People v. Gould
| Decision Date | 23 December 1968 |
| Docket Number | No. 1,Docket No. 1867,1 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter C. GOULD, Defendant-Appellnt |
| Court | Court of Appeal of Michigan — District of US |
Abba I. Friedman, Stanley Weingarden, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty. Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Wayne County, Thomas P. Smith, Asst. Pros. Atty., Wayne County, Detroit, for plaintiff-appellee.
Before GILLIS, P.J., and McGREGOR and THORBURN, * JJ.
Defendant and 2 codefendants were charged on 2 counts with armed robbery 1 and carrying concealed weapons. 2 All 3 were convicted by a jury on the second count but on the first count one codefendant was convicted of armed robbery, the other was convicted of simple assault and defendant was convicted of larceny from the person. 3
The complaint testified that shortly after midnight on May 11, 1965, 2 men entered the restaurant where she was working as a waitress. One of the men had a gun in his hand. After announcing a holdup, the 2 men forced the waitress and her sole customer to lie face down on the floor of another room and proceeded to take about $77 from the cash register and a cigar box and $7 from the wallet of the customer. The men then ran from the restaurant. Another patron, who was entering the restaurant just as the 2 men were fleeing, testified that the men ran to an automobile where a third man was waiting He could not, however, identify any of the defendants except as to the clothing of one and the color of both.
The waitress was able to identify one of the codefendants as the man with the gun but was unable to identify his accomplice. The customer who had been in the restaurant corroborated the testimony of the waitress as to the details of the robbery and also identified the man with the gun.
The police were called and given the details of the robbery, including a description of the men and the car in which they escaped. This information was immediately communicated by police radio to a Detroit police cruiser. Approximately 10 minutes after the robbery, the officers in the police cruiser observed the 3 codefendants in their car and, based on the broadcast information, arrested them. A search of the car uncovered a fully loaded .45 caliber automatic pistol, 2 pairs of brown cloth gloves under the front seat, $40 in bills and $17.50 in change in the glove box. Forty dollars in bills were found in the pocket of one of the codefendants.
On appeal defendant contends that the verdicts as to each codefendant were inconsistent, that the first and second counts could not be joined under the facts of this case in one information, that there was insufficient evidence to convict this defendant of the second count and that the crime of larceny from the person was not established as against any of the codefendants. Defendant urges that since he was alleged to have been the driver of the automobile, he could only be convicted on the basis that he aided and abetted in the commission of the armed robbery by his codefendants who were convicted of different offenses.
The distinction between accessories before the fact and principals has been abrogated by statute so that one who counsels, aids or abets in the commission of an offense may be prosecuted, tried and convicted as if he had directly committed such offense. 4 If either of the codefendants could have been convicted of the offense of larceny from a person, then, under the facts of this case, defendant's conviction should be upheld.
While there is testimony that money was taken from the wallet of the customer 5 who was in the restaurant at the time of the holdup, the criminal information on which defendant was tried alleges only the taking of the money from the cash register and cigar box in the presence of the waitress. Because we must confine ourselves to a consideration only of the facts alleged in the information, the only question for our determination is whether the taking of the money from the cash register and cigar box constituted larceny from the person.
C.L.1948, § 750.357 (Stat.Ann.1954 Rev. § 28.589) provides as follows:
'Any person who shall commit the offense of larceny by stealing From the person of another shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years.' (Emphasis supplied.)
There is disagreement as to the proper interpretation to be given the italicized portion of the statute.
The following passage appears in 52A C.J.S. Larceny § 11, pp. 433, 434:
'In order to constitute larceny from the person, the thing stolen must be taken from the actual person of the owner, or at least from his possession and immediate presence, or from a place where he has been compelled by violence or threats to drop or place it.
Thus, it appears that there are 2 schools of thought on the subject; one requires a taking from the actual person and the other allows a taking of property in the possession and immediate presence of the owner.
The same question presented here was considered by the court in State v. Kobylasz (1951), 242 Iowa 1161, 47 N.W.2d 167, where a woman's purse was taken, not from her Person, but from the seat beside her in an automobile. From that opinion comes the following analysis:
'Defendant's complaint of the instruction (submitting larceny from the person) and the verdict based thereon seems also to be that there was no evidence the property was actually taken from Miss Wells' Person. In State v. Calhoun, 72 Iowa 432, 34 N.W. 194, 195, it was held that though the robbery statute contemplates the taking of property 'from the person' of another the language does not mean the property must be 'upon or in some way attached to the person of the individual robbed, or in his immediate presence.' The opinion says: 'If it be away from the owner, yet under his control, in another room of the house * * * it is nevertheless in his personal possession; and, if he is deprived thereof, it may well be said it is taken from his person.'
'This decision, with others of like character, is cited in the annotation 123 A.L.R. 1099, 1100. It is somewhat in point here by reason of the analogy between the crimes of robbery and larceny from the person. In 52 C.J.S. Larceny § 11, it is said: 'to constitute larceny from the person, the thing stolen must be taken from the actual person of the owner, Or at least from his possession and immediate presence * * *.' (Italics supplied) The text is supported by citation of Banks v. State, 74 Ga.App. 449, 40 S.E.2d 103. The corresponding text in 36 C.J. 754, 755 (§ 66) does not contain the italicized part of the language above quoted from C.J.S.
'The Georgia case, Banks v. State, supra, is the only recent decision which expressly broadens the definition in the respect we are considering. There is an old Minnesota case, State v. Eno, 8 Minn. 220, which says larceny from the person 'extends to every case of stealing where the property stolen is on the person or in immediate charge and custody of the person.' That seems a reasonable construction. See also: State v. Reyner, 50 Or. 224, 91 P. 301, 302.
'The somewhat recent case of Wilder v. State, 30 Ala.App. 107, 1 So.2d 317, and the more ancient (1897) one of People v. McElroy, 116 Cal. 583, 48 P. 718, construe the language as applying only if the property is taken Off the person of the complaining witness, which after all is slightly different from the words 'from the person' which do not necessarily connote that the property, when taken, must be actually On the person.
State v. Kobylasz, Supra, pp. 1167, 1168, 47 N.W.2d p. 170.
Thus, in Banks v. State, Supra, and State v. Eno, Supra, convictions of larceny from the person were sustained. In Banks, a wallet was taken from beneath the pillow of its sleeping owner and in Eno horses were taken from a barn.
The A.L.R. annotation referred to in Kobylasz points out that in Robbery cases, where the property was in the control, custody and protection of the person from whom it is alleged to have been taken, it is not necessary to sustain a conviction that it should have been in actual physical contact with his person.
This theory has been applied to sustain convictions of Robbery in factual settings identical to the one here; i.e., where defendant took money from the cash register or cash drawer in the immediate presence of the prosecuting witness. The theory was also accepted in Robbery cases by the Michigan Supreme Court in People v. Cabassa (1930), 249 Mich. 543, 547, 229 N.W. 442, 444:
"The thought of the statute, as expressed in the language, is that the property...
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