236 N.W.2d 509 (Mich. 1975), 10, People v. Mann

Docket Nº:10, .
Citation:236 N.W.2d 509, 395 Mich. 472
Opinion Judge:T. G. KAVANAGH, Chief Justice.
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert MANN, Defendant-Appellant.
Attorney:[395 Mich. 474] Donald A. Burge, Pros. Atty. by Stephen M. Wheeler, Chief of App. Div., Kalamazoo, for plaintiff-appellee. Daudert & Barron by Michael O'N. Barron, Kalamazoo, for defendant-appellant.
Case Date:December 18, 1975
Court:Supreme Court of Michigan

Page 509

236 N.W.2d 509 (Mich. 1975)

395 Mich. 472

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Robert MANN, Defendant-Appellant.

No. 10, .

Supreme Court of Michigan.

December 18, 1975

Page 510

[395 Mich. 474] Donald A. Burge, Pros. Atty. by Stephen M. Wheeler, Chief of App. Div., Kalamazoo, for plaintiff-appellee.

Daudert & Barron by Michael O'N. Barron, Kalamazoo, for defendant-appellant.

T. G. KAVANAGH, Chief Justice.

Defendant was arrested for larceny in a building, M.C.L.A. § 750.360; M.S.A. § 28.592, after walking out of a store in Kalamazoo with a box containing a tape recorder, unconcealed, under his arm. Defendant testified that he saw a friend (Van Johnson) in the store who was overburdened with packages. The friend handed [395 Mich. 475] the box to defendant and asked him to carry it out to his car, and then give him a ride home. When defendant left the store, he was apprehended, could not produce a sales receipt for the tape recorder and was arrested. The friend did not testify at trial.

Defendant was convicted by a jury and sentenced to imprisonment. The Court of Appeals affirmed.

On appeal to this Court defendant alleges that it was error for the trial court to instruct the jury on aiding and abetting when neither party had requested such an instruction, that theory had not been advanced at trial, and there was no opportunity to argue the matter to the jury.

The gist of defendant's argument is not that the instruction given on aiding and abetting incorrectly stated the law, but rather that no instruction on aiding and abetting was justified by the evidence and the trial judge did not inform counsel before closing arguments that such instruction would be given. Therefore, defendant had no opportunity to rebut that charge, or to submit instructions on aiding and abetting. Defense counsel objected to the instruction immediately, but that objection was overruled.

The prosecution argues that it was defendant's own testimony and defense counsel's closing argument which justified the aiding and abetting instruction. It is contended that by testifying that Van Johnson had handed him the tape recorder, defendant himself provided evidence of a concert of action.

To counter appellant's contention that the error consisted of not informing counsel before closing argument of the court's intention to instruct on aiding and abetting, the prosecution alleges that it [395 Mich. 476] was in fact defendant's closing argument that necessitated the instruction. Defense counsel argued to the jury that Van Johnson might have stolen the tape recorder, if it was stolen at all, and that defendant did not know anything about it. That possibility, according to defense counsel's argument to the jury, 'should be ruled out before you can find Robert Mann guilty of anything'.

The prosecution contends that such a statement was an incorrect statement of the law, leaving the jury with the belief that if they found that Johnson stole the recorder, they would be required to acquit the defendant. This argument, the prosecution claims, Required the court to correct that erroneous impression, and tell the jury that they could find that the two acted in concert and thereby still convict defendant of larceny.

M.C.L.A. § 768.29; M.S.A. § 28.1052 states:

'It shall be the duty of the judge to...

To continue reading

FREE SIGN UP