holding that if defendants developed the intent to deprive the victim of his money only after they beat him unconscious, theft would constitute larceny from the person, but not robbery
How later courts described this case
- holding that if defendants developed the intent to deprive the victim of his money only after they beat him unconscious, theft would constitute larceny from the person, but not robbery
- noting this Court's treatment of M.C.L. § 768.32, which permits an instruction on lesser offenses when supported by the evidence
- stating that the jury is free to accept some parts of a defendant’s account and reject others
- “We are committed to the view that the crime of larceny from the person embraces the taking of property in the possession and immediate presence of the victim.”
Written by the judges who cited it.
Later courts went against this
Overruled in part, on other grounds by People v. Cornell, 466 Mich. 335 (2002)
236 N.W.2d 473, 481 (Mich. 1975), overruled on other grounds by People v. Cornell, 646 N.W.2d 127
Overruled in part, on other grounds by People v. Stephens, 416 Mich. 252 (1983)
395 Mich 408, 415; 236 NW2d 473 (1975), overruled in part on other grounds by People v Stephens, 416 Mich 252, 260-261; 330 NW2d 675 (1982).
Overruled in part, on other grounds by Hesse v. Ashland Oil, Inc, 466 Mich. 21 (2002)
236 NW2d 473 (1975), overruled in part on other grounds People v Cornell, 466 Mich 35, 357
The opinion
Lindemer, J.
(dissenting). The majority opinion elicits my dissent.
I differ as to the propriety of the instruction on larceny from a person being given to the jury over defense counsel’s objection that "I don’t want to give the jury a chance to compromise”, and with the majority rule that "[t]he duty of the trial court to instruct on lesser included offenses is determined by the evidence. People v Phillips, [ 385 Mich 30 ; 187 NW2d 211 (1971)]”.
The majority opinion cites three Michigan cases in support of the theory that defense counsel may not direct attention solely to the offense charged or a verdict of not guilty. The first case is Hanna v People, 19 Mich 316 (1869). The language cited by *432 the majority is from the statement of facts printed prior to Justice Christiancy’s opinion. The opinion then states, at 318:
"The exceptions taken on the trial raise only the question, whether under this information (which is for an offense not a felony at common law, but made so by our statute), it was competent to find the defendant guilty of a simple assault and battery?”
At that time the courts were divided on whether a verdict of guilty to a misdemeanor would lie in a trial brought on a felony charge. In discussing and resolving that issue the Court never addressed the problem of the trial court giving the objected-to instruction. In People v Milhem, 350 Mich 497 ; 87 NW2d 151 (1957), a trial on a charge of first degree murder, defense counsel’s objection to a charge on manslaughter was that there was no evidence to support that charge. The Court quite properly found that evidence did exist to support the charge, but it said nothing of the propriety of giving a charge on a lesser included offense over the objection of defense counsel asserting a compromise-protection purpose. Finally, in People v Phillips, supra, at 36 , there was no objection by any of three codefendants and, in fact, one defendant requested the lesser included offense instructions. In short, these cases do not support the majority proposition.
The majority view is supported by language in People v St Martin, 1 Cal 3d 524; 83 Cal Rptr 166; 463 P2d 390 (1970). That discussion arose after reversal on another issue as one of the other issues that might have arisen on retrial. Further, it arises there in the context of defendant’s entitlement to a request on necessarily included offenses. Even if the language were decisional, it is not binding on this Court, and I respectfully disagree with the conclusions reached therein.
*433 As has been demonstrated, the informed choice of defense counsel to restrict attention to the principal charge has not been foreclosed by the majority’s cases; neither is it prohibited by statute. MCLA 768.32; MSA 28.1055, simply speaks to the possibility that the jury may find the accused not guilty of an offense in the degree charged in the indictment while still allowing a guilty verdict of any inferior degree of such offense. It does not speak to instructions on lesser included offenses. MCLA 768.29; MSA 28.1052, says that the court shall instruct the jury as to the law applicable to the case, but does not mandate what law is applicable to the case.
In the context of our adversary system of justice, there may be times when, for an attorney to protect his client’s interests, he must insist that an "all or nothing” choice be made. To dismiss such trial strategy as gambling, as does the majority, ignores the facts of life about our present criminal justice system.
Aside from the foregoing, the majority has ventured, by way of dicta, into areas of jurisprudence not presented by this case. Its magic wand answers are to questions not asked, on issues not briefed and arguments, not made. This Court would be better advised to adopt theories which are propounded and tested below and to which the learned adversaries have directed their attention and talents. I refer specifically to the discussion of instructions on lesser included cognate offenses, to the rule cutting off lesser included offense instructions for which the maximum allowable incarceration period is one year or less when the charged offense is punishable by incarceration for more than two years, and to the policy limitation on the extent of compromise allowable.
The Court of Appeals should be affirmed.