247 N.W.2d 341 (Mich.App. 1976), 25461, People v. Benevides

Docket Nº:Docket No. 25461.
Citation:247 N.W.2d 341, 71 Mich.App. 168
Opinion Judge:before J H GILLISand T M BURNS and VanVALKENBURG, JJ
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rene BENEVIDES, Defendant-Appellant.
Attorney:[71 Mich.App. 170] Larry L. Emmert, Wyandotte, for defendant-appellant.
Judge Panel:Before closing, however, we must examine the charge as a whole. On appeal, it is well established that instructions must be read in their entirety [71 Mich.App. 176] and not solely as isolated sections or sentences. People v. Dye, 356 Mich. 271, 96 N.W.2d 788 (1959); People v. Iron, 26 Mich.App. ...
Case Date:September 08, 1976
Court:Court of Appeals of Michigan

Page 341

247 N.W.2d 341 (Mich.App. 1976)

71 Mich.App. 168

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Rene BENEVIDES, Defendant-Appellant.

Docket No. 25461.

Court of Appeals of Michigan.

September 8, 1976

Released for Publication Dec. 14, 1976.

Page 342

[71 Mich.App. 170] Larry L. Emmert, Wyandotte, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Asst. Pros. Atty., Charles P. Kellett, Asst. Pros. Atty., for plaintiff-appellee.

before J. H. GILLIS, P.J., and T. M. BURNS and VanVALKENBURG, [*] JJ.

VanVALKENBURG, Judge.

The defendant was jury convicted of breaking and entering an occupied dwelling on February 11, 1975, M.C.L.A. § 750.110; M.S.A. § 28.305, and sentenced to a term of from five to fifteen years.

For a clear understanding of the issues, a brief statement of fact is essential. While the owner of the house broken into was on vacation on December 3, 1974, it was being watched by residents who lived two doors away. At about 9:30 that evening neighbors observed a pickup truck in the drive, lights being turned on and the side door open. They called the police, but the intruders left before they arrived. The neighbor followed the pickup in his own car for about three miles, where it stopped in the parking lot of a donut shopt. The police found two men there, one standing and the other underneath the vehicle, apparently attempting to make repairs. Jewelry taken

Page 343

from the former and a television set in the truck were identified as articles missing from the home. A search of [71 Mich.App. 171] the defendant, the man beneath the pickup, disclosed a key ring and a silver dollar which were also identified by the homeowner.

The defendant's companion pled guilty to the charge and claimed that a Ronnie Olson was with him at the time of the break-in and had disappeared. His story was told after several conversations with the defendant. He admitted that he perjured himself at the time the information was given to the police, but insisted that he had given the coin and key chain to the defendant before defendant attempted to make the alleged repairs. The defendant did not take the stand in his own defense during the trial.

The trial judge denied a motion for a directed verdict. Hence, the first issue is whether or not this action was proper.

The trial judge, in considering such a motion, must first decide if there is evidence from which the jury can reasonably infer all the elements of the charged crime. People v. Compton, 23 Mich.App. 42, 178 N.W.2d 133 (1970); People v. Kyllonen, 66 Mich.App. 467, 239 N.W.2d 410 (1976).

On appeal, the reviewing court in passing on a motion for directed verdict must: (1) consider only the evidence which has been introduced at the time the motion was made; (2) view that evidence in the light most favorable to the prosecutor; and (3) determine whether that evidence, if creditable and believed, would justify a reasonable man in concluding...

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