People v. Busby

Michigan Court of Appeals

People v. Busby

191 N.W.2d 70, 34 Mich. App. 235, 1971 Mich. App. LEXIS 1599

CourtMichigan Court of Appeals

DecidedJune 21, 1971

DocketDocket 9622

StatusPublished

Cited by8 cases

This text of 191 N.W.2d 70 (People v. Busby) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Busby, 191 N.W.2d 70, 34 Mich. App. 235, 1971 Mich. App. LEXIS 1599 (Mich. Ct. App. 1971).

Pincite

Opinions

Y. J. Brennan, J.

Defendant was convicted by a jury of breaking and entering with intent to commit larceny¹ and sentenced to two years’ probation. [237]*237The only disputed fact at the trial was whether or not the defendant was the man who committed the crime.

On appeal defendant raises two issues concerning the court’s charge to the jury, neither of which requires reversal.

The trial court instructed the jury that “there are only two possible verdicts, a verdict of not guilty or a verdict of guilty”. Subsequent to the instructions the following colloquy occurred:

“[The Court]: Is there anything you want me to add?

“[Mr. Alter]: If the Court please, perhaps I should have submitted a requested charge of included offenses.

“[The Court]: There won’t be any included offenses, but I’ll talk to you later about that. Is there anything else?

“[Mr. Boak]: The people are satisfied with the charge.

“[The Court] : Members of the jury, if you will follow my clerk to the juryroom, you can begin your deliberations and later I will have the sheriff substituted for the clerk, so he can be in charge of you.

(Whereupon the jury was taken to the juryroom at 3:50 p. m.).

“[The Court]: If there are any additions or corrections to the charge, I will take them in chambers. There are no objections to the jury charge on the record.” (Emphasis supplied.)

Defendant now maintains that the court was under a duty to charge on attempted² breaking and entering.

Preliminarily we note that the evidence presented at trial did not support a finding of guilt as to any lesser offenses. Thus, if we assume for the sake of [238]*238argument that defense counsel’s statement to the court was a sufficient request, it was properly refused on the ground that there was no basis for such a charge. See People v. Stevens (1968), 9 Mich App 531; People v. Sweet (1970), 25 Mich App 95. If, on the other hand, we assume that there was no request to charge, the court’s charge to the jury that there were only two possible verdicts is not violative of the rule in People v. Lemmons (1970), 384 Mich 1, because there was no affirmative instruction to the jury excluding lesser offenses. The court’s statement that there would not be any included offenses was not part of his charge and was directed to defense counsel, not to the jury. See People v. Membres (1971), 34 Mich App 224, where we discuss more extensively the application of Lemmons. We find no error.

Defendant’s second contention is that the court erred in instructing the jury on the weight to be given to the testimony of witnesses. Not only does this contention lack substantive merit, but any error that might have occurred was waived by defendant’s failure to object. GCR 1963, 516.2; People v. Wright (1970), 23 Mich App 330.

For the foregoing reasons, defendant’s conviction is affirmed.

Affirmed.

Danhof, J., concurred.

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Y. J. Brennan, J.

Defendant was convicted by a jury of breaking and entering with intent to commit larceny¹ and sentenced to two years’ probation. [237]*237The only disputed fact at the trial was whether or not the defendant was the man who committed the crime.

On appeal defendant raises two issues concerning the court’s charge to the jury, neither of which requires reversal.

The trial court instructed the jury that “there are only two possible verdicts, a verdict of not guilty or a verdict of guilty”. Subsequent to the instructions the following colloquy occurred:

“[The Court]: Is there anything you want me to add?

“[Mr. Alter]: If the Court please, perhaps I should have submitted a requested charge of included offenses.

“[The Court]: There won’t be any included offenses, but I’ll talk to you later about that. Is there anything else?

“[Mr. Boak]: The people are satisfied with the charge.

“[The Court] : Members of the jury, if you will follow my clerk to the juryroom, you can begin your deliberations and later I will have the sheriff substituted for the clerk, so he can be in charge of you.

(Whereupon the jury was taken to the juryroom at 3:50 p. m.).

“[The Court]: If there are any additions or corrections to the charge, I will take them in chambers. There are no objections to the jury charge on the record.” (Emphasis supplied.)

Defendant now maintains that the court was under a duty to charge on attempted² breaking and entering.

Preliminarily we note that the evidence presented at trial did not support a finding of guilt as to any lesser offenses. Thus, if we assume for the sake of [238]*238argument that defense counsel’s statement to the court was a sufficient request, it was properly refused on the ground that there was no basis for such a charge. See People v. Stevens (1968), 9 Mich App 531; People v. Sweet (1970), 25 Mich App 95. If, on the other hand, we assume that there was no request to charge, the court’s charge to the jury that there were only two possible verdicts is not violative of the rule in People v. Lemmons (1970), 384 Mich 1, because there was no affirmative instruction to the jury excluding lesser offenses. The court’s statement that there would not be any included offenses was not part of his charge and was directed to defense counsel, not to the jury. See People v. Membres (1971), 34 Mich App 224, where we discuss more extensively the application of Lemmons. We find no error.

Defendant’s second contention is that the court erred in instructing the jury on the weight to be given to the testimony of witnesses. Not only does this contention lack substantive merit, but any error that might have occurred was waived by defendant’s failure to object. GCR 1963, 516.2; People v. Wright (1970), 23 Mich App 330.

For the foregoing reasons, defendant’s conviction is affirmed.

Affirmed.

Danhof, J., concurred.

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Bluebook (online)

191 N.W.2d 70, 34 Mich. App. 235, 1971 Mich. App. LEXIS 1599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-busby-michctapp-1971.

Opinions

Y. J. Brennan, J.

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