Opinion
No. 104017.
August 2, 1996
Leave to Appeal Denied August 2, 1996:
Court of Appeals No. 165056.
We would remand to the Court of Appeals for reconsideration in light of People v Bailey, 451 Mich. 657 (1996).
I would remand to the Court of Appeals for reconsideration in light of this Court's decision in People v Bailey, 451 Mich. 657 (1996).
I
The defendant was convicted as an aider and abetter of first-degree felony murder. The underlying felony was breaking and entering a dwelling with "intent to commit any felony." The judge instructed the jury that the prosecutor contended that the underlying "any felony" was one of three assaults: assault with intent to commit murder, or assault with intent to do great bodily harm less than murder, or assault with a dangerous weapon. The judge instructed on the elements of those offenses.
In Bailey, the majority held that, because the victim died, defendant Bailey was not entitled to an instruction on assault with intent to do great bodily harm less than murder. The same logic that underlies Bailey would mean that, where the victim dies, assault with intent to commit murder should not be given.
Thus, since the victim died, the judge misinstructed the jury in the instant case that it could find that the defendant committed the felony of assault with intent to commit murder or to do great bodily harm less than murder.
II
The Court of Appeals, responding to defendant's assertion that the "underlying crime of breaking and entering was not established," said that the evidence was sufficient to show that the defendant "broke and entered the apartment with felonious intent." But having a felonious intent is not a felony or "any felony" within the meaning of the statute.
While there was sufficient evidence to justify a conviction for felonious assault, the jury was not instructed thereon.
Since the judge misinstructed the jury that the defendant could be found guilty of felony murder on the basis of either of two assaults with which, under Bailey, he could not be charged or convicted of, this case should be remanded to the Court of Appeals for reconsideration in light of Bailey, or the degree of defendant's conviction should be reduced to second-degree murder and the case remanded for resentencing.