(dissenting). I am unable to agree with the result reached by Judge Danhoe.
In case number 8772 (Sturgeon), five assignments of error were made. Two were concerned with alleged abuse of judicial discretion in the regulation of cross-examination and the permitting of testimony by a claimed accomplice who presumably overheard testimony in violation of an order excluding from the courtroom witnesses who were to testify later. One was founded on impermissible cross-examination, one on improper comments by the assistant prosecuting attorney, and one on a general allegation that there was insufficient evidence to sustain the conviction. The failure to instruct, on the *632element of intent, was not raised or briefed. It is not properly before us. None of the other assignments of error are meritorious as to defendant Sturgeon, and I would affirm his conviction without discussion of the claimed erroneous charge and the. claimed infirm verdict said to have resulted therefrom.
In case 8705 {Miller), the ground on which Judges Banhof and Bronson reverse is raised and briefed, or, if not briefed, at least argued. It is before us if it were saved for review. The claimed error must have grown out of the charge as given. At the conclusion of the instruction the trial judge specifically asked defense counsel for appellant Miller whether he had any objection to the charges or wanted any additions, deletions, or corrections. The record discloses that counsel replied, “None, your Honor”.
I am of the impression that it is settled in our own jurisdiction that where no objection to a charge is made, no error can be predicated thereon. As lately as People v. Allar (1969), 19 Mich App 675, 677, this Court, speaking through the Chief Judge, held unequivocally:
“Moreover, although given the opportunity by the trial court, no objections to the instructions were raised by this defendant. Defendant’s failure of timely objection waives his right to object to the instructions on appeal.” Aliar, supra (and supporting authority there cited).
I am aware that if an error in the trial court’s charge is of such a basic character as to deprive the defendant of a fair trial, or due process in the constitutional sense, an appellate court can raise the issue sua sponte. Certainly I do not find this to be the case here. If the jury believed, as it quite apparently did, that the defendants broke and entered *633the premises, it hardly follows that it imputed to them no felonious intent. The entry into the premises was certainly not social in nature. I find no reversible error. This is a clear case of judgment of the credibility of witnesses. That judgment was made by the jury. We should not disturb it.
I would affirm.