PEOPLE OF MI V NATHAN MONTAGUE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 22, 2003
Plaintiff-Appellee,
v
No. 232314
Clinton Circuit Court
LC No. 00-006837-FC
NATHAN MONTAGUE,
Defendant-Appellant.
Before: Talbot, P.J., and Sawyer and O’Connell, JJ.
PER CURIAM.
Defendant, originally charged with murder in the second degree, MCL 750.317, was
convicted, following a jury trial, of assault with intent to do great bodily harm less than the crime
of murder, MCL 750.84. He was sentenced to four and one-half to ten years in prison. He now
appeals and we reverse.
Defendant raises a number of issues, one of which is dispositive. Defendant argues that
the trial court erred in granting the prosecutor’s request, over defendant’s objection, to instruct
the jury on assault with intent to do great bodily harm, the offense for which he was ultimately
convicted. We agree. Assault with intent to do great bodily harm is a cognate lesser-included
offense to second-degree murder. People v Bailey, 451 Mich 657, 669; 549 NW2d 325 (1996).
The Supreme Court recently held that it is not permissible to give an instruction on a cognate
lesser-included offense. People v Cornell, 466 Mich 335, 359; 646 NW2d 127 (2002); People v
Reese, 466 Mich 440, 446; 647 NW2d 498 (2002); see also People v Alter, 255 Mich App ___;
___ NW2d ___ (No. 228005, issued 1/24/03), slip op at 3-4. Therefore, the trial court erred in
instructing the jury on assault with intent to commit great bodily harm when the only crime
charged in the information was second-degree murder.
In light of our disposition of the above issue, it is unnecessary to address defendant’s
remaining issues.
Reversed.
/s/ Michael J. Talbot
/s/ David H. Sawyer
/s/ Peter D. O’Connell
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