
    PEOPLE v SHEARS
    Criminal Law—Instructions to Jury—Appeal and Error—Assault and Battery—Lesser Included Offenses—Jury Findings.
    A trial court did not commit reversible error in a criminal trial by instructing the jury that they could not consider lesser included offenses until finding the defendant not guilty of the charged offense, where the instruction contained no requirement that they reach unanimous agreement on the defendant’s innocence of the charged offense before proceeding to consideration of the lesser offenses.
    Reference for Points in Headnote
    75 Am Jur 2d, Trial § 876 et seq.
    
    Appeal from Kent, Stuart Hoffius, J.
    Submitted February 1, 1977, at Grand Rapids.
    (Docket No. 24149.)
    Decided March 1, 1977.
    Gary B. Shears was convicted of assault with intent to do great bodily harm less than murder. Defendant appeals.
    Affirmed.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harold S. Sawyer, Prosecuting Attorney, for the people.
    
      Loeks, Buth, Wood & Weidaw, for defendant on appeal.
    Before: D. F. Walsh, P. J., and Quinn and Bashara, JJ.
   Quinn, J.

A jury convicted defendant of assault to do great bodily harm less than the crime of murder, MCLA 750.84; MSA 28.279. Following sentence, he appeals on one issue:

"Whether the trial court committed reversible error by instructing the jury that they could not consider lesser included offenses until finding defendant not guilty of the charged offense?”

Defendant’s argument in support of his affirmative position on this issue stems from People v Ray, 43 Mich App 45, 50; 204 NW2d 38 (1972), where this Court said:

" * * * , the requirement of unanimous agreement on defendant’s innocence of the greater charge before discussion of the lesser charges is permitted is coercive, unduly restrictive and reversible.”

However, we find Ray inapplicable to the instruction attacked here. It contained no "unanimous agreement” requirement before proceeding to consideration of lesser offenses. We recognize that People v Harmon, 54 Mich App 393; 221 NW2d 176 (1974), supports defendant, but we prefer the more restrictive rule of Ray, supra. We note that defendant concedes that the language quoted from People v Hurst, 396 Mich 1, 10; 238 NW2d 6 (1976), and relied on by him is dicta. We decline to follow it.

Affirmed.  