PEOPLE
v.
CUMMINS.
Docket No. 13198.
Michigan Court of Appeals.
Decided March 27, 1973.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Thomas P. *602 Smith, Assistant Prosecuting Attorney, for the people.
John B. Phelps, Assistant State Appellate Defender, for defendant.
Before: T.M. BURNS, P.J., and BASHARA and ADAMS,[*] JJ.
BASHARA, J.
Defendant was convicted by a jury of assault with intent to rob while armed[1] and assault with intent to do great bodily harm less than murder.[2] He was sentenced to concurrent terms of 10 to 20 years and 5 to 10 years imprisonment.
Defendant contends that the trial court improperly instructed the jury on the issue of intoxication.
In order to resolve this issue it is necessary for us to determine the propriety of the trial judge's ruling that the defendant could not offer the defense of intoxication, since notice of the defense had not been filed as required by statute.[3] This occurred while defendant was testifying as to the ingestion of heroin immediately prior to going into the establishment where the offenses were allegedly committed. The trial judge dismissed the jury at that point and clearly indicated to defense counsel that defendant could not offer such a defense unless four days notice had been given to the prosecutor prior to trial. After this admonition from the trial judge, defense counsel indicated he did not wish to pursue intoxication as a defense.
*603 The statute requires notice when the defense is based on alibi or insanity, and not when intoxication is used to negate specific intent. This provision would be applicable to a defense of intoxication only where a defendant claimed insanity due to intoxication.
The record reveals that defense counsel was attempting to show that defendant's use of heroin immediately prior to the incident negated his mental ability to form the requisite specific intent. Thus, the trial court erred in informing defense counsel that defendant could not rely on a defense of intoxication.
At the close of proofs and argument the following instruction was given.
"Now there has been some testimony here, members of the jury, about narcotics and other things, and if you remember conclusively that I stated that the narcotics, if there were narcotics, and if a person was under the narcotics, he would have to file a notice with the prosecuting attorney four days prior to trial. The testimony in this case, members of the jury, that the defendant knew right from wrong, and the question of narcotics is not involved in this case, because you have heard the testimony from that chair from both sides as to whether or not the narcotics had any effect in this particular robbery."
Defendant made no objection. Absent a miscarriage of justice, appellate review is precluded, People v Flatt, 44 Mich. App. 452 (1973); People v Mitten, 44 Mich. App. 64 (1972).
However, it is error for the trial court to give a misleading or erroneous instruction. People v Kelly, 21 Mich. App. 612 (1970); People v Price, 21 Mich. App. 694 (1970). The instruction given was erroneous, in that it was not necessary to file notice in order to invoke the defense of intoxication. *604 Further it is clear that intoxication was at least a factor in the matter since evidence was produced regarding defendant's use of narcotics immediately prior to the commission of the crime, and defendant was charged with crimes which required a specific intent. People v Berryhill, 8 Mich. App. 497 (1967); People v Guillett, 342 Mich. 1 (1955).
The Supreme Court faced a similar situation in People v Guillett, supra. In that case, the trial court instructed the jury that intoxication would never be a defense to a crime. There was no request made by defendant nor did he object to the instruction as given. In reversing the conviction, the Court stated:
"Had the court in the instant case remained silent about intoxication it is possible, though we do not here decide it, that we would not have reversed, either because no requests had been made (intoxication apparently not being important enough to warrant a charge without a request, see People v Prinz [148 Mich. 307 (1907)]; People v Kanar [314 Mich. 242 (1946)]), or because a request, even if offered, might have been correctly refused on the ground that the evidence of intoxication was insufficient to raise such a defense. People v Kirk, 151 Mich. 253 (1908).
"The error here is one of omission. The charge is one of half-truth and misleading. The effect of the instruction given in this case was to instruct the jury that any and all evidence of intoxication had absolutely no bearing on appellant's guilt of the crime charged. It has been said that a charge stating some elements of a crime but omitting others `would have a natural tendency to cause a jury to believe that those stated were exclusive'. People v MacPherson (323 Mich. 438), 452 (1949). It was, therefore, prejudicial to appellant. It was reversible error." People v Guillett, supra, at p 8.
As in Guillett, the instruction in the instant *605 case was erroneous and resulted in a miscarriage of justice so that defendant was denied a fair trial.
Reversed and remanded.
All concurred.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
[1] MCLA 750.89; MSA 28.284.
[2] MCLA 750.84; MSA 28.279.
[3] MCLA 768.20; MSA 28.1043.