People v. Clouse

171 N.W.2d 554, 18 Mich. App. 582, 1969 Mich. App. LEXIS 1114

Opinion

Per Curiam.

Defendant was convicted by a jury of driving while under the influence of intoxicating liquor. 1

On appeal defendant contends that the trial court erred by failing to instruct the jury that the offense of operating a vehicle while one’s ability is visibly impaired 2 is a lesser included offense in driving while under the influence of intoxicating liquor.

Absent a request for an instruction, this Court will not consider a claim of error based on the failure to instruct the jury in regard to a lesser, included offense. People v. Mihalko (1943), 306 Mich 356; People v. Bark (1930), 251 Mich 228; People v. Ivy (1968), 11 Mich App 427. In addition, the requesting party must object to the failure to give the instruction before the jury retires to consider the verdict. GCR 1963, 516.2; People v. Mallory (1966), 2 Mich App 359.

The record contains neither a request for an instruction nor an objection by counsel to the failure to give an instruction. Accordingly, any error implicit in the trial court’s omission was not properly preserved for review.

Affirmed.

1 CLS 1961, § 257.625 (Stat Ann 1968 Rev § 9.2325).

2 CLS 1961, § 257.625b as amended by PA 1966, No 243 (Stat Ann 1968 Rev § 9.2325[2]).