People v. Bell

172 N.W.2d 711, 19 Mich. App. 257, 1969 Mich. App. LEXIS 942

Opinions

R. B. Burns, J.

This case was previously reported in 14 Mich App 80. Defendant’s delayed application for leave to appeal to the Supreme Court was considered by that Court and the case was remanded to the Court of Appeals “for reconsideration of the decision of that Court in 14 Mich App 80, of an issue not raised or discussed by the parties or by the Court of Appeals as to whether any proper objection was made by defense counsel to the claimed erroneous jury instruction and whether such an objection was necessary to save such issue for appellate review.”* ¹

At the conclusion of the instructions in the trial court counsel was asked, “Now, gentlemen, is there anything further?” Both counsel replied, “No, your Honor.”

GCR 516.2 states:

“Objections. No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires.”

The general rule in Michigan is to the effect that an appellate court will not consider issues not objected to or raised in the trial court. Defendant did not raise a proper objection to the claimed erroneous jury instruction. However, there is a line of cases starting with People v. Murray (1888), 72 Mich 10, through Hunt v. Deming (1965), 375 Mich 581, which have held that an appellate court may in its discretion consider issues not objected to in the trial court to prevent manifest injustice. The panel assigned to this case was not in unanimous agreement as to the effect of the alleged erroneous instruction. Therefore, it exercised its discretion and considered the issue on its merits.

We have reviewed our decision in 14 Mich App 80, and are of the opinion that we did not abuse our discretion but considered the case on its merits.

Dalton, J., concurred.

1 People v. Bell (1969), 382 Mich 751.