People v. Gardner

• Court: Court of Appeal of Michigan
• Writing for the Court: Before LESINSKI; McGREGOR
• Citation: People v. Gardner, 163 N.W.2d 668, 13 Mich.App. 16 (Mich. App. 1968)
• Decision Date: 27 August 1968
• Docket Number: No. 1,Docket No. 3550,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis GARDNER, Defendant-Appellant

Page 668

163 N.W.2d 668

13 Mich.App. 16

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis GARDNER, Defendant-Appellant.

Docket No. 3550.

Court of Appeals of Michigan, Division No. 1.

Aug. 27, 1968.

Rehearing Denied Oct. 1, 1968.

Released for Publication Jan. 22, 1969.

Freddie G. Burton, Perdue, Burton, Holliday & Morris, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Solicitor Gen., Lansing, William L. Cahalan, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Angelo A. Pentolino, Asst. Pros. Atty., Wayne County, Detroit, for plaintiff-appellee.

Before LESINSKI, C.J., and LEVIN and McGREGOR, JJ.

McGREGOR, Judge.

The defendant was convicted by a jury of the offense of attempted breaking and entering a business place with intent to commit larceny, contrary to C.L.1948, § 750.110 as amended by P.A.1964, No. 133 (Stat.Ann.1968 Cum.Supp. § 28.305) and C.L.1948, § 750.92 (Stat.Ann.1962 Rev. § 28.287). He did not take the stand in his own behalf and did not offer any evidence in his own defense. Two police officers (one the driver of a scout car) testified to the effect that about 4:25 a.m. they were patrolling the area in question, saw a man (later identified as this defendant) standing on a box, attempting to crawl through a transom over a door to a business place, with his head and shoulders inside the transom; and that, as the officers approached, the defendant jumped down. The defendant was thereupon placed under arrest and further inspection showed that a wire mesh over the front door transom had been pried away. A length of steel pipe, a screwdriver, and a pair of pliers were found on the ground near the box on which the defendant had been standing. Testimony of the police officers clearly demonstrated the defendant's guilt of the crime charged beyond a reasonable doubt.

Defendant claims on appeal that the trial court failed to give instructions defining the elements constituting the crime. Defense counsel made no request for a specific charge and at the conclusion of the court's apparently otherwise comprehensive charges to the jury, told the court that there was no objection to the charge and that there were no additional requests to charge. Even though no requests be proffered, a trial judge should define the offense and indicate the essential elements of the crime, in order to establish the offense for jury consideration.

The Supreme Court of the state of Michigan has reiterated on numerous occasions that when attack is made on a court's jury charge, the whole charge must be considered and construed in...