Order Michigan Supreme Court
Lansing, Michigan
June 23, 2009 Marilyn Kelly,
Chief Justice
138354 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
PEOPLE OF THE STATE OF MICHIGAN, Diane M. Hathaway,
Plaintiff-Appellee, Justices
v SC: 138354
COA: 282505
Jackson CC: 07-003775-FC
JACK EDWARD SMITH,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the January 8, 2009
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
MARKMAN, J. (concurring).
I concur in the Court’s order denying leave to appeal. I write separately only to
note that the Court of Appeals erred in its rationale for rejecting defendant’s argument
that he was entitled to a jury instruction on an attempted arson. The court rejected this on
the grounds that attempted arson constitutes a cognate offense of the charged offense,
arson, and therefore such an instruction is not permitted under People v Cornell, 466
Mich 335 (2002).
People v Cornell construed MCL 768.32(1) which provides:
Except as provided in subsection (2), upon an indictment for an
offense, consisting of different degrees, as prescribed in this chapter, the
jury, or the judge in a trial without a jury, may find the accused not guilty
of the offense in the degree charged in the indictment and may find the
accused person guilty of a degree of that offense inferior to that charged in
the indictment, or of an attempt to commit that offense. [Emphasis added.]
2
Pursuant to this, footnote 7 of Cornell notes, “MCL 768.32(1) . . . also permits instruction
on an attempt to commit [an] offense.” Cornell, supra at 354 n 7.
Cornell and its progeny have largely focused on which offenses are necessarily
included lesser offenses and which are cognate offenses. However, it cannot be
overlooked that MCL 768.32(1) expressly authorizes an instruction for an “attempt” of a
charged offense, even though an attempt may otherwise constitute a cognate offense.
Where warranted by the evidence, such an instruction must be provided.
CORRIGAN and HATHAWAY, JJ., join the statement of MARKMAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 23, 2009 _________________________________________
d0616 Clerk