
    PEOPLE v CARDIGAN
    1. Criminal Law — Lesser Included Offense — Instructions to Jury.
    A judge is not obligated to instruct on a lesser included offense unless the jurors can reasonably infer from the evidence, or lack of it, that the greater offense was not committed and that the lesser offense was.
    2. Criminal Law — Lesser Included Offense — Refusal to Charge.
    Refusal to charge on the lesser included offense of entering an occupied dwelling without permission was not error where the evidence only showed that defendant had committed the greater offense of breaking and entering an occupied dwelling.
    3. Criminal Law — Alibi—Instructions to Jury.
    An alibi defense instruction was entirely fair to the defendant where the instruction was a balanced explanation which apprised the jurors of their obligation to both the people and the defendant in appraising the defense; the quality and credence of the testimony regarding the alibi was for the jury to determine.
    References for Points in Headnotes
    
       53 Am Jur, Trial §§ 796-798.
    
       53 Am Jur, Trial §§ 540, 654.
    Appeal from Calhoun, Creighton R. Coleman, J.
    Submitted Division 3 June 7, 1972, at Grand Rapids.
    (Docket No. 11685.)
    Decided June 28, 1972.
    Howard Cardigan was convicted of breaking and entering an occupied dwelling. Defendant appeals.
    Affirmed.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Stanley Everett, Prosecuting Attorney, and J Thomas Schaeffer, Assistant Prosecuting Attorney, for the people.
    
      
      Peter W Hirsch, for defendant on appeal.
    Before: R. B. Burns, P. J., and Levin and Targonski, JJ.
    
      
       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
    
   Per Curiam.

The defendant, Howard Cardigan, appeals his conviction of breaking and entering an occupied dwelling. MCLA 750.110; MSA 28.305.

The trial judge did not err in refusing to charge on the lesser included offense of entering without permission. MCLA 750.115; MSA 28.310. A judge is not obliged to instruct on a lesser offense unless the jurors can reasonably infer from the evidence, or lack of evidence, that the greater offense was not committed and that the lesser offense was committed. People v Gregory Thomas, 38 Mich App 777, 779 (1972); People v Membres, 34 Mich App 224 (1971).

Here the evidence shows only that the greater offense, breaking and entering an occupied dwelling, was committed. There was no conflict in the testimony of the people’s witnesses. The testimony of the people’s witnesses was not impeached. The defense was alibi.

Nor do we find error in the instruction concerning the alibi defense. Read in context, the instruction was a balanced explanation of the nature of the defense which apprised the jurors of their obligation to both the people and the defendant in appraising the defense. It was entirely fair to the defendant. The "quality and credence of the testimony was for the jury to determine”. People v Hudson, 386 Mich 665, 671 (1972).

Affirmed.  