People v. Gardner
| Decision Date | 26 October 1972 |
| Docket Number | No. 2,Docket No. 13502,2 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Fred GARDNER, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Richard J. Ruhala, Draper, Daniel & Ruhala, Flint, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., for appellee.
Before DANHOF, P.J., and BRONSON and T. M. BURNS, JJ.
Defendant was convicted by jury verdict of breaking and entering a building with intent to commit larceny and sentenced to serve a prison term of 7 1/2 to 10 years. M.C.L.A. § 750.110; M.S.A. § 28.305. From this conviction defendant appeals by right.
The sole issue argued by defendant is whether the trial judge committed reversible error by denying his request to instruct the jury upon the lesser included offenses of the crime charged.
The facts reveal that the Ivanhoe Farms Food Market storage shed was broken into on September 1, 1971. At approximately 1:00 a.m., a private alarm service monitoring a microphone at the back of the store heard sounds of someone attempting to break into the shed and notified the police. Upon reaching the scene of the crime, police officers found defendant backing out of the shed with the lock in one hand and a tire iron in the other. Defendant offered the exculpatory story that he observed teenagers attempting to break into the shed while driving past the market. He obtained a tire iron from the trunk of his car and proceeded to investigate. The teenagers fled as he approached the shed. He found the shed open and picked up the lock, at which time he was arrested by the police. Defendant requested jury instructions upon the lesser included offenses of attempted breaking and entering and entering without permission. M.C.L.A. § 750.92; M.S.A. § 28.287 and M.C.L.A. § 750.115; M.S.A. § 28.310. The trial judge's denial of this request constitutes the basis for defendant's appeal.
'Where a request has been made to charge the jury on a lesser included offense, the duty of the trial judge is determined by the evidence.' People v. Philips, 385 Mich. 30, 36, 187 N.W.2d 211, 214 (1971). 'If no evidence has been presented to support a conviction of the lesser offense, the requested instruction should be refused.' People v. Membres, 34 Mich.App. 224, 228, 191 N.W.2d 66, 67 (1971). Recently this Court in People v. Stram, 40 Mich.App. 249, 254, 198 N.W.2d 753, 756 (1972), provided a guideline for determining what constitutes 'no evidence tending to support such offenses' by its statement that:
'* * * There is no evidence tending to support a lesser included offense Unless a question of fact exists with regard to an element of the greater offense that is not an...
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