Opinion
Docket No. 15592.
Decided December 10, 1975. Leave to appeal applied for.
Appeal from St. Joseph, Chester J. Byrns, J. Submitted December 4, 1975, at Grand Rapids. (Docket No. 15592.) Decided December 10, 1975. Leave to appeal applied for.
Donald L. Ringler was convicted of breaking and entering an occupied dwelling with intent to commit larceny. Defendant appealed. The people's motion to affirm granted. Defendant appealed to the Supreme Court. Remanded to the Court of Appeals for full consideration of the appeal, 394 Mich. 775 (1975). On remand, affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James Noecker, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Edward R. Wilson, Director, and Lee W. Atkinson, Special Assistant Attorney General, of counsel), for the people.
John B. Phelps, Assistant State Appellate Defender, for defendant.
Before: DANHOF, P.J., and QUINN and D.E. HOLBROOK, JR., JJ.
Defendant appeals his jury conviction and subsequent sentence for breaking and entering an occupied dwelling with intent to commit larceny, MCLA 750.110; MSA 28.305. Originally, another panel of this Court disposed of the appeal by granting the people's motion to affirm. By order dated May 21, 1975, the Supreme Court remanded to this Court and stated, "for full consideration of the appeal, including, at a minimum, discussion of Issues I and II of defendant-appellant's application in this Court". (See 394 Mich. 775.)
We have again reviewed the record and have again considered defendant's asserted errors. Except for the mandate of the foregoing order from the Supreme Court, we would again affirm without further comment. There is no reversible error in this record and the case presents nothing of jurisprudential value.
1. Defendant's claim of error on the aiding and abetting instruction is controlled by People v Lamson, 44 Mich. App. 447; 205 N.W.2d 189 (1973).
2. While we have serious doubts that the intoxication instruction offends People v Crittle, 390 Mich. 367; 212 N.W.2d 196 (1973), when considered with the entire instruction, Crittle is not applicable. Defendant was tried in 1972, see People v Engle, 61 Mich. App. 628; 233 N.W.2d 116 (1975).
3. Repetition of the intoxication instruction was not necessary nor was it reversible error not to repeat it, People v Scott, 55 Mich. App. 739; 223 N.W.2d 330 (1974).
We hope the foregoing three issues cover issues I and II that defendant presented to the Supreme Court, because remaining issues IV and V present no error and nothing to comment on.
Affirmed.
D.E. HOLBROOK, JR., J., concurred.
This case was remanded to this Court by the Supreme Court for consideration of issue II, which involves the trial court's instruction to the jury on the intoxication defense. A review of the record and the evidence presented therein indicates the intoxication defense was properly before the trial court. However, the trial court committed reversible error by instructing the jury on the capacity standard in violation of People v Crittle, 390 Mich. 367; 212 N.W.2d 196 (1973). As the defendant's conviction was not yet final as of the decisional date in Crittle, the defendant is entitled to the benefit of Crittle. People v Chambers #2, 64 Mich. App. 386; 236 N.W.2d 703 (1975). Therefore, I would reverse and remand for a new trial.