People v. Brown

• Decision Date: 30 August 1972
• Docket Number: No. 3,Docket No. 12838,3
• Citation: 202 N.W.2d 493,42 Mich.App. 608
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Floyd BROWN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 493

202 N.W.2d 493

42 Mich.App. 608

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

Docket No. 12838.

Court of Appeals of Michigan, Division No. 3.

Aug. 30, 1972.

Released for Publication Dec. 11, 1972.

Terrence R. Thomas, Fremont, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward S. Kaplan, Pros. Atty., for plaintiff-appellee.

Before FITZGERALD, P.J., and HOLBROOK and T. M. BURNS, JJ.

HOLBROOK, Judge.

Defendant was convicted by the trial court, sitting without a jury, of breaking and entering with intent to commit larceny in violation of M.C.L.A. § 750.110; M.S.A. § 28.305. He received a sentence of three to ten years in prison.

The only issue raised is whether there was sufficient evidence presented at trial to support the trial court's finding the defendant guilty beyond a reasonable doubt of violating M.C.L.A. § 750.110; M.S.A. § 28.305.

M.C.L.A. § 750.110; M.S.A. § 28.305 states as follows:

'Any person who shall break and enter with intent to commit any felony, or any larceny therein, any tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, structure, boat or ship, railroad car or any private apartment in any of such buildings or any unoccupied dwelling house, shall be guilty of a felony punishable by imprisonment in the state prison not more than 10 years. Any person who breaks and enters any occupied dwelling house, with intent to commit any felony or larceny therein, shall be guilty of a felony punishable by imprisonment in the state prison for not more than 15 years. For the purpose of this section 'any occupied dwelling house' includes one that does not require the physical presence of an occupant at the time of the breaking and entering but one which is habitually used as a place of abode.'

The prosecution's case against the defendant presented at trial is as follows:

Sometime between October 5 and October 13, 1970, the cottage of Jesse and Katherine McFarland, located in Section 13 of Pleasant Plains Township, Lake County, Michigan, was broken into and entered. A Blaupunkt stereo unit with a retail value of $1100 and a Silvertone record player were stolen. Pursuant to a search warrant executed on December 16, 1970, a Blaupunkt stereo unit was found and seized at the residence and in the presence of the defendant. At trial, Mrs. McFarland identified the stereo as being the one taken from her home.

Joseph Moody testified against the defendant. He indicated that he was a resident of the area, that he knew the defendant, and that he had seen the defendant on several occasions between the 8th and 13th of October, 1970. Sometime during the last week in September or the first week in October of 1970, just after the defendant was released from a hospital, the defendant and two men went to Mr. Moody's house and stayed for approximately 2 1/2 to 3 hours. Mr. Moody testified that at that time, the defendant told him 'he was going to get him a record player and a TV' and 'he had went in someplace and seen it, and it was too heavy or something and he had to get some help to go get it.' Defendant told Mr. Moody that he had broken in and he described the record player as a large one made something like a Magnavox. Defendant said that he knew where the record player was and that he was going to get it that night. The defendant and the two men left Mr. Moody's house at approximately 6 p.m. In approximately two hours, defendant and the two men returned to Mr. Moody's house. The defendant told Mr. Moody that he had the record player in the car and he wanted Mr. Moody to go out to the car and see it. 'He said it was a big record player.' Mr. Moody did not go out to the car as he was on crutches. The defendant then said that he was going to take the record player home with him. The next day, the defendant called Mr. Moody on the phone and said 'This is the box.' Mr. Moody testified, 'He wanted me to hear it, so I listened.'

Upon cross-examination, Mr. Moody testified that he had been convicted of first-degree murder five months prior to the defendant's trial. He admitted that he had decided to testify against the defendant when the latter kicked Mr. Moody's little boy. He indicated that he felt the defendant was living off of the ADC money Mrs. Moody received for the support of Mr. Moody's children. He acknowledged that he had written a letter to his wife from the Lake County Jail in which he stated 'I went on the stand against Floyd because you let him misue my children, and it seems that you want me put away for life so that you can let him live off my children.'

The defendant took the stand on his own behalf and testified that he had left the hospital on either the 6th or 7th of October, 1970. He asserted that he could hardly walk at that time and that he was limping. He denied making the statements attributed to him by Mr. Moody. He stated that his wife had bought the stereo while he was in the hospital for the sum of $65 and that she had a bill of sale for it, signed by a Frank Henry. This bill of sale was presented at trial by the prosecution and the defendant was cross-examined concerning it. Neither the defendant's wife nor Frank Henry testified at the trial. The defendant denied committing the crime with which he was charged.

Mr. Moody's wife testified that she was present during the time that defendant alllegedly made the statements concerning the alleged crime to her husband and that she heard no such statements.

The trial court in finding the defendant guilty as charged stated:

'The only question that is before the Court, is has the prosecutor proved beyond a reasonable doubt that Floyd Brown, the defendant in this case, committed the crime. Now, it is not a duty of the prosecutor to prove guilt beyond all doubt. It is only to prove guilt beyond doubt, or a doubt founded in reason, a doubt for which you can give a reason for entertaining. Consequently, the court must look at the testimony which shows whether or not Mr. Brown was the person who committed this crime, which has obviously been established. In this case, we have the fact absolutely that the stereo in question, and which was taken from the McFarlands' house, was found in Mr. Brown's house. Though this does not of itself absolutely convict anybody of anything, it is a substantial fact that the court must consider. This case really boils down to the point, who is the court going to believe as far as the witnesses in this case. Because, for the prosecution to get a conviction in this case, they must prove by the witnesses that Mr. Brown did this beyond a reasonable doubt, and this is the only testimony other than the stereo. The court has listened very intently to the testimony in this case that has been given. And the court in its...