible error.

In a case we held in abeyance for Jenkins, supra, however, defendant was charged with first-degree murder and his counsel requested instruction on "the lesser offenses". We concluded that this was sufficient to require an instruction on second-degree murder and entered an order reducing the degree of the conviction to second-degree while reserving to the prosecutor, as in Jenkins, a right to move before resentencing for a new trial on first-degree murder. People v Aaron, 396 Mich. 843 (1976).

See, e.g., People v Ora Jones, 395 Mich. 379, 393; 236 N.W.2d 461 (1975): "Had the judge not instructed at all on manslaughter, there would be no reversible error, because no request for instruction on manslaughter was made." (Emphasis added.)

In People v Lovett, 396 Mich. 101; 238 N.W.2d 44 (1976), for example, we reversed the defendant's conviction where defense counsel specifically requested an instruction on the lesser included offense of attempted armed robbery, and the request was denied.

Defendants did not sufficiently preserve the issue. In lieu of leave to appeal, pursuant to GCR 1963, 853.2(4), we therefore affirm the judgments of the Court of Appeals.

KAVANAGH, C.J., and WILLIAMS, LEVIN, COLEMAN, FITZGERALD, and LINDEMER, JJ., concurred.

RYAN, J., took no part in the decision of this case.