People v. Brown, Docket No. 25320

• Decision Date: 10 December 1976
• Docket Number: Docket No. 25320
• Citation: 72 Mich.App. 749,250 N.W.2d 522
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert BROWN, Defendant-Appellant. 72 Mich.App. 749, 250 N.W.2d 522
• Court: Court of Appeal of Michigan — District of US

Page 522

250 N.W.2d 522

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert BROWN, Defendant-Appellant.

Docket No. 25320.

72 Mich.App. 749, 250 N.W.2d 522

Court of Appeals of Michigan.

Dec. 10, 1976.

Released for Publication Feb. 28, 1977.

[72 MICHAPP 749] Gene R. Myers, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

[72 MICHAPP 750] Before R. B. BURNS, P.J., and QUINN and BEASLEY, JJ.

QUINN, Judge.

Defendant was charged with breaking and entering a store building with intent to commit larceny, M.C.L.A. § 750.110; M.S.A. § 28.305, and was tried before a jury for that offense. Convicted as charged and sentenced, he appeals.

Defendant requested instructions on the claimed included offenses of larceny in a building and attempted larceny in a building. The trial judge declined to give the latter instruction, although he did instruct on larceny in a building. Defendant asserts reversible error because the trial court refused to instruct on attempted larceny in a building.

We find no error. Neither larceny in a building nor attempted larceny in a building is an offense included in a charge of breaking and entering a store building with intent to commit larceny, People v. Keatts, 54 Mich.App. 618, 221 N.W.2d 455 (1974). ¹ They are offenses separate and distinct from breaking and entering. People v. Huffman, 315 Mich. 134, 23 N.W.2d 236 (1946).

Breaking and entering a store building with intent to commit larceny can be established without proof of a larceny or attempted larceny, People v. Lambo, 8 Mich.App. 320, 154 N.W.2d 583 (1967). So neither of the latter offenses is a 'necessarily' included offense, see People v. Jones, 395 Mich. 379, 236 N.W.2d 461 (1975). Nor is either a 'cognate' lesser included offense, as that terminology is used in Jones, supra. Larceny and attempted larceny are not in the same category of crime as [72 MICHAPP 751] breaking and entering. The gist of the latter crime is the breaking and entering while the gist of larceny or attempted larceny is a taking with intent to deprive.

The jury verdict was guilty 'on the breaking and entry'. Because the verdict as stated failed to repeat the rest of the statutory language defining the offense, defendant claims reversible error. This does not constitute reversible error, People v. Lopez, 65 Mich.App. 653, 237 N.W.2d 599 (1975). Additionally, if defendant intended to question the form of the verdict, that should have been done at trial and not for the first time on appeal.

The record establishes that the trial judge exercised discretion in his...