People v. Allen, 162.
| Decision Date | 02 December 1930 |
| Docket Number | No. 162.,162. |
| Citation | 233 N.W. 412,252 Mich. 553 |
| Parties | PEOPLE v. ALLEN. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Kent County; Willis B. Perkins, Judge.
Arthur Allen was convicted of larceny, and of receiving stolen property, and he brings error.
Reversed, and judgment set aside, and new trial granted.
Argued before WIEST, C. J., and BUTZEL, CLARK, McDONALD, POTTER, SHARPE, NORTH, and FEAD, JJ.Edward G. Burleson and Julius J. Herscher, both of Grand Rapids, for appellant.
Wilber M. Brucker, Atty. Gen., and Bartel J. Jonkman, Pros. Atty., and Arthur R. Sherk, Asst. Pros. Atty., both of Grand Rapids, for the People.
The information contained two counts. In the first defendant was charged with the larceny of personal property of the value of $152, and in the second with the receiving of such property, knowing it to be stolen. The court in his instructions to the jury carefully defined both offenses. The jury rendered a verdict of ‘guilty as charged.’
Defendant's counsel thereafter, and before sentence, moved for his discharge, because by the verdict the jury found him guilty of both offenses. The motion was denied and defendant sentenced to imprisonment for not less than two and one-half years and not more than five years, with a recommendation that he serve the two and one-half years.
The only error assigned is upon the denial of the motion. It was unfortunate that the verdict as rendered by the jury was received and entered upon the records of the court. In the hurry of court business, the nature of the charge was overlooked by the court when it received the verdict.
Under our statute (Act No. 175, Pub. Acts 1927, c. 7, § 69) a count for receiving the stolen property, knowing it to have been stolen, may be added where larceny is charged, and the jury may find the accused person guilty of either of these offenses. They are, however, distinct offenses, and a conviction on one count works an acquittal on the other. The same person may not be the thief who stole the property and the person who received it from the thief, knowing it to have been stolen. Under the verdict rendered, a part of the jury might have found the defendant guilty of the larceny, and the rest of the jury might have found him guilty of receiving the stolen property.
In re Henry Franklin, 77 Mich. 615, 617, 43 N. W. 997, 998, it was said:
While reference was made to the fact that under the then statute a different punishment might be imposed on the charge as receiver, there is no intimation that the rule stated would not apply when the same...
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