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People v. Lovett

Supreme Court of Michigan
Jan 29, 1976
396 Mich. 101 (Mich. 1976)

Summary

In People v Lovett, 396 Mich. 101; 238 N.W.2d 44 (1976), we held in a per curiam opinion that it was reversible error for the trial judge to refuse to instruct on the lesser included offense of attempt, when the evidence showed the completed offense.

Summary of this case from People v. Shafou

Opinion

Docket No. 57413.

Decided January 29, 1976. Rehearing denied 396 Mich. 976.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training Appeals, and Raymond P. Walsh, Assistant Prosecuting Attorney, for the people.

M. Arthur Arduin (Carl Ziemba, of counsel) for defendant.


Defendant's conviction must be reversed because the trial judge failed to instruct on the lesser included offense of attempted armed robbery despite defense counsel's request. People v Henry, 395 Mich. 367, 370; 236 N.W.2d 489 (1975); People v Ora Jones, 395 Mich. 379, 390; 236 N.W.2d 461 (1975).

Defendant was charged with armed robbery. The trial judge instructed on the lesser included offenses of unarmed robbery and larceny from the person. She denied defense counsel's request for an instruction on attempted armed robbery because she found "no evidence" to support that verdict. The jury convicted the defendant of larceny from the person. The Court of Appeals affirmed the failure to instruct on the lesser included offense of attempted armed robbery because "[t]here was no evidence of anything but a complete crime". 63 Mich. App. 656, 665; 234 N.W.2d 749 (1975).

In Jones, supra, we said: "If the lesser offense is one that is necessarily included within the greater, the evidence will always support the lesser if it supports the greater." 395 Mich. 390. Attempted armed robbery is "necessarily included" within the offense of armed robbery. People v Bradovich, 305 Mich. 329, 332; 9 N.W.2d 560 (1943). The jury may have found the defendant guilty of the attempt although the evidence showed a completed offense. MCLA 768.32; MSA 28.1055. People v Baxter, 245 Mich. 229, 232; 222 N.W. 149 (1928).

In lieu of leave to appeal, we reverse defendant's conviction and remand the cause to Recorder's Court for a new trial. GCR 1963, 853.2(4).

KAVANAGH, C.J., and WILLIAMS, LEVIN, COLEMAN, FITZGERALD, LINDEMER, and RYAN, JJ., concurred.


Summaries of

People v. Lovett

Supreme Court of Michigan
Jan 29, 1976
396 Mich. 101 (Mich. 1976)

In People v Lovett, 396 Mich. 101; 238 N.W.2d 44 (1976), we held in a per curiam opinion that it was reversible error for the trial judge to refuse to instruct on the lesser included offense of attempt, when the evidence showed the completed offense.

Summary of this case from People v. Shafou

In People v Lovett, 396 Mich. 101; 238 N.W.2d 44 (1976), without discussing the retroactivity issue, we found Jones/Chamblis error and reversed a conviction entered prior to our decision in Jones and Chamblis.

Summary of this case from People v. Kamin

In People v Lovett, 396 Mich. 101; 238 N.W.2d 44 (1976), for example, we reversed the defendant's conviction where defense counsel specifically requested an instruction on the lesser included offense of attempted armed robbery, and the request was denied.

Summary of this case from People v. Herbert Smith

In Lovett, without acknowledging that it was applying Ora Jones, supra, retroactively, the Supreme Court did just that, People v Harrison, 71 Mich. App. 226, 228; 247 N.W.2d 360 (1976), and reversed a conviction because the trial judge refused defense counsel's request to charge the jury on attempted armed robbery.

Summary of this case from People v. Clemons

In People v Lovett, 396 Mich. 101; 238 N.W.2d 44 (1976), the Supreme Court reversed a conviction for larceny from the person because the trial court refused to give a requested instruction on attempted armed robbery, an offense necessarily included in the charge of armed robbery.

Summary of this case from People v. Page

In People v Lovett, 396 Mich. 101, 102; 238 N.W.2d 44 (1976), the Supreme Court applied the rule of Ora Jones in reversing a 1974 conviction in which the trial court refused a similar request by the defendant.

Summary of this case from People v. Charles Jackson

In Lovett the Supreme Court reversed a conviction because the trial judge failed to instruct on the lesser included offense of attempted armed robbery despite defense counsel's request.

Summary of this case from People v. Harrison
Case details for

People v. Lovett

Case Details

Full title:PEOPLE v LOVETT

Court:Supreme Court of Michigan

Date published: Jan 29, 1976

Citations

396 Mich. 101 (Mich. 1976)
238 N.W.2d 44

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