People v. Gould, 1

• Court: Supreme Court of Michigan
• Writing for the Court: Before the Entire Bench, except BLACK; KELLY; BRENNAN, C.J., and DETHMERS, J., concurred with KELLY; Before the Entire Bench, except BLACK; T. M. KAVANAGH; ADAMS, J., concurred with T. M. KAVANAGH; T. G. KAVANAGH
• Citation: 179 N.W.2d 617,384 Mich. 71
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Walter GOULD, Defendant-Appellee. ,
• Docket Number: No. 1,1
• Decision Date: 01 April 1970

Page 617

179 N.W.2d 617 384 Mich. 71 PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Walter GOULD, Defendant-Appellee. No. 1, April Term, 1970. Supreme Court of Michigan. Sept. 25, 1970.

[384 Mich. 73]

Page 618

William L. Cahalan, Pros. Atty., Thomas P. Smith, Asst. Pros. Atty., Detroit, for plaintiff-appellant.

Hyman, Gurwin, Nachman, Friedman & Weingarden, by Abba I. Freidman, Detroit, for defendant-appellee; Stanley M. Weingarden, Detroit, of counsel.

Before the Entire Bench, except BLACK, J.

KELLY, Justice.

The Court of Appeals briefly but adequately set forth the facts in its opinion in this case ¹ in which it reversed the Recorder's Court jury conviction of defendant Walter Gould, and we quote therefrom (pp. 84--85, 166 N.W.2d p. 531):

'Defendant and 2 codefendants were charged on 2 counts with armed robbery and carrying concealed weapons. 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.

'The complainant testified that shortly after midnight on May 11, 1965, 2 men entered the restaurant [384 Mich. 74] 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

Page 619

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.'

In regard to Count One (armed robbery), the majority opinion of the Court of Appeals stated (pp. 86, 87, 166 N.W.2d p. 532):

'While there is testimony that money was taken from the wallet of the customer who was in the restaurant at the time of the holdup, the criminal information on which defendant was tried alleges [384 Mich. 75] 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.

'CL 1948, § 750.357 (StatAnn 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. * * *

'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,'

and concluded (p. 92, 166 N.W.2d p. 535):

'The real error occurred when the court charged the jury that they could bring in a conviction of larceny from the person in this case. Under the facts in this case, larceny from the person was not an included offense.'

The dissenting opinion called attention to our Court's rule that (p. 95, 166 N.W.2d p. 536):

'This court will not regard as the basis for a new trial or reversal of a conviction any procedural error which does not result in a miscarriage of justice. GCR 1963, 529; CL 1948, § 769.26 (StatAnn 1954 Rev § 28.1096),'

and stated:

[384 Mich. 76] 'The sole reclining customer, whose wallet was stolen, was not named in the information as was the waitress. Again, as with lack of license, proofs were admitted and a charge was given to the jury on larceny from the person, but this defect was not mentioned throughout the course of the trial and is raised for the first time on appeal.

'The failure to raise a question in the lower court precludes this court considering it on appeal. Young v. Morrall (1960), 359 Mich. 180, 187, 101 N.W.2d 358; Therrian v. General Laboratories, Inc. (1964), 372 Mich. 487, 490, 127 N.W.2d 319.'

For the following reasons we do not agree with the majority opinion of the Court of Appeals that 'under the facts in this case, larceny from the persons was not an included offense':

First, we quote with approval from plaintiff's brief:

'The (Court of Appeals) opinion states, to-wit:

"* * * 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.'

Page 620

'Those are not the facts alleged in the information. The waitress, Velva Jane Swain, is the only person named assaulted but it states 'approximately seventy-seven ($77.00) dollars in lawful money of the United States of America' was described as taken. The place where taken from was not named. The cash...