People v. Calvin

• Decision Date: 17 February 1886
• Citation: 60 Mich. 113,26 N.W. 851
• Court: Michigan Supreme Court
• Parties: PEOPLE v. CALVIN.

26 N.W. 851

60 Mich. 113

PEOPLE v. CALVIN.

Supreme Court of Michigan

February 17, 1886

Error to Bay. Mann & Van Kleeck, for defendant and appellant.

MORSE, J.

The respondent in the circuit court for the county of Bay pleaded not guilty to the following information:

"State of Michigan, County of Bay, ss.--The Circuit Court for the County of Bay:

"John E. Simonson, prosecuting attorney for the county of Bay aforesaid, for and in behalf of the people of the state of Michigan, comes into said court in the June term thereof, A.D.1885, and gives it here to understand and be informed that Hulbert Calvin and Skill Doyle, late of the city of Bay City, in the county of Bay, and state of Michigan, heretofore, to-wit: On the seventeenth day of June, in the year 1885, at the city of Bay City, in said Bay county, with force and arms in and upon Louis White in the peace of the people of the state of Michigan, then and there being, feloniously did make an assault, and him, the said Louis White, in bodily fear then and there feloniously did put, and one ten-dollar gold coin of the currency of the United States of America, of the value of ten dollars and to-wit, about two dollars in silver money of the currency of the United States of America, of the value of two dollars, which money complainant is unable to more fully describe, all of the value of twelve dollars, of the goods, chattels, and property of Louis White, then and there from the person, and against the will of him, the said Louis White, feloniously did steal, rob, take, and carry away, contrary to the form of statute in such case made and provided, and against the peace and dignity of the people of the state of Michigan.

"JOHN E. SIMONSON,

"Prosecuting Attorney for the County of Bay."

--Which information was duly verified.

Upon a trial under such information the court instructed the jury that the respondent could not be convicted of robbery, but might be, under the information, if they found the evidence sufficient, found guilty of larceny from the person. He was convicted of the latter crime and sentenced to the state's prison at Jackson for three years. After the evidence was taken, and just previous to this ruling of the court, the counsel for respondent moved to quash the information, but the record is silent as to the reasons stated therefor.

The failure of the court to grant this motion and his instruction to the jury are assigned as error. It is claimed upon the part of the defendant that by this action he was charged and tried for one crime,--robbery,--and convicted of another and totally different one; that larceny from the person is not contained within the charge of robbery, and, also, that the information for the latter offense is fatally defective in its failure to state whether the defendant was armed or unarmed. How.St. �� 9089, 9091.

The counsel for the people insist that the motion to quash was too indefinite and vague, and came too late; that the information was a good common-law information for robbery and that larceny from the person is contained within the common-law offense of robbery as a crime of lesser grade.

It is evident that the information charges neither grade of robbery under our statutes. The crime of robbery is divided into two offenses: one in which the robbery is committed by an assault and robbery from the person, the robber being armed with a dangerous weapon, with intent, if resisted, to kill or maim the person robbed, (section 9089;) the other, in which the offense is perpetrated by force and violence, or by assault or putting in fear, and robbing, stealing, and taking from the person of another, the robber not being armed with a dangerous weapon, (section 9091.)

This information fails to include the necessary constituents of either of these crimes, and under our decisions is worthless unless it can be sustained as a common-law charge of robbery or larceny from the person. Under an information for the statutory offense of breaking and entering a building, with intent to steal, in Hall v. People, 43 Mich. 418 S.C. 5 N.W. 449, it was held as follows: "The legislature has seen fit to enact of what [the offenses] they shall consist, and the presence of all the required components is necessary to mark the presence of the offense. No general description will answer. The crime laid must be so described as to identify it and distinguish it from every other. Here the breaking and entry are not charged as having been done in the night-time, and hence no crime is alleged under Comp.Laws, � 7563. They are not alleged to have been effected in the day-time, and, consequently, no offense is set up under Pub.Acts 1875, p. 131." Judgment upon the information was held erroneous, and the respondent was discharged. See, also, Koster v. People, 8 Mich. 431; People v. Chappell, 27 Mich. 486; People v. Olmstead, 30 Mich. 431; Byrnes v. People, 37 Mich. 515.

If the information charged no crime the court had no jurisdiction to try the accused, and a motion to quash the information could not be too late.

The question now arises whether the common-law offense of robbery exists in this state in view of the statutes above noted. How.St. �� 9089, 9091. The information charges sufficiently the common-law offense. 2 Archb.Crim.Pr. 1295; 2 Bish.Crim.Proc. � 1002. Our statutes seem to carve the crime of robbery under the common law into two grades, as above set forth; and these two divisions of the offense embrace together all of the essential ingredients of the common-law crime. A punishment is affixed to each. It was not the intention of the legislature to create a new crime, but to define two grades of the offense and provide a different punishment for each. Com. v. Clifford, 8 Cush. 217. Having thus covered the crime by statutory definition and punishment, it would seem as if the offense of robbery in this state must be informed against under one or the other of these statutes. We must consider the common-law crime superseded by the statute, and punished only when prosecuted under one of the provisions of the statute; and the offense must be laid in conformity therewith. Bish.St.Cr. � 520.

There is no other punishment provided for robbery. We are corroborated in this view of the intention of the legislature by the general statute which provides in effect that every indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be punished as a misdemeanor. How.St. � 9434. It certainly was not the intention of the legislature to class any kind of robbery, or punish the same, only as a misdemeanor. It follows, then, that a common-law information for robbery is not permissible in this state, but the crime must be laid under the statute.

Under this view of the case it remains to be seen whether or not...