People v. Bowen
Decision Date | 22 March 1968 |
Docket Number | Docket No. 1361,No. 1,1 |
Citation | 10 Mich.App. 1,158 N.W.2d 794 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sherrel BOWEN and William Rouse, Defendants-Appellants |
Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Wayne County, Thomas P. Smith, Asst. Pros. Atty., Wayne County, Detroit, for appellant.
Talbot M. Smith, Chelsea, for appellee.
Before LESINSKI, C.J., and HOLBROOK and LEVIN, JJ.
Defendants, Sherrel Bowen and William Rouse, appeal their convictions of attempted larceny in a building.
On January 19, 1965, at approximately eight o'clock p.m., the defendants and two female companions were admitted to the home of one Matilda Gatzmeyer, an 80 year old woman. The defendants' car was observed parked in front of Miss Gatzmeyer's residence and a neighbor, believing the defendants to have designs upon her property, called the police. Two police officers arrived and entered the home along with the neighbor. 1 The defendants were found in the rear of the house near or on the basement steps. The two female companions were seated on either side of Miss Gatzmeyer, apparently engaged with her in conversation. The bedroom of the house was in a state of disarray.
The police ordered defendants to come to the front of the house and sit in the living room. Defendant Rouse seated himself within a foot of the TV, and some time thereafter one of the police officers spotted under the TV set two rings belonging to Miss Gatzmeyer. The neighbor testified she found a necklace on the staircase near where defendant Bowen had been standing when he was first sighted by the police. When the neighbor's discovery was called to the attention of one of the police officers, he and Miss Gatzmeyer went to the staircase and found the necklace in that location.
After interrogation, the defendants were arrested and charged with larceny of 'rings and a necklace' in a building in violation of C.L.1948, § 750.360 (Stat.Ann.1954 Rev. § 28.592).
Bowen had been to the Gatzmeyer home on a number of prior occasions, ostensibly as a hardy man, the same reason he gave Miss Gatzmeyer for appearing on the night in question. Miss Gatzmeyer testified that on this occasion the defendants sought to hire themselves out to clean and to do some masonry work on the chimney. She complained about the high prices charged by Bowen and his failure to do work as agreed, and that Bowen's helper (the role allegedly filled by Rouse at the time of the incident) generally helped himself to things that belonged to her.
The neighbor testified that she had met Bowen on three occasions prior to the one in question and that on one occasion Bowen had induced Miss Gatzmeyer to go with him to the bank, but it was not clear whether the visit to the bank was to withdraw money to pay Bowen that which was due him or unlawfully to separate Miss Gatzmeyer from her money.
The neighbor testified that she visited with Miss Gatzmeyer daily and assisted her in various chores and generally in getting around. She stated that when she and the police officers arrived on the night in question the dresser drawers in the bedroom were all pulled out and everything thrown all over the bed. This was not the way Miss Gatzmeyer generally kept the house according to the neighbor: 'she has a very neat house, everything is in its place.' The neighbor further testified that 'after Miss Gatzmeyer cleaned up (presumably after the police left) she found more jewelry back of the pillows' on the couch Bowen sat on during his interrogation by the police.
Miss Gatzmeyer testified that the defendants removed the jewelry from her bedroom without her consent.
At the beginning of his charge to the jury, the trial judge stated that because he doubted whether the case properly could be submitted to the jury on the original charge of larceny in a building he had decided to submit it to the jury solely on the included offense of attempt to commit larceny in a building.
There was sufficient evidence to support the defendants' conviction of attempt to commit larceny. The jury could property infer from the testimony that the defendants did in fact ransack Miss Gatzmeyer's bedroom and furniture without her permission, remove the 2 rings which were found under the TV set, and the necklace found on the staircase. Such a finding would justify conviction of attempted larceny, the elements of which are a felonious intent to commit larceny (People v. Hillhouse (1890), 80 Mich. 580, 45 N.W. 484) and an overt act going beyond mere preparation towards the commission of the crime (People v. Youngs (1899), 122 Mich. 292, 81 N.W. 114, 47 L.R.A. 108; People v. Coleman (1957), 350 Mich. 268, 276, 86 N.W.2d 281). 2 It is the jury's function to weigh the evidence and to determine therefrom whether such intent is manifest (People v. Hillhouse, supra, 80 Mich. p. 587, 45 N.W. 484), and in doing so the jury may draw reasonable inferences from the facts (People v. O'Hara (1936), 278 Mich. 281, 302, 270 N.W. 298; People v. Davis (1922), 217 Mich. 661, 668, 187 N.W. 390).
The trial judge did, as defendants assert, permit the prosecution to lead Miss Gatzmeyer freely in her testimony. Examining the record carefully, and under the somewhat unusual circumstances presented, we do not find an abuse of the discretion confided to the trial judge in that regard.
'Within the discretion of the court no question asked of a witness shall be deemed objectionable solely because it is leading.' C.L.1948 § 768.24 (Stat.Ann.1954 Rev. § 28.1047).
We do find error in the judge's failure properly to charge the jury on the necessity of finding an overt act. 3 It has been said that the overt act 'is the essence of the offense' 4 or the 'gravamen of the offense.' 5 Not only did the trial judge fail to charge the jury at all concerning the necessity of finding an overt act, but he also incorrectly charged that the jury could convict if it found that the defendants came to or entered Miss Gatzmeyer's house with the intention of committing larceny.
During the charge, the trial judge stated:
'The theory of the people is that the evidence in this case, that is, the age of the complainant, Mrs. Gatzmeyer, the lateness of the visit to the house, the presence of two women to talk to the complainant, and the condition of the bedroom which it is claimed indicated ransacking and the attempt of the defendants to hide when the police were called, bear upon and indicate that the two defendants Came there with the intention of committing larceny in the dwelling. The offense of larceny isn't clear but the attempt to commit larceny, it is charged by the People, represented by Mr. Mazer, is clear.
(Emphasis supplied.)
There was ample evidence from which the jury could have found felonious intent. There are the circumstances related by the judge in his charge, as well as the other evidence previously set forth in this opinion. We must assume that, in convicting the defendants, the jury followed the judge's instructions and found the requisite felonious intent.
In the absence of a request (see part III of this opinion), the trial judge's failure to charge the jury on the necessity of finding commission of an overt act, as a separate ingredient or element, might not be error if he were correct in charging the jury that if it found defendants 'came' to or 'entered' Miss Gatzmeyer's house with intent to commit larceny it could bring in a verdict of guilty. If defendants' coming to, or entering, Miss Gatzmeyer's house with felonious intent was an 'overt act', the jury verdict of guilty could be viewed as a finding of the requisite overt act. 6
Thus, the narrow question before us is whether the defendants when they came to or entered Miss Gatzmeyer's house with the intent to commit larceny committed an overt act that would support their conviction of attempted larceny. In our opinion, their mere coming to or entry of Miss Gatzmeyer's house was not an overt act, under the circumstances that Mr. Bowen and other helpers had rightfully been in the house on prior occasions and were admitted to the house by Miss Gatzmeyer on the night in question.
Whether the defendants came to or entered Miss Gatzmeyer's house with a felonious intent is, of course, a question of fact to be decided by the jury. However, whether the facts found by the jury constitute an overt act, or whether the jury from particular circumstances could find that an overt act had been committed, is a question of law to be decided by the court.
In People v. Coleman, supra, the Supreme Court stated that a defendant may not be convicted of an attempt unless he has 'gone beyond acts of an ambiguous nature' or those that are 'equivocal', 7 and that a 'thoughtful test for the resolution of the equivocal act has been phrased by Turner in his article, 'Attempts to Commit Crimes' in 5 Camb.LJ, 230, 237, (238,) in these words:
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