(dissenting). I respectfully dissent. Because defense counsel did not object to the instruction given or to the form of verdict, reversal should be predicated only on manifest injustice. People v Johnson, 93 Mich App 667, 669; 287 NW2d 311 (1979).
The instructions given to the jury were objectionable under the rule stated in People v Hurst, 396 Mich 1, 10; 238 NW2d 6 (1976), People v Mays, 407 Mich 619, 623; 288 NW2d 207 (1980), and People v West, 408 Mich 332, 342; 291 NW2d 48 (1980). Such cases hold that a court may not instruct a jury so as to require acquittal of the charged offense before considering the lesser included offense.
In the case at bar defendant was found guilty of the more serious of the lesser included offenses within Count II, and the jury had been instructed that they "must find” the "higher one not guilty” before going to the "lower one”. We cannot assume that no prejudice resulted from the erroneous instruction. I would reverse the conviction and grant a new trial.