
    People v. Adolphus.
    Appeal from Recorder’s Court of Detroit, Thomas L. Poindexter, J.
    Submitted Division 1 June 1, 1971, at Lansing.
    (Docket No. 10137.)
    Decided June 29, 1971.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor Genera], William L. Cabalan, Prosecuting Attorney, Dominick R. Camomile, Chief, Appellate Department, and Gerard A. Poeblman, Assistant Prosecuting Attorney, for the people.
    
      Thomas J. Misko, for defendant on appeal.
    Before: McGregor, P. J., and Bronson and Danhof, JJ.
   Per Curiam.

The defendant was convicted by a jury of assault with intent to do great bodily harm less than murder. MCLA § 750.84 (Stat Ann 1962 Rev § 28.279). He was sentenced to a term of seven to ten years to run concurrently with a Federal sentence for bank robbery.

On appeal the defendant questions the instructions given to the jury although no objection was made to them at the time of the trial. A review of the trial judge’s charge to the jury pertaining to assault with intent to kill and murder and the included offenses shows that he did not affirmatively exclude the included offenses of assault and assault and battery. For that reason this ease is distinguishable from People v. Lemmons (1970), 384 Mich 1. A review of the trial judge’s comments on the evidence that are now put in question by the defendant has satisfied us that the comments were a fair representation of the testimony and that if there was any slight inaccuracy it was not prejudicial. The questions sought to be reviewed are so unsubstantial as to require no argument or formal submission.

Motion to affirm is granted,  