holding that there was sufficient evidence that the victim received a serious or aggravated injury where there was testimony that the victim was rendered unconscious by the blow to the head, hit his head on concrete, suffered cuts on his face, incurred an eye injury, and had a bruised neck, even though the victim did not seek medical attention until the following evening
How later courts described this case
- holding that there was sufficient evidence that the victim received a serious or aggravated injury where there was testimony that the victim was rendered unconscious by the blow to the head, hit his head on concrete, suffered cuts on his face, incurred an eye injury, and had a bruised neck, even though the victim did not seek medical attention until the following evening
- although the complainant did not seek immediate medical attention, the evidence was sufficient to prove a serious injury where the complainant suffered facial cuts, an eye injury, and a bruised neck
Written by the judges who cited it.
The opinion
M. J. Kelly, P.J.,
(concurring). I will concur in the result reached by the majority because I too am convinced from all the evidence that no manifest injustice resulted.
We have searched the record to determine the context in which the trial court agreed to instruct the jury on aggravated assault. We were at first incredulous that an apparent Chamblis violation could occur more than 2-1/2 years after the Supreme Court established the rule that: "In any case wherein the charged offense is punishable by incarceration for more than two years, the court, *615 whether or not requested, may not instruct on lesser included offenses for which the maximum allowable incarceration period is one year or less.” That rule was released December 18, 1975. The trial court in this case on August 18, 1978, without record explanation, ignored the rule. But the attorney for the defense and the assistant prosecuting attorney also ignored the rule. In fact, appellate defense counsel did not cite the violation in his original brief but did bring it to our attention in a supplemental brief. So far as we can determine the instruction was simply given as a lesser included offense instruction without discussion or objection or comment.
For my part I concur in the result reached by the majority because I am at a loss as to how to handle it otherwise. There is no doubt the defendant has been acquitted on the four year felony charge and on the two year firearm charge. There is no doubt that the record supports his guilt beyond a reasonable doubt of the misdemeanor charge for which the jury found him guilty. Reversal and retrial is not an alternative. Perhaps I am in error in saying that reversal and release ignores the facts, the rights of the people and the victim. It would have been easier if the trial court had given us a reasoned analysis on the subject. Since we cannot conceive that all of the principals were deaf to the detonation caused by Chamblis, we can only assume they were experimenting on their own and perhaps anticipating the "realistic relationship” analysis of the Supreme Court in People v Miller, 406 Mich 244 ; 277 NW2d 630 (1979).
I concur.