People v. Goodchild

• Decision Date: 25 March 1976
• Docket Number: Docket No. 24118
• Citation: 242 N.W.2d 465,68 Mich.App. 226
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert J. GOODCHILD, Defendant-Appellant. 68 Mich.App. 226, 242 N.W.2d 465
• Court: Court of Appeal of Michigan — District of US

Page 465

242 N.W.2d 465

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert J. GOODCHILD, Defendant-Appellant.

Docket No. 24118.

68 Mich.App. 226, 242 N.W.2d 465

Court of Appeals of Michigan.

March 25, 1976.

Released for Publication June 11, 1976.

Leave to Appeal Denied July 14, 1976.

[68 MICHAPP 229] James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Tony I. Marcinkowiz, Pros. Atty., for plaintiff-appellee.

[68 MICHAPP 230] Before DANHOF, P.J., and D. E. HOLBROOK and ALLEN, JJ.

ALLEN, Judge.

Defendant appeals by right from his conviction of involuntary manslaughter, M.C.L.A. § 750.321; M.S.A. § 28.553, and assault with intent to do great bodily harm less than murder, M.C.L.A. § 750.84; M.S.A. § 28.279.

Defendant, a juvenile, took an automobile, and was spotted by police with his headlights off. ¹ A high speed chase ensued, joined by state troopers. Defendant made several attempts to block police from passing him. He eventually drove the state police car off the road and into a tree. One trooper was killed and the other seriously injured.

At defendant's preliminary examination on a complaint charging premeditated murder, murder during the perpetration of a larceny, ² and assault with intent to murder, the district court found, among other things, the proofs were insufficient as to premeditated murder but, as to felony murder, it ruled 'The Court specifically finds that the People have proven a felony here, under (MCLA) 750.413 (MSA 28.645), and that it is not necessary to establish specific intent to permanently deprive the owner of possession of a motor vehicle in oder to establish the crime of auto theft in terms of that statute. People have established[68 MICHAPP 231] the less specific intent of larceny and have shown the classic elements of a larceny of the motor vehicle in question, as an asportation of, with felonious intent without the owners' consent, and against his will.

'The auto theft felony statute, (MCLA) 750.413 (MSA 28.645), is still a statutory crime and the question remains, is that a larceny under the language of (MCLA) 750.316 (MSA 28.548), making a First Degree Murder to kill and murder one Darryl Rantanen, in the course of a larceny?

'The Court finds that the larceny, the elements established in the auto theft would amount to a larceny. It says a larceny of any kind. That these are the common law elements and that that has been established.'

Defendant's pretrial motion in circuit court to quash the amended information as to felony murder ³ was denied on the grounds that intent to permanently deprive another of his property is not an essential element of either larceny or a violation of M.C.L.A. § 750.413; M.S.A. § 28.645. Subsequently, the court corrected itself, acknowledging that intent to permanently deprive one of his property is an essential element of larceny. Nevertheless, the court denied defendant's motion for a directed verdict on the grounds that the question of intent was for the jury.

On appeal, defendant claims error in binding him over on a charge of felony murder since unlawfully driving away an automobile under M.C.L.A. § 750.413; M.S.A. § 28.645, is not an enumerated felony. He argues that the circuit court erred in not quashing the information or directing a verdict of acquittal on the count. The people maintain that defendant's conduct might be interpreted as larceny of an automobile plus murder, that it was within the discretion of the prosecutor to so [68 MICHAPP 232] charge, and that Count II of the complaint and Count I of the amended information did so charge.

M.C.L.A. § 750.316; M.S.A. § 28.548 defines first-degree murder in pertinent part:

'All murder * * * which shall be committed in the perpetration, or attempt to perpetrate * * * larceny of any kind.'

In resolving the initial issue whether the statutory crime of unlawfully driving away a motor vehicle ⁴ constitutes a 'larceny of any kind', we note the principle that penal statutes are to be strictly construed. People v. Goulding, 275 Mich. 353, 360, 266 N.W. 378 (1936). The essential elements of a larceny are:

'(1) an actual or constructive taking of goods or property, (2) a carrying away or asportation, (3) the carrying away must be with a felonious intent, (4) the subject matter must be the goods or the personal property of another, (5) the taking must be without the consent and against the will of the owner.' People v. Wilbourne, 44 Mich.App. 376, 378, 205 N.W.2d 250, 251 (1973).

The felonious intent required for larceny, Animus furandi, is an intent to permanently deprive the owner of his property. ⁵ The elements of unlawfully driving away a motor vehicle contrary to M.C.L.A. § 750.413; M.S.A. § 28.645, consist of (1) taking possession [68 MICHAPP 233] of a vehicle, (2) driving or taking it away, (3) willfully, and (4) without authority. People v. Limon, 4 Mich.App. 440, 442, 145 N.W.2d 287 (1966); People v. Talley, 67 Mich.App. 239, 240 N.W.2d 496 (1976). It is evident, and our Supreme Court has so ruled, that unlawfully driving away an automobile does not require proof of an intent to permanently deprive the owner of his property and is therefore not larceny. People v. Stanley, supra. Also see, People v. Lerma, 66 Mich.App. 566, 239 N.W.2d 424 (1976); People v. Davis, 36 Mich.App. 164, 193 N.W.2d 393 (1971).

Granting the district court erred in determining that unlawfully driving away a motor vehicle equals larceny for the purpose of felony murder, we are persuaded that the district court did not abuse its discretion in binding defendant over on a charge of murdr during perpetration of a larceny. The prosecution is not required at the preliminary examination to prove that a defendant is guilty beyond a reasonable doubt. The prosecution must show that the charged offense was committed and there is probable cause defendant committed it. People v. Asta, 337 Mich. 590, 609, 60 N.W.2d 472 (1953). However, to bind one over 'there must be evidence on each element of the crime charged or Evidence from which those elements may be inferred.' People v. Oster, 67 Mich.App. 490, 241 N.W.2d 260 (1976). An intent element 'may be inferred from the act itself.' People v. Medley, 339 Mich. 486, 493, 64 N.W.2d 708, 712 (1954).

In cases involving the taking of an automobile, the prosecution will often charge unlawfully driving away a motor vehicle in lieu of larceny so as to dispense with the need to prove 'intent to steal'. If the prosecution believes the evidence so warrants it has the discretion to charge one with [68 MICHAPP 234] either crime. Cf. People v. Sanford, 65 Mich.App. 101, 237 N.W.2d 201 (1975).

In the case at bar the preliminary examination transcript contains evidence that a motor vehicle belonging to one Meyer in Escanaba was taken without his consent and against his will. There is evidence of an asportation, evidence that shortly after the taking, the driver of the vehicle killed a police officer by running the latter's vehicle off the road during a chase, and evidence that the driver abandoned the vehicle after the tragic event. From the above evidence, it could be inferred that whoever took the automobile did so with felonious intent to steal.

Prosecution witness Joseph Dahn testified at the preliminary examination that while he and the defendant were in Escanaba, defendant suggested that they steal a car. They found a vehicle with keys and drove to the witness's residence in nearby Gladstone. He testified that they intended to abandon the vehicle, but when they arrived in Gladstone, defendant said he desired to ride around a little longer. On cross-examination Dahn testified that they took the automobile because they were too tired to hitchhike and that before driving away defendant indicated to him that he would leave the vehicle somewhere in Gladstone.

Admittedly, witness Dahn's testimony was conflicting. However, 'it is not the function of the examining magistrate to carefully weigh the evidence and discharge the accused when the evidence conflicts or raises a reasonable doubt of his guilt; such questions should be left for the jury.' People v. Oster, supra, 241 N.W.2d at 262. When circumstantial evidence supports an inference with regard to intent, should other testimony tending in part to negate the intent necessarily preclude a magistrate[68 MICHAPP 235] from binding the defendant over on the charge? We do not believe it should. A jury has the right to disregard all or part of the testimony of a witness. People v. Berthiaume,59 Mich.App. 451, 229 N.W.2d 497 (1975). Of course, '(m)ere disbelief in a witness's testimony does not justify a conclusion that the opposite is true without other sufficient evidence supporting that conclusion.' People v. O'Connor, 48 Mich.App. 524, 529, 210 N.W.2d 805, 808 (1973). We believe that the conduct of the defendant coupled with the testimony of witness Dahn that defendant suggested they steal an automobile was sufficient to bind defendant over on the charge even though other testimony pointed to the conclusion that defendant did not intend to permanently deprive Mr. Meyer of his property. ⁶

Defendant also contends that it was error to bind appellant over on a charge of felony murder for yet another reason, Viz.: there was no finding that the trooper's death was murder rather than homicide. We acknowledge that a death (homicide) in the course of a felony enumerated in the first-degree felony murder statute is not, without more, felony murder. People v. Carter, 395 Mich. 434, 236 N.W.2d 500 (1975). But we do not agree that the district court bound defendant over on the felony murder count based on larceny of an automobile (the felony) and homicide. Instead, the record discloses defendant was bound over on a charge of felony plus homicide plus malice. ⁷ The element of [68 MICHAPP 236] malice is adequately record supported. Driving a...