People v. Bradovich

• Decision Date: 18 May 1943
• Docket Number: No. 94.,94.
• Citation: 9 N.W.2d 560,305 Mich. 329
• Parties: PEOPLE v. BRADOVICH et al.
• Court: Michigan Supreme Court

305 Mich. 329

9 N.W.2d 560

PEOPLE

v.BRADOVICH et al.

No. 94.

Supreme Court of Michigan.

May 18, 1943.

George Bradovich and Edward Fognini were convicted of an attempt to commit the crime of larceny in a store, and they appeal.

Affirmed.

Appeal from Recorder's Court for the City of Detroit; Hon John P. Scallen, Judge.

Before the Entire Bench.

Stuart D. Hubbell, of Detroit (Harry C. Hanley, of Detroit, of counsel), for appellants.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Solicitor Gen. of Lansing, and William E. Dowling, Pros.Atty. of Wayne County, and George A. Beauchamp and Henrietta E. Rosenthal, Asst. Pros.Attys., all of Detroit, for the People.

WIEST, Justice.

An information in the recorder's court for the city of Detroit charged defendants with the crime of larceny in a store, of three men's suits of the total value of $113.The offense charged was laid under § 360, chap. 52, of the criminal code, ActNo. 328, Pub.Acts 1931 (Stat.Ann. § 28.592).Defendants waived trial by jury and upon trial before the court were found guilty of an attempt to commit the crime mentioned.On appeal defendants claim error because the information did not charge an attempt to commit, but only larceny consummated.

The evidence disclosed that defendants were in the store of the Bond Clothing Company, located at 1000 Woodward avenue in the city of Detroit, and were observed by a salesman, taking clothing from a rack and concealing it beneath their own clothing.The salesman notified the manager who posted men at the exits from the room on the second floor, where defendants took the clothing, and stopped the elevator, notified the police, who arrived within five or six minutes, and then the manager and the police went to the second floor in the elevator and there saw defendants walking toward a table in the front part of the room where defendants removed the stolen property from beneath their clothing, and laid the same on the table.Under the evidence defendants were clearly guilty of larceny, and the question is whether they could be convicted of the lesser offense of attempt to commit that crime without a count to such effect in the information.There is no merit in the point.

We held in People v. Rose, 268 Mich. 529, 256 N.W. 536, that: ‘Conviction may be had of lessor offense not charged in information where it is necessarily included within greater offense that is charged.’(Syllabus.)

In People v. Baxter, 245 Mich. 229, 222 N.W. 149, 150, we said:

‘Defendant invokes the rule, operative in some jurisdictions by judicial holdings, and in others by statute, that there can be no conviction of an attempt to commit a felony, if the evidence establishes consummation of the felony.This is the rule in Illinois.People v. Lardner, 300 Ill. 264, 133 N.E. 375, 19 A.L.R. 721.But the rule is not general, and does not prevail in this jurisdiction.If an information admits of conviction of an attempt to commit a felony, an accused may be found guilty of the attempt, though the evidence shows a completed offense.People v. Miller, 96 Mich. 119, 55 N.W. 675;People v. Blanchard, 136 Mich. 146, 98 N.W. 983.Such a verdict may be illogical, but the people cannot complain, and the defendant must accept it, even though less in measure than his just deserts; at least he cannot be heard to say that he has suffered injury.

‘In People v. Hoover, 243 Mich. 534, 220 N.W. 702, defendant was convicted of an assault, and it was urged ‘that, under the proofs, defendant was either guilty of taking indecent...