Mr. Justice BUTZEL, relying upon People v. Jones, 273 Mich. 430, has written for reversal. I am unable to agree either in the result reached or that the decision in the Jones Case is at all applicable to the instant case. The question under consideration is whether the circuit judge's failure to charge the jury with reference to a lesser offense included in the charge against defendant of having made an assault while armed with a dangerous weapon, was reversible error.
In the Jones Case the defendant was convicted of rape and there was reversal in this Court on the ground that the trial judge withheld from consideration of the jury the lesser included offenses — i. e., assault with intent to commit rape and assault and battery. The facts, as to which there was conflicting testimony, are outlined in our opinion in the JonesCase as follows:
"The people's claim is that about 1:30 o'clock in the morning of September 28, 1934, four men in an automobile accosted the complaining witness, *Page 358 dragged her into the car, took her by force to a room in an apartment hotel, defendant was in the room and, while two of them, Louis Shermataro and Nate Simmons, held her, defendant criminally assaulted her, as did the others afterward.
"Defendant's claim is that the complaining witness came voluntarily to his room between 1:30 and 2 o'clock with Nate Simmons, defendant and Shermataro then being in the room; the other men left for a few minutes and, during their absence, defendant and complainant cohabited with her full consent."
Obviously, if the act of intercourse was with the complaining witness's "full consent" (as defendant testified), the crime of rape was not committed. But if the four men "dragged her into the car," which the jury might have found to be the fact, the offense of assault and battery was then and there committed, and this was the only offense committed if thereafter the course of conduct of the complaining witness was voluntary. If, however, against her will the men took the woman to the hotel room in anticipation of raping her, then there was committed an assault with intent, notwithstanding when complaining witness was later left alone in the room with Jones she (he testified) consented to sexual intercourse. Hence, under the conflicting testimony, it was clearly a question of fact for the jury in the Jones Case as to which of the three offenses, if any, was established beyond a reasonable doubt.
But in the instant case if an assault was committed at all, the additional element of being armed at the time with a dangerous weapon was freely admitted by defendant who took the witness stand in his own behalf. As to this element of the offense charged in the instant case there was no issue for the jury, because the defendant testified: "I was in possession *Page 359 of these firearms on the night or on the morning of January 21st. They were in my car. The rifle I was pointing out of the car window. Mr. Lawrence had the possession of this automatic pistol."
Under the above testimony given by defendant, if he committed any assault in violation of law, he committed it while armed with a dangerous weapon; and the trial court was not in error in instructing the jury: "there are only two possible verdicts, one of guilty as charged, the other, not guilty."
"Where, under the proofs in a homicide case, the killing is shown to have been committed by lying in wait, and by a preconceived plan willfully and deliberately to take life, it is not error to instruct the jury that, if the respondent is guilty at all, he is guilty of murder in the first degree."People v. Repke (syllabus), 103 Mich. 459.
"Under the evidence, the court was justified in instructing the jury that, if the respondents were guilty at all, they were guilty of murder in the first degree." People v. Fuhrmann (syllabus), 103 Mich. 593.
"One who induces another, by promise of reward, to lie in wait and commit homicide, is guilty of murder in the first degree, and a jury, in passing upon his guilt, is properly limited to the consideration of that offense." People v. Nunn (syllabus), 120 Mich. 530.
"To instruct the jury in a criminal case that the defendant cannot properly be convicted of a crime less than that charged, or to refuse to instruct them in respect to the lesser offences that might, under some circumstances, be included in the one so charged — there being no evidence whatever upon which any verdict could be properly returned except one of guilty or one of not guilty of the particular *Page 360 offence charged — is not error; for the instructing or refusing to instruct, under the circumstances named, rests upon legal principles or presumptions which it is the province of the court to declare for the guidance of the jury." Sparf Hansen v. United States, 156 U.S. 51, 103 (15 Sup. Ct. 273).
I agree with Mr. Justice BUTZEL that the other alleged errors are without merit and would not justify reversal. The conviction and sentence are affirmed.
BUSHNELL, C.J., and SHARPE and McALLISTER, JJ., concurred with NORTH, J. The late Justice POTTER took no part in this decision.