Opinion
Docket No. 11005.
Decided January 20, 1972.
Appeal from Montcalm, Leo B. Bebeau, J. Submitted Division 3 December 7, 1971, at Grand Rapids. (Docket No. 11005.) Decided January 20, 1972.
Danny Lee Rohn was convicted of breaking and entering with intent to commit larceny. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, C. Homer Miel, Prosecuting Attorney, and Charles H. Miel, Assistant Prosecuting Attorney, for the people.
G.R. Pete Frye, for defendant on appeal.
Before: R.B. BURNS, P.J., and FITZGERALD and V.J. BRENNAN, JJ.
Defendant was convicted of breaking and entering with intent to commit larceny. MCLA 750.110; MSA 28.305.
Defendant requested the trial court to instruct the jury on the lesser included offense of entering without permission. MCLA 750.115; MSA 28.310. The trial court denied the request and the defendant appeals. However, the trial court gave instructions on the following included offenses: entering without breaking — MCLA 750.111; MSA 28.306, and larceny — MCLA 750.360; MSA 28.592.
In People v. Stevens, 9 Mich. App. 531 (1968), Justice T.G. KAVANAGH, then a member of this Court, stated on pages 533-534:
"These first two assertions of error indicate confusion about the duty of the trial judge to instruct. Where a request has been made to charge on a lesser included offense, the duty of the trial judge is determined by the evidence.
"If evidence has been presented to support a conviction of the lesser offense, the requested instructions must be given; failure to do so would constitute error. People v. Jones (1935), 273 Mich. 430. If, on the other hand, no evidence has been presented to support a conviction of the lesser offense, then the requested instruction should be refused. People v. Utter (1921), 217 Mich. 74; People v. Hearn (1958), 354 Mich. 468."
In the present case there was no evidence introduced to support the defendant's requested charge.
Defendant also claims the trial judge admitted prejudicial hearsay testimony by a detective. The detective was testifying as to what he had said. Such testimony does not constitute hearsay since its value did not depend on the credibility of an out-of-court asserter. McCormick, Evidence, § 225, pp 459, 460.
Affirmed.
All concurred.