People v. Kelley , 16 Mich. App. 332 ( 1969 )

16 Mich. App. 332 (1969) 167 N.W.2d 837

PEOPLE
v.
KELLEY

Docket No. 5,117.

Michigan Court of Appeals.

Decided February 28, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and Paul R. Adams, Assistant Prosecuting Attorney, for the people.

Charles G. Gibbons, for defendant.

BEFORE: QUINN, P.J., and McGREGOR and V.J. BRENNAN, JJ.

PER CURIAM:

Defendant was tried before a jury on a charge of assault with intent to commit rape, CLS 1961, § 750.85 (Stat Ann 1962 Rev § 28.280), was convicted and sentenced to serve from 5 to 10 years.

The trial court declined to instruct the jury that simple assault and assault and battery are lesser included offenses of the crime charged and that it could find defendant guilty of these crimes. CL 1948, § 768.32 (Stat Ann 1954 Rev § 28.1055) provides for a jury finding of different degrees of the same offense inferior to the one charged in the indictment. Simple assault and assault and battery are lesser, included offenses of the crime of assault with intent to commit rape. People v. Gibbons (1932), 260 Mich 96. The facts alleged and evidence adduced here would support a finding that one of these crimes had been committed. Therefore defendant was entitled to an instruction as to these lesser, included offenses.

This was reversible error and such holding obviates discussion of other alleged errors raised on appeal.

Reversed and remanded for new trial.