People v. Brager

• Decision Date: 28 November 1978
• Docket Number: Docket No. 29113
• Citation: 87 Mich.App. 321,273 N.W.2d 925
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles BRAGER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 925

273 N.W.2d 925

87 Mich.App. 321

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles BRAGER, Defendant-Appellant.

Docket No. 29113.

Court of Appeals of Michigan.

Nov. 28, 1978.

Released for Publication Jan. 25, 1979.

Alvin C. Sallen, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., by Anne Wetherholt, Asst. Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, P. J., and V. J. BRENNAN and CAVANAGH, JJ.

PER CURIAM.

Defendant was charged in a one-count information with the offense of breaking and entering an occupied dwelling with the intent to commit a larceny therein, contrary to M.C.L. § 750.110; M.S.A. § 28.305.

Carlton Clayburn testified that he resides at 17621 Meyers, Detroit, Michigan, and that on November 6, 1975, he left for work after having secured his home. He further testified that he identified certain of his personal property at the 12th Police Precinct subsequent to the breaking and entering and stated the said property was in his dwelling at the time he left for work.

There was evidence that a police officer viewed the defendant entering the rear door of complainant's home and later placing various objects on the rear seat of a car parked in the alley. Defendant was arrested after a high-speed automobile chase.

Defendant was convicted of the offense charged in a jury trial and was sentenced to a term of from 10 to 15 years in prison and now appeals as of right.

The trial court charged the jury on the charged offense and also on the charge of entering without breaking an occupied dwelling with the intent to commit larceny therein. The defendant claims error in the trial court's refusal to instruct the jury on the charge of breaking and entering an unoccupied dwelling (building) with the intent to commit larceny therein, and the further charge of larceny from a building.

We first deal with the failure of the trial court to instruct on the offense of breaking and entering of an unoccupied dwelling (building) with intent to commit a larceny therein.

In People v. Jones, 395 Mich. 379, 390, 236 N.W.2d 461, 465 (1975), our Supreme Court defined the term "necessarily included offenses" as follows:

"The duty of the trial judge to instruct on lesser included offenses is determined by the evidence. People v. Phillips, 385 Mich. 30, 187 N.W.2d 211 (1971). If evidence has been presented which would support a conviction of a lesser included offense, refusal to give a requested instruction is reversible error. Id. at 36, 187 N.W.2d 211, People v. Hamilton, 76 Mich. 212, 42 N.W. 1131 (1889).

"If the lesser offense is one that is necessarily included within the greater, the evidence will always support the lesser if it supports the greater."

In order for the offense of breaking and entering an unoccupied dwelling to be a lesser offense necessarily included within the offense of breaking and entering an occupied dwelling, then, the evidence adduced at trial must support a conviction of the defendant for the former offense. Defendant contends that the two offenses are identical except that conviction of the latter requires proof of an additional element: occupation. This is not the case, however.

The two offenses codified by M.C.L. § 750.110; M.S.A. § 28.305 are of separate and independent origin. Common-law burglary was the antecedent of the statutory offense of breaking and entering an occupied dwelling: as such that offense is clearly an offense against habitation. People v. Winhoven, 65 Mich.App. 522, 526-527, 237 N.W.2d 540 (1975); 12 C.J.S. Burglary § 16, p. 678. Breaking and entering an unoccupied dwelling is a similar but clearly distinct offense, clearly an offense against property. As noted in 12 C.J.S. Burglary § 23, pp. 683-684:

"Where there are statutes punishing burglary of a dwelling house, and also other provisions punishing as a separate offense the breaking and entry of a store or other building 'not adjoining to or occupied with a dwelling-house,' it is a necessary element of the latter offense that the building broken into should not adjoin, nor be occupied as, a dwelling house." (Footnote omitted.)

The Michigan Supreme Court has adopted this approach in interpreting the statutory forerunners of M.C.L. § 750.110. In Koster v. People, 8 Mich. 431, 432-433 (1860), the Court said:

"It is a plain principle of law, that where the statutes enumerate several elements as combining to create a crime, the crime can not properly be described without including all these elements. An entry into a shop or warehouse in the night, with intent to commit a felony, is not a crime under this statute, unless it also appears that the shop or warehouse is neither adjoining to nor occupied with a dwelling. Burglary, at common law, must be committed in such a place as is within the definition of a dwelling, which term has received an enlarged signification. Entering other buildings was not regarded in the same light. In making a new crime, the legislature have seen fit to...