Opinion
Docket No. 9836.
Decided July 28, 1971. Leave to appeal denied, 387 Mich. 788.
Appeal from Recorder's Court for the City of Detroit, Frank G. Schemanske, J. Submitted Division 1 June 16, 1971, at Detrot. (Docket No. 9836.) Decided July 28, 1971. Leave to appeal denied, 387 Mich. 788.
Clifford Bruce was convicted of robbery armed. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Michael R. Mueller, Assistant Prosecuting Attorney, for the people.
Vincent E. Kaye, for defendant on appeal.
Before: T.M. BURNS, P.J., and HOLBROOK and McGREGOR, JJ.
Defendant was convicted of robbery armed, MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797), and sentenced to prison for a period of 7-1/2 years to 20 years.
Defendant first raises the question of whether the fact that the trial court allowed the information to be amended to include the taking of a black leather money clip, on the date of the trial, prejudiced the rights of the defendant to such an extent that he is entitled to a new trial.
The trial court may amend an information so long as it does not change the offense or make a new charge. If the amendment attempts to cure a defect in the statement of the offense charged, and the original statement was sufficient to apprise the defendant and the trial court of the nature of the charge, it is not error to allow amendment. People v. White (1970), 22 Mich. App. 65; People v. Brandon (1969), 16 Mich. App. 601.
MCLA § 767.76 (Stat Ann 1954 Rev § 28.1016).
In the instant case, the defendant's rights were not prejudiced since the amendment only added the money clip as an item taken and did not change the offense nor charge a new offense. The original information charged the defendant with taking $50 in money, being armed. Furthermore, at the preliminary examination, the complaining witness testified that a money clip as well as the $50 was taken from him.
We conclude that defendant's rights were not prejudiced and the trial court did not err in allowing the amendment.
Although defendant alleges that the verdict was against the great weight of the evidence, the issue is improperly phrased, since defendant's argument concerns the sufficiency of the evidence presented by the plaintiff. See People v. Jagosz (1931), 253 Mich. 290; People v. Mattison (1970), 26 Mich. App. 453; People v. Paintman (1970), 28 Mich. App. 590.
The prosecutor introduced testimony that the defendant stole a black money clip and approximately $50 in cash from the complaining witness, at knifepoint. The defendant was identified at trial by the complaining witness. We conclude that there was sufficient evidence adduced at trial which, if believed by the jury, would sustain a verdict of guilty beyond a reasonable doubt.
Defendant also contends that the trial court erred reversibly by failing to include the lesser included offense of robbery unarmed in its charge to the jury. We disagree.
In Michigan, the general rule for lesser included offenses is:
"that, in the absence of request to charge, the court does not err in failing to instruct upon the included offenses." People v. Lemmons (1970), 384 Mich. 1, 3.
No request to charge this lesser included offense was made. People v. Jones (1935), 273 Mich. 430; People v. Allie (1921), 216 Mich. 133; People v. Collins (1921), 216 Mich. 541.
The other alleged errors raised by the defendant are without merit.
Affirmed.