People v. Embree

241 N.W.2d 753, 68 Mich. App. 40, 1976 Mich. App. LEXIS 675

Opinions

Quinn, J.

Defendant was charged with first-degree murder in a two-count information. Count I charged deliberate and premeditated murder; count II charged felony murder. Both offenses are specified in MCLA 750.316; MSA 28.548 as murder in the first degree. The evidence at trial supported both counts. The jury verdict was guilty of first-degree murder. Defendant was sentenced and this appeal followed.

The only issue raised that merits discussion is stated by defendant as follows:

’’Did the trial court’s instructions fail to adequately inform the jury as to their obligation to reach a unanimous verdict?”

This issue was not preserved for appeal, but it has been resolved contrary to defendant’s position, People v Fullwood, 51 Mich App 476, 481; 215 NW2d 594 (1974), lv den, 393 Mich 785 (1975). Furthermore, as stated in People v Sparks, 53 Mich App 452, 458; 220 NW2d 153 (1974), lv den, 393 Mich 135; 224 NW2d 481 (1974):

"Functionally, premeditation and the proof of a felony serve the same purpose, elevating an otherwise second-degree murder to the crime of murder in the first degree.”

Finally, "appellate courts should not reverse a conviction unless the error was prejudicial”, People v Robinson, 386 Mich 551, 562; 194 NW2d 709 (1972). If any error occurred, no prejudice has been shown.

Affirmed.

Danhof, P. J., concurred.