endomorphosis/Caselaw_Access_Project_JSON

1"{\"id\": \"1909879\", \"name\": \"PEOPLE v. HERBERT VAN SMITH, JR.\", \"name_abbreviation\": \"People v. Van Smith\", \"decision_date\": \"1972-10-31\", \"docket_number\": \"No. 2; Docket No. 53,284-1/2\", \"first_page\": \"457\", \"last_page\": \"463\", \"citations\": \"388 Mich. 457\", \"volume\": \"388\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T00:56:13.137781+00:00\", \"provenance\": \"CAP\", \"judges\": \"Swainson, J., concurred with T. G. Kavanagh, J.\", \"parties\": \"PEOPLE v HERBERT VAN SMITH, JR.\", \"head_matter\": \"PEOPLE v HERBERT VAN SMITH, JR.\\nOpinion op the Court\\n1. Criminal Law \\u2014 Instructions\\u2014Lesser Included Offenses.\\nThe law is well established that where a request to instruct the jury has been made the duty of the trial judge is determined by the evidence; if the record contains evidence which would support a conviction of a lesser included offense it is reversible error to refuse to give it.\\n2. Burglary \\u2014 Instructions\\u2014Lesser Included Offenses.\\nA verdict of guilty of the charge of entry without breaking with intent to commit a larceny, or entry without the owner\\u2019s permission, would have been clearly sustainable where defendant was charged with breaking and entering a business place with intent to commit larceny, defendant testified that he entered the building without breaking in order to get his companion to leave and, at the time of defendant\\u2019s apprehension, miscellaneous papers and the plant manager\\u2019s bank book were on his person and hence it was error to refuse defendant\\u2019s request for instructions to that effect (MCLA 750.110, 750.111, 750.115).\\n3. Criminal Law \\u2014 Instructions\\u2014Statutes\\u2014Court Rules.\\nNeither in a statute, a section of The Code of Criminal Procedure, nor the applicable court rule is the time for requests for jury instructions prescribed; the statute simply charges the court with the responsibility of instructing the jury and the court rule provides that written requests should be made at or before the close of evidence, but neither forecloses oral requests nor limits the time for making them (MCLA 768.29; GCR 1963, 516).\\nReferences for Points in Headnotes\\n53 Am Jur, Trial \\u00a7 800.\\n13 Am Jur 2d, Burglary \\u00a7 69.\\n53 Am Jur, Trial \\u00a7 536.\\n53 Am Jur, Trial \\u00a7 827.\\n21 Am Jur 2d, Criminal Law \\u00a7 218.\\n4. Trial \\u2014 Instructions\\u2014Objection\\u2014Preserving Question \\u2014 Court Rules.\\nThat part of the court rule concerning jury instructions which touches objections precludes assigning as error the giving or failing to give an instruction only if the objection is not made before the jury retires to consider its verdict (GCR 1963, 516.2).\\n5. Criminal Law \\u2014 Instructions\\u2014Lesser Included Offenses \\u2014 Objection.\\nFormal objection to failure to give requested instructions on lesser included offenses was not necessary where the request for instructions was made before the jury began its deliberations.\\n6. Criminal Law \\u2014 Lesser Included Offenses \\u2014 Instructions\\u2014 Waiver.\\nThe court\\u2019s obligation to instruct the jury on the applicable law gives rise to a right in the jury to be properly instructed whether requested by counsel or not, and whether or not any request be in writing; when the evidence would support a conviction on lesser included offenses the court\\u2019s failure to instruct thereon can neither be excused nor waived by the parties (MCLA 768.29; GCR 1963, 516).\\nDissenting Opinion\\nT. E. Brennan\\n7. Criminal Law \\u2014 Instructions\\u2014Lesser Included Offenses.\\nA criminal trial is concerned with the rights of the defendant; if the defendant for tactical or other reasons chooses to permit the case to go to the jury on the principal charged offense without mention of lesser included offenses, that, too, is bis right.\\nAppeal from Court of Appeals, Division 1, Lesinski, C. J., and Bronson and Engel, JJ., affirming Recorder\\u2019s Court of Detroit, Joseph A. Gillis, J.\\nSubmitted April 4, 1972.\\n(No. 2\\nApril Term 1972,\\nDocket No. 53,284-1/2.)\\nDecided October 31, 1972.\\n30 Mich App 384 reversed.\\nHerbert Van Smith, Jr., was convicted of break ing and entering a business place with intent to commit larceny. Defendant appealed to the Court of Appeals.\\nAffirmed. Defendant appeals. Reversed and remanded for new trial.\\nFrank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Gerard A. Poehlman, Assistant Prosecuting Attorney, for the people.\\nMartin I. Reisig, Assistant Defender, for defendant on appeal.\", \"word_count\": \"1653\", \"char_count\": \"9876\", \"text\": \"T. G. Kavanagh, J.\\nThe def\\u00e9ndant was convicted by a jury in Detroit's Recorder's Court of breaking and entering a business place with intent to commit larceny.\\n. His appeal to the Court of Appeals and to this Court raises the question of the propriety of the trial court's refusal to instruct the jury on the lesser included offenses of entering without breaking with intent to commit larceny and entering without breaking without permission.\\u00ae\\nIn its opinion affirming the conviction, the Court of Appeals noted the trial court's error in failing to recognize entry without breaking and entry without permission as lesser offenses included in the principal charge, but excused his refusal to instruct on them on the ground that the request was not made before the judge commenced his charge to the jury and hence was not timely.\\nWe hold that such interpretation of GCR 1963, 516 is unwarranted and erroneous and that the requested charge should have been given.\\nThere is no question here, as there was in People v Wynn, 386 Mich 627 (1972), whether there was in fact a request to charge. The following colloquy took place immediately after the court instructed the jury:\\n\\\"The Court:\\n\\\"Now you will retire to the jury room and enter into full discussion of the case. Do not begin your deliberations as there may be further instructions. I'll instruct you when to begin your deliberations.\\n\\\"You may retire to the jury room.\\n\\u2666 # *\\n\\\"The Court: Are the People satisfied with the instructions?\\n\\\"Mr. La Bret [assistant prosecuting attorney]: Yes, your Honor.\\n\\\"Mr. Fink [attorney for defendant]: Your Honor, what about lesser and included offenses involved in this?\\n\\\"The Court: Well, what would there be?\\n\\\"Mr. La Bret: Entering without breaking. Is that an included offense?\\n\\\"The Court: He said he wasn't going to steal anything so there's no lesser offense that I can see.\\n\\\"What lesser offense would there be? He wasn't committing any crime at all according to him.\\n\\\"Mr. Fink: Entering without owner's permission.\\n\\n\\\"The Court: Well, I'll deny it. There was no request prior to this.\\n\\\"Anything else?\\n\\n\\\"The Court: All right. Open the jury room door.\\n\\\"There are no further instructions. You may begin your deliberations.\\\"\\nThis was a request to charge, made before the jury began deliberations, which was denied by the court.\\nThe trial court's responsibility for instructing the jury as contained in MCLA 768.29; MSA 28.1052 is:\\n\\\"The court shall instruct the jury as to the law applicable to the case . The failure of the court to instruct oh any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.\\\"\\nThe law is well established that where a request has been made the duty of the trial judge is determined by the evidence. If the record contains evidence which would support a conviction of a lesser included offense it is reversible error to refuse to give it. People v Jones, 273 Mich 430 (1935).\\nIn the case before us the record contains the defendant's testimony that he entered the building without breaking in order to get his companion to leave. Miscellaneous papers and the plant manager's bank book were on his person at the time of his apprehension.\\nUnder these circumstances a jury verdict of guilty to the charge of entry without breaking with intent to commit a larceny, or entry without the owner's permission would have been clearly sustainable and hence it was error to refuse his request for instruction to that effect.\\nThe Court of Appeals held that the request was not timely made because it was not made before the instruction to the jury was begun.\\nNeither in the statute nor the applicable court rule, GCR 1963, 516 is the time for such request prescribed. The statute, MCLA 768.29 quoted above, simply charges the court with the responsibility for instructing the jury. The court rule provides that written requests should be made at or before the close of evidence, but neither forecloses oral requests nor limits the time for making them.\\nThat part of the rule (516.2) which touches objections, precludes assigning as error the giving or failing to give an instruction only if the objection is not made before the jury retires to consider its verdict. Here the request was made before the jury began its deliberations, and although no formal objection was made we hold it was not necessary. See People v Shirk, 383 Mich 180, 193 (1970).\\nIn People v Wynn, supra, where a majority of this Court found that no request had in fact been made, there was dicta to the effect that a request for instruction had to be in writing under GCR 1963. We now hold that the court's obligation to instruct the jury on the applicable law gives rise to a right in the jury to be properly instructed whether requested by counsel or not, and whether or not any request be in writing. When the evidence would support a conviction on lesser included offenses the court's failure to instruct thereon can neither be excused nor waived by the parties.\\nReversed and remanded for new trial.\\nSwainson, J., concurred with T. G. Kavanagh, J.\\nT. M. Kavanagh, C. J., and Adams and Williams, JJ., concurred in the result.\\nMCLA 750.110; MSA 28.305.\\nMCLA 750.111; MSA 28.306.\\nMCLA 750.115; MSA 28.310.\\n30 Mich App 384 (1971).\"}"