¶1(dissenting in part, concurring in part). I respectfully dissent.
¶2Although I concur in the majority’s holding that the conviction of armed robbery must be vacated, I cannot agree to the majority’s findings in two of the issues raised by the defendant that I believe mandate reversal.
¶3In regard to the court’s instruction on the elements of felony murder, I reaffirm my dissent in People v Till, 80 Mich App 16; 263 NW2d 586 (1977), in which I set forth my approval of People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976).
¶4Also, I am persuaded that the court’s alibi instruction was erroneous.
¶5The pertinent portion of that instruction reads:
*365"If you believe from the testimony that you have heard that Mr. Wilder was some place else when this crime occurred, if you find out that this is a crime, you must find him not guilty, if he was some place else.
"Now if you do not believe his defense — now listen carefully — you must not convict him upon that alone because you must keep in mind that he didn’t have to bring that up to you. The test is is he guilty beyond a reasonable doubt upon the evidence that the prosecution has brought you, not what he’s brought you.
"In other words, what I am saying is this: if you decide that the witnesses that testified for him just totally lied to you, that’s not enough for you to convict him upon. You can consider that, but you then must go to the prosecution’s case and say did the prosecutor prove him guilty beyond a reasonable doubt? Now I hope you understand me. If you do not believe his witnesses that is not enough alone to convict him on. The test is did the prosecution prove him guilty beyond a reasonable doubt. Now you must keep in mind, as I have said, alibi is a legal defense, it is a good defense if you believe it.” (Emphasis added.)
¶6In People v Erb, 48 Mich App 622; 211 NW2d 51 (1973), this Court stated:
"An instruction to the jury concerning the defense of alibi must clearly explain that this defense offers two avenues of relief for the defendant. First, if the alibi is established, a perfect defense has been shown and the defendant should accordingly be acquitted. Alternatively and, perhaps, more importantly, the instruction must clearly indicate that if any reasonable doubt exists as to the presence of the defendant at the scene of the crime then, also, the defendant should be acquitted. People v Virgil Brown, 15 Mich App 600, 605-606; 167 NW2d 107, 110 (1969); People v Loudenslager, 327 Mich 718, 726; 42 NW2d 834, 837 (1950).” (Emphasis added.) 48 Mich App at 630.
¶7The ErbCourt’s "two avenues of relief’ analysis *366is founded on 80 years of legal precedent. See People v Burden, 395 Mich 462, 467; 236 NW2d 505, 507 (1975), citing People v Resh, 107 Mich 251; 65 NW 99 (1895). Where an alibi instruction fails to clearly enunciate the dual purposes of alibi testimony, this Court has found reversible error. People v John Johnson, 58 Mich App 60; 227 NW2d 228 (1975), People v William Johnson, 54 Mich App 678; 221 NW2d 452 (1974), People v McShan, 53 Mich App 407; 219 NW2d 792 (1974). See also, People v Marvill, 236 Mich 595; 211 NW 23 (1926).
¶8Although the trial court did instruct that the prosecution had to prove defendant’s guilt, and by implication his presence at the scene of the crime, beyond a reasonable doubt, I remain convinced that the instruction failed to clearly set forth to the jury that such a doubt could arise by virtue of the alibi testimony. On the contrary, the instruction can be reasonably read to have informed the jury that if they rejected the alibi as a perfect defense, they were to consider reasonable doubt solely on the prosecution’s case-in-chief, with total disregard of the alibi evidence presented by the defense. I find the court’s instruction erroneous and grounds for reversal of the conviction.
¶9Finally, I disagree with the majority’s treatment of the trial court’s statement that the "murder weapon” had not been found. The majority appears to argue that since the defense was alibi, a statement that may have been perceived by the jury to have been the court’s personal belief that a murder had been committed was not prejudicial. This argument ignores the prosecution’s duty, in all criminal cases, to prove the elements of the charged offense beyond a reasonable doubt. A defense of alibi is not an admission that a murder *367occurred, it is merely a statement that if such an act was committed, it is not this defendant who is guilty of the crime. Under the reasoning of the majority, could not a trial court instruct a jury, where the defense is alibi, that the prosecution’s case establishes the commission of the crime and that they thus need not deliberate on the elements? I doubt whether any appellate court would uphold such an instruction.
¶10Although I would find the court’s statements to be both erroneous and prejudicial, I would not find them to require reversal. No objection was raised to the court’s apparently inadvertent use of the term "murder weapon”. Had a prompt objection been raised, the court could have corrected its instruction, thereby eliminating any possibility of improperly influencing the jury. People v Humphreys, 24 Mich App 411; 180 NW2d 328 (1970).
¶11 In People v Reed, 393 Mich 342, 348-351; 224 NW2d 867 (1975), the Supreme Court stated that such an instruction is "patently wrong” and grounds for reversal.
¶12 Although the Supreme Court in Reed, supra,held that an instruction that takes away the jury’s right to decide on the existence of an essential element is so fundamentally wrong that harmless error cannot apply, I do not find an error of that magnitude here. The trial court below, unlike the Court in Reed, did instruct the jury on the elements of murder, and left that decision to the jury. The challenged statements were prejudicial only in that they may have suggested the court’s personal views on the issue.