People v. Barnes, Docket No. 8115
| Decision Date | 17 February 1971 |
| Docket Number | Docket No. 8115,No. 1,1 |
| Citation | 30 Mich.App. 586,186 N.W.2d 790 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Feaster C. BARNES, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Charles G. Tangora, Livonia, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.
Before LESINSKI, C.J., and LEVIN and O'HARA, * JJ.
Defendant Feaster Barnes was convicted by a jury of assault with intent to rob being armed. M.C.L.A. § 750.89 (Stat.Ann.1962 Rev. § 28.284). He appeals as of right claiming that the evidence was insufficient to warrant conviction on that charge.
The testimony at trial showed that defendant was hitchhiking when, in exchange for short-cut directions to the Michigan Central Depot, he was given a ride by the complaining witness. The complainant's testimony was that while defendant was giving the directions, En route, the following took place after 15 minutes had elapsed:
'A. Well, he told me to drive on down, and so I started going to the viaduct. He said, 'No, don't go that way, turn here.' * * * So I made a left turn there and by the time I got half way of the block (sic) he put this object around my neck; it looked like a razor to me, shoved into a handle, and he said, 'This is it, old man."
A struggle ensued, the car crashed, and defendant was apprehended by bystanders.
One witness testified that he heard complainant say, after exiting the crashed vehicle, 'That man in there is trying to rob me.' That testimony was not offered to prove the truth of the matter asserted, but to show that an accusation was made to which defendant did not respond. 1
Complainant's testimony was:
'A. He didn't get no money off me (sic).
'Q. He didn't ask for any money, did he?
'A. He didn't ask for any.
'Q. I see.
'A. He just told me, 'Old man, this is it."
In order to sustain a conviction for assault with intent to rob, the specific intent must be proved. People v. Lilley (1880), 43 Mich. 521, 5 N.W. 982; People v. Fleming (1934), 267 Mich. 584, 255 N.W. 305. This intent may be inferred from facts in evidence. Roberts v. People (1870), 19 Mich. 401.
In the instant case it cannot fairly be said that the facts in evidence support a finding of specific intent to rob. The phrase, 'This is it, old man,' in the context in which it was used could have signaled a number of intentions. Complainant's testimony belies defendant's intent to rob. The circumstances surrounding the assault standing alone do not justify an inference of that intent. The jury cannot be allowed to speculate on defendant's intent to commit robbery merely because an assault occurred.
Reversed.
I respectfully disagree with my colleagues.
Specific intent is a state of mind largely unprovable by extrinsic facts. It is almost invariably an inference to be drawn from other facts.
Defendant, in placing an object which resembled a razor at complainant's throat and saying, 'This is it, old man,' evidenced an intent less than amicable toward complainant. This assault coupled with the complainant's Res gestae statement, 'That man in there is trying to rob me,' made within easy earshot of defendant, but undenied by him, furnished ample evidentiary basis for an inference of an intent to rob.
'Silence in face of an accusation is received in evidence under certain circumstances on the theory that such silence indicates acquiesence in the accusation. * * *'
People v. Gisondi (1967), 9 Mich.App. 289, 293, 156 N.W.2d 601.
There is no error. The conviction should be affirmed.
* MICHAEL D. O'HARA, former Associate Justice of the Michigan Supreme...
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