People v. Hall, Docket No. 3902

• Decision Date: 28 August 1969
• Docket Number: No. 1,Docket No. 3902,1
• Citation: 19 Mich.App. 95,172 N.W.2d 473
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Goerge N. HALL, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 473

172 N.W.2d 473

19 Mich.App. 95

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Goerge N. HALL, Defendant-Appellant.

Docket No. 3902.

Court of Appeals of Michigan, Division No. 1.

Aug. 28, 1969.

Released for Publication Dec. 12, 1969.

Clifford F. Patterson, Detroit, for defendant-appellant.

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

Before LEVIN, P.J., and HOLBROOK and BEER, ^* JJ.

HOLBROOK, Judge.

The defendant was convicted of robbery armed. ¹ At the trial there was introduced in evidence over defendant's objection a loaded hand gun found on defendant when he was arrested 2 days after the crime was allegedly committed. The victim was asked whether he had a good look at the gun, to which he replied that 'I didn't look too straight at it.' When asked the color, he testified, 'It was blue steel, I think it was. I don't know for sure.' ² He later testified that it was black. The victim was then asked whether it was a revolver, to which he replied that, 'I couldn't tell you for sure. All I knew was that it was a gun.'

The victim testified that the gun used by the defendant in holding him up was fired into the ground as a warning. An officer of the police scientific laboratory, who examined the gun found on the defendant a few days after the defendant's arrest, testified that he did not examine it to determine whether it had been fired.

Although the evidence did not establish that the gun found on the defendant at the time of his arrest was the gun used in committing the crime, it is a well-established rule that where weapons or tools were used to commit a crime, weapons or tools that might have been used to commit the crime found in the accused's possession at the time of arrest may be introduced without proof that they were the very weapons or tools in fact so used. ³

The information charged that the crime was committed 'with a dangerous weapon, to-wit: A .25 cal. ASTRA blue steal automatic-pistol, serial #753425.' (Emphasis supplied) The serial number so stated was the serial number of the gun found on the defendant at the time of his arrest. The people were unable to prove that the gun found on the defendant was in fact the gun used in committing the crime. However, in our opinion, all the emphasized quoted words, other than the word 'pistol' are surplusage and may be ignored. ⁴

There was sufficient evidence to justify a jury verdict that the defendant was guilty of the crime charged beyond a reasonable doubt.

The trial court erred in failing to give the defendant specific credit against the sentence of 3 to 15 years in prison for the time he served in jail between the time of his arrest and the time of sentencing, as provided for in the applicable statute:

'Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.' M.C.L.A. § 769.11b (Stat.Ann. 1969 Cum.Supp. § 28.1083(2)).

At the time of defendant's arrest he had escaped from the Detroit House of Correction where he was serving a State prison sentence. At the time of his arrest and at subsequent appearances before the court, bail was set at $5,000 with 2 sureties. Defendant did not furnish bail and he was detained in the Wayne county jail from the time of his arraignment on the warrant on September 10, 1966, through the date of trial, March 20, 1967, and the sentencing on April 5, 1967. The total period of his detention for which he claims credit is 207 days.

After oral argument in our Court the people furnished us with affidavits stating that the department of corrections has given the defendant credit for the 207 days served in the Wayne county jail against sentences still not fully served imposed upon the defendant following earlier convictions for other offenses. ⁵

In People v. Chattaway (1969), 18 Mich.App. ---, 171 N.W.2d 801, our Court observed that in Michigan, with exceptions not here relevant, a sentence may not be imposed to commence upon completion or expiration of another sentence (In re Carey (1964), 372 Mich. 378, 380, 126 N.W.2d 727). It was said that the sentence credit statute avoids unnecessary chilling of exercise of the right to trial by requiring adjustment of the sentence of one denied or unable to furnish bond so that he spends no longer in jail than one receiving the same sentence who is released on bail pending trial.

This statute is remedial and has been liberally construed by our Court so as to effectuate its purpose. People v. Havey (1968), 11 Mich.App. 69, 160 N.W.2d 629; Booker v. Judge of Recorder's Court (1967), 7 Mich.App. 705, 707, 153 N.W.2d 178; People v. Grandahl (1969), 16 Mich.App. 221, 224, 225, 167 N.W.2d 802. In Chattaway our Court stated:

'Nor is there anything in the statute which makes relevant the fact that the consequence of granting credit in this case would be to give the defendant the benefit of the credit against the sentence imposed in both cases. In this connection we note that the sentence credit which the defendant obtained in the other case was of illusory benefit to him; since both sentences run concurrently, the shorter sentence in the other case was in practical effect absorbed by the longer sentence imposed in this case. If the defendant can only have credit against one sentence (as the people contend), surely he should receive the credit against the longer sentence imposed in this case, where it would be of value to him, rather than against the shorter sentence imposed in the other case where the credit was of no value to him.'

We adopt this reasoning. The fact that Hall received credit against his old sentences does not negate his right to credit against the present armed robbery sentence. Since the armed robbery sentence is for a longer term than the unserved portions of the old sentences, to allow the credit against the old sentences and not the new would, in the light of the concurrency of Michigan sentences, be to confer an illusory benefit. Hall is entitled to credit against the armed robbery sentence for the 207 days.

We see no need for remaining for resentence. Pursuant to the provisions of GCR 1963, 820.1(7) it is ordered that the defendant's sentence be amended specifically to grant him credit for the 207 day period.

Affirmed in part and reversed in part.

LEVIN, Presiding Judge (concurring in part and dissenting in part).

The defendant was convicted of armed robbery. ¹ At the trial a loaded hand gun, found during a search of the defendant when he was arrested 2 days after the crime was committed, was introduced in evidence over his attorney's objection. The victim identified the defendant as the robber but could not identify the gun. ²

There was no evidence that the gun found on the defendant was used to commit the crime. Nevertheless, I agree with my colleagues that it is well established that where weapons or tools and used to commit a crime, weapons or tools which might have been used to commit it, found in the accused's possession, may be introduced without proof that they were the very weapons or tools which, in fact, were used in its commission. ³ It is also well established, ⁴ however, that the trial court may, in the exercise of its discretion, and, in some cases is obliged to exclude evidence otherwise admissible because its probative value is overcome by the danger that introduction of the evidence will confuse, mislead or prejudice the jury. ⁵

The fact that the defendant Hall owned a gun was relevant. It is ordinarily a reasonable inference, one which the trier of fact may properly draw, that one who owns a gun on a given date owned it 2 days before that date. If the jury drew that inference it could properly conclude that Hall had the capacity to commit the crime of which he was convicted.

The defendant's objection to the admission of the gun was not put on the ground that it was not relevant. The defendant asserted, rather, that its introduction was prejudicial and, therefore, even though relevant, the gun should not have been admitted into evidence.

The crux of the people's case was the identification testimony of the taxicab driver who was the victim of the armed robbery. The introduction of the gun did not serve in any way to aid the jury in properly evaluating the taxicab driver's identification testimony.

Possession of a hand gun is regarded by a significant portion of our citizens as reprehensible. Thus, there was considerable risk that the jury would give undue weight to the fact that the defendant Hall owned a gun and on that basis resolve against him any doubt regarding the identification testimony. Confronted with such a situation our duty and that of the trial judge is to balance the relevance of the evidence (its probative value) against its diversionary and prejudicial impact.

Analogous on its facts is State v. Thompson (1961), 228 Or. 496, 364 P.2d 783. The defendant in that case was arrested 2 months after the commission of the armed robbery at his home which was situated 75 miles from the scene of the crime. The gun was found on a shelf in a closet in the defendant's bedroom. The defendant was identified by the victim as the robber. The analysis of the Oregon Supreme Court in holding that the trial judge in that case should not have allowed the gun to have been introduced in evidence is persuasive (pp. 501, 502, 364 P.2d p. 785):

'Admittedly, cases involving weapons found on or about a defendant when arrested and which cannot be identified as the actual weapon with which the crime charged had been committed present...