People v. Thompson

265 N.W.2d 632, 81 Mich. App. 348, 1978 Mich. App. LEXIS 2137

Opinions

M. F. Cavanagh, P. J.

For the reasons stated in People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976), in People v Wright, 80 Mich App 172; 262 NW2d 917 (1977), and in Judge Riley’s dissent in People v Till, 80 Mich App 16; 263 NW2d 586 (1977), we disagree with our brother’s conclusion that reversible error did not result from the trial court’s failure to instruct the jury on the element of malice in the felony-murder charge. We join, however, in his disposition of the other issues raised.

For this reason, we would reverse the first-degree murder conviction and remand to the trial court. Upon remand, as we find no error relating to the armed robbery conviction, we would allow the prosecutor to choose either to have the armed robbery conviction and sentence stand or to have it vacated and to retry the defendant on armed robbery and first-degree murder.

Bronson, J., concurred.