218 N.W.2d 847 (Mich.App. 1974), 17305, People v. Marshall

Docket Nº:Docket No. 17305.
Citation:218 N.W.2d 847, 53 Mich.App. 181
Opinion Judge:Before HOLBROOKand ALLEN and VanVALKENBURG, JJ
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry MARSHALL, Defendant-Appellant.
Judge Panel:Before HOLBROOK, P.J., and ALLEN and VanVALKENBURG,[*] JJ.
Case Date:May 01, 1974
Court:Court of Appeals of Michigan

Page 847

218 N.W.2d 847 (Mich.App. 1974)

53 Mich.App. 181

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Jerry MARSHALL, Defendant-Appellant.

Docket No. 17305.

Court of Appeals of Michigan, Division No. 2.

May 1, 1974

Released for Publication June 19, 1974.

Page 848

Michael A. Mason, [53 Mich.App. 182] Mason & Mason, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief, Asst. Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and ALLEN and VanVALKENBURG,[*] JJ.

HOLBROOK, Presiding Judge.

After being tried jointly, defendant Marshall and a codefendant were convicted of larceny from a building, M.C.L.A. § 750.360; M.S.A. § 28.592, by a jury in Genesee County Circuit Court. Defendant was sentenced to a term of 32 months to 4 years in prison and appeals as of right.

[53 Mich.App. 183] The defendant and one Harold R. Haywood were charged with larceny from a J. L. Hudson Store in Flint Township, Genesee County. The defendant and Haywood were both represented by the same counsel at trial.

The major witness called by the prosecution was a security investigator at the Hudson Store. This investigator, Bernard Teachout, testified that on the evening in question he was situated in an observation booth above the selling area of the store's men's department. He testified that he observed the defendant and Haywood enter the department, walk to a clothes rack and remove clothing therefrom. He testified that Haywood removed a suit jacket and two pairs of pants from a hanger on the rack. The suit coat was handed to defendant Marshall. He testified that Marshall concealed the suit coat underneath the jacket he was wearing and that Haywood concealed the pants under his jacket. Thereafter, the two proceeded to walk through the exit of the store and into the parking area. After calling for assistance, Teachout descended from the observation

Page 849

booth and followed the defendant and Haywood into the parking area. An officer in a Genessee Valley Mall patrol car, who had responded to Teachout's request, called for the subjects to halt. From the testimony presented, it appears that Haywood stopped, whereas the defendant 'took off running'. Defendant was apprehended approximately 100 feet farther into the parking lot. During this scene, the suit jacket dropped 'from underneath Marshall's coat', according to Teachout.

While the defendant was being apprehended, Haywood was apprehended by two other security officers. One of these officers testified that he recovered two pairs of slacks from underneath a [53 Mich.App. 184] vehicle in the parking lot. When he was apprehended Haywood was standing in front of the vehicle, approximately 'ten feet' from the clothing. No one had seen Haywood drop or throw the clothing.

At trial defendant did not testify. Haywood testified that he did not take any clothing from the store. He stated that he and the defendant had entered and left the store together. According to him, while in the men's department, the defendant was in a different area while he was trying on suede jackets.

In his charge to the jury, the trial court included an instruction on aiding and abetting. Defense counsel moved for a mistrial, asserting that he was unaware that that was an issue in the case. The court responded that the instruction would have to remain, and stated:

'I think that the significance is that it is not necessarily an expansion upon the proofs, but rather is a justifiable instruction in a situation comparable to the one that we have before us, where there is an allegation that two parties joined together in the commission of a felony; and I'd have to deny the request.'

I

Does the inclusion of the instruction as to aiding and abetting constitute reversible error?

Defendant asserts that the evidence presented at trial supported only either the theory that the defendant was guilty of larceny as a principal or was not guilty of the alleged larceny in any way. He says that, based on Haywood's testimony that he took no clothes and the prosecution's presentation, there may have been an issue as to whether Haywood could have been convicted as an aider [53 Mich.App. 185] and abettor to the defendant. He asserts that in this context the questioned instruction would have been proper had the trial judge limited the consideration of aiding and abetting only to Haywood.

'The office of the charge is...

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