People v. Giddens , 18 Mich. App. 588 ( 1969 )

18 Mich. App. 588 (1969) 171 N.W.2d 596

PEOPLE
v.
GIDDENS

Docket No. 5,742.

Michigan Court of Appeals.

Decided August 25, 1969. Rehearing denied October 14, 1969. Leave to appeal denied January 21, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.

Carl Levin (Defender's Office, Legal Aid and Defender Association of Detroit), for defendant on appeal.

Before: HOLBROOK, P.J., and FITZGERALD and T.M. BURNS, JJ.

Leave to appeal denied January 21, 1970. See 383 Mich. 760.

PER CURIAM.

This case is submitted on the people's motion to affirm. Edgar Giddens, Jr., was convicted by a jury of the crime of robbery unarmed in violation of MCLA § 750.530 (Stat Ann 1954 Rev § 28.798), and on February 28, 1968, he was sentenced to 3-1/2 to 15 years in prison.

The case presents two questions: first, did the lower court err in failing to instruct the jury, in response to defense counsel's request, regarding the offense of attempted robbery? Second, were certain comments by the prosecuting attorney, during closing argument, so prejudicial as to deny defendant a fair and impartial trial?

A review of defendant's brief, the motion to affirm, and the transcript of the trial discloses that the court properly denied defendant's requested instruction. The court instructed the jury regarding the offenses of unarmed robbery, assault with the intent to rob and steal being unarmed, larceny from a person, and assault and battery. The failure to instruct the jury regarding attempted robbery was proper as there was no evidence to support such an instruction. People v. Stevens (1968), 9 Mich. App. 531.

Defendant's second allegation of error, pertaining to the prosecuting attorney's statements during closing argument, was not preserved for appeal since no objection was made. People v. Hider (1968), 12 Mich. App. 526; People v. Zesk (1944), 309 Mich. 129; and People v. Goldberg (1929), 248 Mich. 553. Moreover, the record discloses no miscarriage of justice. The statements made were not as highly inflammatory as those found in People v. Ignofo (1946), 315 Mich. 626, People v. Holmes (1940), 292 Mich. 212, or People v. Kelsey (1942) 303 Mich. 715, which resulted in prejudicial error requiring reversal even in the absence of objection in the lower court.

Motion to affirm is granted.