PEOPLE OF MI V JAMES MATTHEW EZEKIEL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 11, 2004
Plaintiff-Appellee,
v
No. 245004
Wayne Circuit Court
LC No. 02-002533
JAMES MATTHEW EZEKIEL,
Defendant-Appellant.
Before: Cooper, P.J., and Griffin and Borrello, JJ.
COOPER, P.J. (dissenting).
I would respectfully dissent from the majority opinion of my esteemed colleagues.
I disagree with the majority ruling that assault and battery is not a lesser included offense
of assault with intent to do great bodily harm. Even the prosecution has conceded that assault
and battery is a lesser included offense of assault with intent to do great bodily harm, as all the
elements of the lesser offense are subsumed by the greater. Battery has been defined as “the
willful touching of the person of another by the aggressor . . . ; or, as it is sometimes expressed, a
battery is the consummation of the assault.”1 Conversely, assault has been defined as an
attempted battery.2 To assert that the attempt to commit a battery is a lesser included offense
while asserting that the completed offense is not a lesser offense is illogical.
I also cannot agree that the trial court’s refusal to give the requested instruction amounts
to harmless error. The jury found defendant guilty of a lesser included offense—aggravated
assault. As such, the jury should have also had the opportunity to consider the lesser offense of
assault and battery.3
1
People v Bryant, 80 Mich App 428, 433; 264 NW2d 13 (1978), quoting Tinkler v Ritcher, 295
Mich 396, 401; 295 NW 201 (1940).
2
People v Reeves, 458 Mich 236, 240; 580 NW2d 433 (1998), quoting People v Sanford, 402
Mich 460, 479; 265 NW2d 1 (1978).
3
People v Beach, 429 Mich 450, 490-491; 418 NW2d 861 (1988); People v Zak, 184 Mich App
1, 16; 457 NW2d 59 (1990).
-1-
Therefore, I would reverse and remand for further proceedings.
/s/ Jessica R. Cooper
-2-
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