The opinion
Lesinski, C. J.
{dissenting). I am unable to concur with the reasoning advanced in the majority opinion.
The majority holds the purpose of MCLA § 768.32 (Stat Ann 1954 Rev § 28.1055), is to give the criminally accused such notice as would satisfy due process of law that he may be convicted of lesser included offenses without the necessity of notice of such crime in the information. Whether or not the majority has accurately ascertained the legislative intent behind the statute, circa 1846, our Supreme Court authoritatively stated the statute gives defendants the right to have the jury instructed on lesser offenses. People v. Allie (1921), 216 Mich 133 .
Lesser included offenses, by definition, are committed when the greater offense is completed. People v. Allie. So, too, every completed offense must include a successful attempt to commit the crime. People v. Bradovich (1943), 305 Mich 329 . It is not *234 consistent with these cases to announce that no evidence is presented to support a guilty verdict of some lesser offense merely because the additional elements of the greater offense have been shown.
It has been held that “affirmative exclusion” of lesser offenses from the consideration of the jury is reversible error. People v. Jones (1935), 273 Mich 430 ; People v. Guillett (1955), 342 Mich 1 ; People v. Lemmons (1970), 384 Mich 1 . The reasoning of these cases seems to be that in the event a jury disbelieves a defendant’s alibi defense, it still can find that the prosecution failed to prove every element of the crime charged and return a verdict of guilty of some lesser offense. If that reasoning is sound, then the rule preventing affirmative exclusion of lesser offenses from jury consideration should be expanded to encompass cases where instructions are requested but the trial judge remains silent on included offenses without express limitation of possible verdicts.
Whether or not the trial judge’s instructions in the instant case amount to an affirmative exclusion of lesser offenses, it is clear that the jury was prevented from returning such a verdict. Unless a lay jury is apprised of the fact that it can find lesser degrees of guilt, it is effectively prevented from so finding. The presence of an affirmative exclusion, of the type found in Lemmons , thus becomes irrelevant. Since I do not read Lemmons, Guillett and Jones to forbid only the express statement “there are no included offenses” relative to requested jury instructions, I submit that it was error to deny the requested instruction in the case at bar.
I vote to reverse and remand to the trial court.