¶1{dissenting). I dissent for the following reasons:
¶3This appeal involves a trial which was conducted after January 1, 1963! The General Court Buies are applicable to criminal trials. GCB 1963, 785.1 (1). The alleged error relied on for reversal by the majority cannot be assigned as error because the defendant failed to comply with GCB 1963, 516.2.
¶4This Court has consistently held that in order to preserve error pertaining to the giving of an instruction there must be compliance with GCB 1963, 516.2. See People v. Keys (1968), 9 Mich App 482; People v. Keiswetter (1967), 7 Mich App 334; People v. Dexter (1967), 6 Mich App 247; People v. Cassiday (1966), 4 Mich App 215; People v. Mallory (1966), 2 Mich App 359. The Michigan Supreme Court has adopted the same view. Nuccio v. Severini (1965), 374 Mich 189, 191; Salvatore v. City of Harper Woods (1963), 372 Mich 14; Smith v. Musgrove (1964), 372 Mich 329; Sarazin v. Johnson Creamery, Inc. (1964), 372 Mich 358; McKinney v. Anderson (1964), 373 Mich 414.
¶5The one exception to this strict application of GCB 1963, 516.2, occurs when such application is inconsistent with substantial justice. GCB 1963, 529.1. See also Hunt v. Deming (1965), 375 Mich 581. The latter also indicates that language in Supreme Court opinions prior to GCB 1963 relating to claimed error in jury instructions is no longer applicable.
¶6The philosophy behind GCB 1963 was to deemphasize procedural niceties so that cases could be more readily disposed of on their merits. GCB 1963, 13 and committee comment thereunder; GCB 1963, 529.1. This philosophy comports with that expressed legislatively in MCLA § 769.26 (Stat Ann *6341954 Rev § 28.1096). The majority opinion and the authorities therein relied upon are not only contrary to this philosophy, they demonstrate the reason for adopting it, namely: courts should look to substance not form.
¶7GrCR 1963, 516.2, does not abrogate defects of form as a basis for relief; it specifies the procedure required to save such defects for review. If that procedure is not followed, the only basis for review is that expressed in GrCR 1963, 529.1. The question then becomes: is it inconsistent with substantial justice to affirm this conviction with the language complained of in the jury instruction ?
¶8The language in the instructions seized upon by the majority as grounds for reversal may offend trained, scholarly minds but it does not offend the guiding principle “inconsistent with substantial justice.”
¶9II
¶10Assuming arguendo that that small portion of the instruction complained of was error, it was at best harmless error. And in accordance with the mandate set forth in GrCR 1963, 529.1
¶11Ill
¶12We are governed by MCLA § 769.26 (Stat Ann 1954 Rev § 28.1096), which provides as follows:
*635“No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this State in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”
¶13I cannot say after a full examination of the entire cause it affirmatively appears that the error complained of, if true, resulted in a miscarriage of justice.
¶14IV
¶15It is axiomatic that instructions to a jury must be considered as a whole and ample authority supports that proposition. Considering the instructions as given, I cannot say that the giving of such instructions constituted reversible error.
¶16I would affirm the conviction.
¶17 “No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted, by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding shall construe these rules to secure the just, speedy, and inexpensive determination of every action so as to avoid the consequences of any error or defect in the proceeding which does not affeet the substantial rights of the parties.”