People v. Ritchie ( 1974 )

52 Mich. App. 380 (1974) 217 N.W.2d 439

PEOPLE
v.
RITCHIE

Docket No. 16377.

Michigan Court of Appeals.

Decided March 28, 1974.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Ronald J. Taylor, Prosecuting Attorney, and Sally M. Zack, Assistant Prosecuting Attorney, for the people.

Roger L. Wotila, Assistant State Appellate Defender, for defendant.

Before: R.B. BURNS, P.J., and ALLEN and O'HARA,^[*] JJ.

R.B. BURNS, P.J.

Defendant was found guilty by a jury of breaking and entering with intent to commit larceny. MCLA 750.110; MSA 28.305.

A review of the record discloses no reversible error. We affirm.

During oral argument, defense counsel raised the issue that the trial judge, during his instructions, had informed the jury that the lesser included offense of entering without permission (MCLA 750.115; MSA 28.310) was a misdemeanor.

The writer of this opinion also authored People v Nichols, 50 Mich App 440; 213 NW2d 558 (1973), and in that case held such an instruction was error. But an incorrect decision was made in Nichols. In People v Burk, 238 Mich 485; 213 NW 717 (1927), the Supreme Court upheld the trial court's practice of reading the statute to the jury. Statutes state whether the crime is a felony or a misdemeanor.

Affirmed.

All concurred.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.