People v. Emilson, 142.

• Decision Date: 22 December 1925
• Docket Number: No. 142.,142.
• Citation: 233 Mich. 279,206 N.W. 545
• Parties: PEOPLE v. EMILSON.
• Court: Michigan Supreme Court

233 Mich. 279

206 N.W. 545

PEOPLE

v.EMILSON.

No. 142.

Supreme Court of Michigan.

Dec. 22, 1925.

Error to Circuit Court, Barry County; Russell R. McPeek, Judge.

Alfred Emilson was convicted of breaking and entering a garage with intent to steal. and he appeals. Affirmed.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Calvin L. Bancroft, of Hastings (Wm. E. Ware, of Battle Creek, of counsel), for appellant.

Andrew B. Dougherty, Atty. Gen., and Kim Sigler, Pros. Atty., of Hastings, for the People.

McDONALD, C. J.

The defendant was convicted under an amended information which charged that on the 9th of March, 1925, at the village of Delton, Barry county, in the nighttime, he unlawfully and willfully did break and enter the garage of Frank Doster and William Smith with intent to steal their goods and chattels there being found, the said garage not adjoining to or occupied as a dwelling house. The information contained a count for larceny, but that was withdrawn during the trial by the prosecuting attorney.

After conviction there was a motion in arrest of judgment and for the discharge of the defendant. This motion the court denied, and sentenced the defendant to a term in the Michigan Reformatory at Ionia. The claim of error is stated by the defendant in his brief as follows:

‘When arraigned under the information, and before the charge of larceny was eliminated from it, the defendant pleaded not guilty to it, and he contends that after the charge of larceny was eliminated from it the information did not charge him with the commission of any crime or offense defined by the statute or by common law; that entering a ‘garage’ not adjoining to or occupied with a dwelling house, by breaking, or without breaking, whether in the nighttime or daytime, with intent to commit the crime of larceny, is not a crime or offense of any character, either under the statute or common law; that at the time, ‘on or about the 9th day of March, A. D. 1925,’ mentioned in the information as the time when the defendant entered the garage with the intent stated, a ‘garage’ was not a building protected from such entry with such intent by any statute in force in this state, and it was not a crime or offense at common law to so enter a garage.'

The information is apparently based on the following statute:

‘Every person who shall break and enter with intent to commit any felony or larceny therein, any dwelling house, office, store, shop, warehouse, mill, factory, boat, vessel, depot, freight house, meeting house, church, courthouse, college, academy, or other building or structure, used or kept for private or public use, or any person who shall, without breaking, steal in any dwelling house, office, store, shop, warehouse, mill, factory, boat, vessel, depot, freight house, meeting house, church, courthouse, college, academy, or other building or structure used or kept for private or public use, shall be punished by imprisonment in the state prison not more than five years, or by a fine not...