The Court of Appeals affirmed, basing its decision on that Court's holding in People v Harper, 32 Mich. App. 73 (1971) and quoting from one of the opinions in that case which it mistakenly characterized as the majority opinion. 20 Mich. App. 309 (1969). 38 Mich. App. 99 (1972).
On the prosecution's confession of error, this Court vacated the plea and remanded. People v. McMiller (1969), 20 Mich. App. 309. Defendant was then tried on the open count of murder, was convicted of murder in the second degree, and was sentenced to a term of from 15 to 20 years in prison.