People v. Darwin Brown

Following a conviction for first-degree murder, CL 1948, § 750.316 (Stat Ann 1954 Rev § 28.548), defendant submitted the present appeal alleging error in the jury- instructions. He claims that the trial judge on' three occasions misstated requisite elements of first-degree murder as premeditation or deliberation, rather than the proper phraseology of premeditation and deliberation. Defendant is correct; the two-elements were incorrectly disjuncted with “or” rather than correctly conjuncted with “and” in three instances within the jury instructions. However, we affirm the conviction for two reasons:

(1) Although adequate opportunity was provided, defendant did not object to the jury instructions as given. Consequently, defendant waived any error committed absent a showing of substantial injustice. GCR 1963, 516.2; CL 1948, § 768.29 (Stat Ann 1954 Rev § 28. 1052); People v. Dexter (1967), 6 Mich App 247; People v. Cassiday (1966), 4 Mich App 215.

(2) The three tongue slips occurred within an expansive set of jury instructions which included a reading of the information that correctly stated the elements of first-degree murdér in compliance with state statutes and case law. CL 1948, § 767.45 (Stat Ann 1954 Rev § 28.985); CL 1948, § 767.71 (Stat Ann 1954 Rev § 28. 1011); People v. Quicksall (1948), 322 Mich 351; People v. Roberts (1920), 211 Mich 187. The jury instructions included correct statements of the two elements, and when read as a whole their *52 emphasis gives the impression that both elements are necessary. People v. Serra (1942), 301 Mich 124. Therefore, the instructions did not impress the proceedings with substantial injustice.

Affirmed.