People v. Clark
| Decision Date | 06 April 1982 |
| Docket Number | Docket No. 58627 |
| Citation | 113 Mich.App. 477,317 N.W.2d 664 |
| Parties | The PEOPLE of the State of Michigan, Plaintiff-Appellant. v. Stanley Wayne CLARK, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Counsel, Asst. Pros. Atty., and Geoffrey H. Nickol, Asst. Pros. Atty., for the People.
David A. Gordon, Oak Park, for defendant-appellee on appeal.
Before V. J. BRENNAN, P. J., and ALLEN and MEGARGLE, * JJ.
Defendant was charged with the following offenses: Count I, Armed Robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797; Count II, Larceny with Safe Damage, M.C.L. Sec. 750.531; M.S.A. Sec. 28.799. At the preliminary examination the defendant was bound over as charged on Count II, but the magistrate bound defendant over on felonious assault and breaking and entering a motor vehicle, instead of armed robbery.
The issue is whether or not the preliminary examination magistrate abused his discretion in refusing to bind defendant over on an armed robbery count.
The evidence presented at the preliminary examination revealed that the complaining witness, a truck driver named MacDonald, made a delivery of beer to a store. After the delivery, Mr. MacDonald went to the manager's office to get paid, a procedure which normally took ten to twelve minutes. As he walked back to his truck from the office, he heard a truck driver on the other side of the parking lot sound his horn once. This seemed very unusual to Mr. MacDonald, so he went directly to his truck.
While approximately 25 feet from his truck, Mr. MacDonald saw a man approximately one foot from his truck. The man was turning away and walking away from the truck. The truck door was open. Mr. MacDonald continued walking toward his truck and came within ten to fifteen feet of the man at which point the man, who was later identified as the defendant by Mr. MacDonald, raised a crowbar he carried in his hand and said, "Come any closer and I'll bash your brains out". At this point Mr. MacDonald stopped walking, the man turned away to run, and Mr. MacDonald gave chase. At this particular point in time, Mr. MacDonald did not know whether or not the defendant had taken anything from his truck. Only later did he learn the safe in his truck had been forced open and approximately $400 had been taken.
This case was bound over to Oakland County Circuit Court. The prosecutor filed a motion to amend the Information, requesting that the Court add the count of armed robbery. The motion was denied. The Circuit Judge held that the magistrate did not abuse his discretion in the matter.
The issue addressed another way is whether or not a victim though assaulted, must have knowledge that property of his had been taken in order to support a charge of armed robbery. This appears to be a case of first impression.
The essential elements of armed robbery are set forth in M.C.L. Sec. 750.529; M.S.A. Sec. 28.797 and are as follows: One, an assault by the defendant upon the complainant; two, a felonious taking of any property which may be the subject of a larceny from the complainant's person or in his presence; and three, that the defendant was armed with a dangerous weapon. People v. Smedley, 37 Mich.App. 325, 194 N.W.2d 383 (1971).
The People contend that Michigan employs the "transaction" test for armed robbery, which provides that a taking is not considered complete until the assailant has effected his escape because the victim is still considered in possession of his property. People v. Beebe, 70 Mich.App. 154, 245 N.W.2d 547 (1976). They claim actual physical possession of the property by the victim is not required. The defendant maintains that in no case has armed robbery been found where the victim was assaulted after the taking had been accomplished and where the victim did not know why he was being assaulted because he did not have knowledge that anything had...
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