People v. Kelley

Michigan Court of Appeals

People v. Kelley

167 N.W.2d 837, 16 Mich. App. 332, 1969 Mich. App. LEXIS 1383

CourtMichigan Court of Appeals

DecidedFebruary 28, 1969

DocketDocket 5,117

StatusPublished

Cited by1 cases

This text of 167 N.W.2d 837 (People v. Kelley) 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. Kelley, 167 N.W.2d 837, 16 Mich. App. 332, 1969 Mich. App. LEXIS 1383 (Mich. Ct. App. 1969).

Pincite

Opinion

*333 Per Curiam.

Defendant was tried before a jury-on a charge of assault with intent to commit rape, CLS 1961, § 750.85 (Stat Ann 1962 Rev § 28.280), was convicted and sentenced to serve from 5 to 10 years.

The trial court declined to instruct the jury that simple assault and assault and battery are lesser included offenses of the crime charged and that it could find defendant guilty of these crimes. CL 1948, § 768.32 (Stat Ann 1954 Rev § 28.1055) provides for a jury finding of different degrees of the same offense inferior to the one charged in the indictment. Simple assault and assault and battery are lesser, included offenses of the crime of assault with intent to commit rape. People v. Gibbons (1932), 260 Mich 96. The facts alleged and evidence adduced here would support a finding that one of these crimes had been committed. Therefore defendant was entitled to an instruction as to these lesser, included offenses.

This was reversible error and such holding obviates discussion of other alleged errors raised on appeal.

Reversed and remanded for new trial.

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*333 Per Curiam.

Defendant was tried before a jury-on a charge of assault with intent to commit rape, CLS 1961, § 750.85 (Stat Ann 1962 Rev § 28.280), was convicted and sentenced to serve from 5 to 10 years.

The trial court declined to instruct the jury that simple assault and assault and battery are lesser included offenses of the crime charged and that it could find defendant guilty of these crimes. CL 1948, § 768.32 (Stat Ann 1954 Rev § 28.1055) provides for a jury finding of different degrees of the same offense inferior to the one charged in the indictment. Simple assault and assault and battery are lesser, included offenses of the crime of assault with intent to commit rape. People v. Gibbons (1932), 260 Mich 96. The facts alleged and evidence adduced here would support a finding that one of these crimes had been committed. Therefore defendant was entitled to an instruction as to these lesser, included offenses.

This was reversible error and such holding obviates discussion of other alleged errors raised on appeal.

Reversed and remanded for new trial.

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Bluebook (online)

167 N.W.2d 837, 16 Mich. App. 332, 1969 Mich. App. LEXIS 1383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kelley-michctapp-1969.

Opinion

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