
    PEOPLE v. KELLEY
    Criminal La-w — Assault With Intent to Commit Rape — Included Offenses — Assault—Instructions to Jury.
    Simple assault and assault and battery are lesser included offenses in the crime of assault with intent to commit rape, and it was reversible error for the trial court to fail to instruct the jury that it could find defendant guilty of either of these crimes, where the facts alleged and evidence adduced would support a finding that one of these crimes had been committed (CLS 1961, § 750.85; CL 1948, § 768.32).
    Appeal froto Jackson, Gordon Britten, J.
    Submitted Division 2 February 7, 1969, at Lansing.
    (Docket No. 5,117.)
    Decided February 28, 1969.
    Leslie Kelley was convicted of assault with intent to commit rape. Defendant appeals.
    Reversed and remanded.
    
      Frank J. Kelley, Attorney General, Robert A. Derengo ski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and Paul R. Adams, Assistant Prosecuting Attorney, for the people.
    
      Charles C. Gibbons, for defendant.
    BEFORE: Quinn, P. J., and McGregor and V. J. Brennan, JJ.
    References for Points in Headnote
    44 Am Jur, Rape § 124; 53 Am Jur, Trial § 796 et seq.
    
   Per Curiam.

Defendant was tried before a jury-on a charge of assault with intent to commit rape, CLS 1961, § 750.85 (Stat Ann 1962 Rev § 28.280), was convicted and sentenced to serve from 5 to 10 years.

The trial court declined to instruct the jury that simple assault and assault and battery are lesser included offenses of the crime charged and that it could find defendant guilty of these crimes. CL 1948, § 768.32 (Stat Ann 1954 Rev § 28.1055) provides for a jury finding of different degrees of the same offense inferior to the one charged in the indictment. Simple assault and assault and battery are lesser, included offenses of the crime of assault with intent to commit rape. People v. Gibbons (1932), 260 Mich 96. The facts alleged and evidence adduced here would support a finding that one of these crimes had been committed. Therefore defendant was entitled to an instruction as to these lesser, included offenses.

This was reversible error and such holding obviates discussion of other alleged errors raised on appeal.

Reversed and remanded for new trial.  