People v. Fuzi

• Decision Date: 23 April 1973
• Docket Number: No. 3,Docket No. 10441,3
• Citation: 46 Mich.App. 204,208 N.W.2d 47
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wendell Albert FUZI, Defendant-Appellant. On Rehearing
• Court: Court of Appeal of Michigan — District of US

Page 47

208 N.W.2d 47

46 Mich.App. 204

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wendell Albert FUZI, Defendant-Appellant.

Docket No. 10441.

Court of Appeals of Michigan, Division No. 3.

On Rehearing April 23, 1973. ^*

Released for Publication June 15, 1973.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward W. Ten Houten, Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and R. B. BURNS and DANHOF, JJ.

J. H. GILLIS, Presiding Judge.

Defendant was charged in juvenile court with a violation of M.C.L.A. § 750.356a; M.S.A. § 28.588(1). ¹ The petition alleged that defendant

'* * * did break and enter into the glove compartment of an automobile belonging to said Albert Yack, being a 1966 Oldsmobile, Michigan License number MC 3728, breaking the latch on said glove compartment, which was locked and removing therefrom: (1) one small compass knife, (2) one Timex watch with no band, and (3) one two-cell Ashton flashlight, the total value of all said items being approximately.$7.00, all being in violation of Section 750.356a, Michigan Compiled Laws of 1948 Annotated.'

Jurisdiction over defendant was waived by a March 10, 1970 order of the juvenile division of the Wexford County Probate Court. The waiver order permitted trial of defendant in circuit court on the felony charge of larceny from a motor vehicle, in violation of M.C.L.A. § 750.356a, Supra. The offense under that statute is a felony if the value of the goods taken from the motor vehicle is not less than $5.00, or, regardless of the value of property taken, if the person breaks, tears, cuts, or otherwise damages any part of the motor vehicle. The offense is punishable by not more than 5 years imprisonment or a fine.

The information in circuit court charged larceny from a motor vehicle of a Timex watch without a band, a two-cell Ashton flashlight, and a small compass knife. The information cited not the larceny from a motor vehicle statute, cited above, but the general larceny statute. M.C.L.A. § 750.356; M.S.A. § 28.588. ² Under that statute, the theft of goods of a value exceeding $100 is a felony punishable by 5 years imprisonment or by fine. However, if property stolen is of the value of $100 or less, the offense is a misdemeanor. The information did not contain any allegation of price or value of the goods taken, nor did it allege a breaking of a part of the vehicle.

Preliminary examination was waived. On June 12, 1970, defendant appeared with appointed counsel before the circuit judge and pled guilty to the offense of stealing property from a motor vehicle in violation of the general larceny statute. As no time during the court's interrogation of defendant at arraignment did the court inquire as to the value of the goods taken. No testimony or factual basis for establishing value or damage to the vehicle was introduced. The plea of guilty was accepted. On September 8, 1970, the defendant was sentenced to a three-to five-year prison term.

Defendant brought a motion for peremptory reversal in this Court, based on the alleged lack of jurisdiction of the circuit court to proceed against defendant because the information filed in the cause contained no allegation as to value, under either the general larceny statute or the larceny from a motor vehicle statute, and because no evidence was introduced to establish value. Motion for peremptory reversal was denied. A claim of appeal was duly filed, to which there was no response from the prosecuting attorney. We reversed on the basis that allegation of value of goods taken was essential to establish that a felony had been charged. Accusation of a felony is a prerequisite to a valid waiver from juvenile court. In the absence of a showing that defendant had been properly charged with a felony, we reversed on the basis that no proper waiver of jurisdiction had occurred.

Subsequently, the prosecuting attorney filed a motion for rehearing, which was granted. On rehearing, we reverse on different grounds than those relied on in our previous opinion.

First, we consider defendant's contention that the waiver of jurisdiction from juvenile court was defective, precluding jurisdiction from attaching in circuit court.

The statute authorizing waivers reads, in pertinent part:

'In any case where a child over the age of 15 years is Accused of any act the nature of which constitutes a felony, the judge of probate of the county wherein the offense is alleged to have been committed may * * * waive jurisdiction; whereupon it shall be lawful to try such child in the court having general criminal jurisdiction of such offense.' M.C.L.A. § 712A.4; M.S.A. § 27.3178(598.4), (Emphasis supplied.)

The petition quoted above alleged both the requisite value and damage to the motor vehicle, either of which is sufficient to classify the larceny charged as a felony. The fact that the waiver order itself did not allege value or damage is not material, as the order itself does not constitute the accusation. There is no allegation that the investigation or notice requirements of the waiver statute were not complied with. The defendant was 16 and accused of a felony. That is all the statute requires, and the waiver of jurisdiction to circuit court was proper. People v. Terpening, 16 Mich.App. 104, 108, 167 N.W.2d 899 (1969); People v. Hoerle, 3 Mich.App. 693, 698, 143 N.W.2d 593 (1966).

We next consider defendant's contention that the defects in the information on which defendant was prosecuted precluded jurisdiction from attaching in the circuit court.

The defects complained of were two. First, although the petition and waiver order in juvenile court specifically charged violation of M.C.L.A. § 750.356a; M.S.A. § 28.588(1), larceny from a motor vehicle, the information referred to M.C.L.A. § 750.356; M.S.A. § 28.588, the general larceny statute, omitting the (a) and the (1), respectively.

Second the information described the goods taken, but failed to allege a necessary element of the felony: namely, the value or price of the goods taken.

The first defect complained of is not fatal, as '(i)t is not necessary that an information indicate the particular section or even the statute upon which the case rests. People v. Murn, 220 Mich. 555, 190 N.W. 666 (1922)'. People v. Hopper, 274 Mich. 418, 421, 264 N.W. 849, 850 (1936). See People v. Dayton, 18 Mich.App. 313, 316, 171 N.W.2d 57 (1969), and cases cited therein.

The failure to allege value is a more serious defect. The value of the property alleged to have been stolen is an essential element of the crime where, as here, it is the test differentiating felonies and misdemeanors. Merwin v. People, 26 Mich. 298 (1873); People v. Belcher, 58 Mich. 325, 25 N.W. 303 (1885). ³

Defendant asks that his conviction be reversed because of this defect, although the objection was raised for the first time on appeal. The rule in this state is set forth in M.C.L.A. § 767.76; M.S.A. § 28.1016, and reads in pertinent part:

'No indictment shall be quashed * * * nor shall any conviction be set aside or reversed on account of any defect in form or substance of the indictment, unless the objection to such indictment, specifically stating the defect claimed; be made prior to the commencement of the trial or at such time thereafter as the court shall in its discretion permit. The court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance * * *.'

'It is a generally accepted rule that under a statute vesting courts with power to amend indictments, any amendment not prejudicial to the rights of the accused may be allowed.' People v. Watson, 307 Mich. 596, 601--602, 12 N.W.2d 476, 478 (1943).

See 1 Gillespie, Michigan Criminal Law and Procedure (2d ed), Indictments and Informations, § 375, Amendments, pp. 452--455. The defect complained of here was amendable upon proper objection. People v. Donald, 48 Mich. 491, 493, 12 N.W. 669 (1882); People v. Sutherland, 104 Mich. 468, 472, 62 N.W. 566 (1895). The controlling consideration in each case is whether the amendment would be prejudicial to the accused. To show prejudice, one must first show surprise. People v. Morris, 23 Mich.App. 688, 692, 179 N.W.2d 405 (1970).

Defendant made no timely objection to the defect in the information, and does not claim that he would have been surprised had the information been amended below. Indeed, in view of the fact that defendant was properly charged at the start of these proceedings, in the petition in juvenile court, it would have been a difficult task for him to have sustained a claim of surprise. Furthermore, the juvenile court can only waive jurisdiction over felonies, and...