People v. Harden, Docket No. 12344

• Decision Date: 29 March 1973
• Docket Number: Docket No. 12344,No. 2,2
• Citation: 207 N.W.2d 486,46 Mich.App. 141
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leo HARDEN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 486

207 N.W.2d 486

46 Mich.App. 141

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leo HARDEN, Defendant-Appellant.

Docket No. 12344.

Court of Appeals of Michigan, Division No. 2.

March 29, 1973.

Released for Publication May 30, 1973.

William J. McGrail, Jr., Utica, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appellate Lawyer, Stephen F. Osinski, Asst. Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and QUINN and PETERSON ^*, JJ.

PER CURIAM.

Defendant was tried by a jury and convicted on a charge of breaking and entering an occupied dwelling, in violation of M.C.L.A. § 750.110; M.S.A. § 28.305.

Defendant's first contention on appeal is that the evidence introduced at trial was insufficient to establish that defendant broke and entered the Smith home with intent to commit a larceny.

The substantial weight of testimony introduced at trial indicated that, on June 6, 1970, at approximately 10:30 p.m., Mr. and Mrs. Russell Brozzo observed a man in the backyard of a home owned by Norma Mann, located at 33462 Clifton Drive. The Brozzos live directly behind the Smith home and the Mann home. Mr. Brozzo and Officer Lovelace were searching the rear yard of the Mann premises when they both saw defendant jump a fence separating the Smith and Mann property. The defendant ran to the Smith home and slipped into the house; another officer apprehended defendant in the attached garage of the Smith home.

Defendant in this case was charged, in fact, with breaking and entering the Smith house when proofs much more convincingly showed that defendant's crime occurred in relation to the Mann house. Defendant did not object at trial on the grounds of variance, and raises the question as one of the sufficiency of the evidence on this appeal.

There is evidence in the trial transcript indicating the defendant had previously entered the Smith residence. George Smith testified that he locked his home prior to going to bed on the evening of the alleged crime. After defendant was apprehended Smith observed that the frame of the sliding door to the family room was bent and had been forced. There was testimony that defendant entered this door immediately, with no hesitation. One officer testified that the screwdriver found in defendant's car by another officer was identical in size to the instrument used to pry open the door of the Smith home.

One of the police officers who apprehended defendant testified to the effect that the defendant had stated that he and an accomplice had entered the Smith house through the back door and when they discovered that there were people sleeping in the house, they then left and went back and entered the Mann house.

The above evidence was sufficient to meet the state's burden of proof and provided the jury with ample evidence from which a conclusion could be drawn that defendant entered the Smith home with the intent to commit a larceny therein, but did not complete the larcenous act because he found that the Smith home was occupied. The evidence in support of defendant's conviction stands apart from that evidence which indicates that defendant again entered the Smith house at the time he was pursued by Officer Lovelace.

Defendant further contends that the criminal complaint in this felony prosecution, signed before a clerk of the district court rather than the judge of that court, did not confer criminal jurisdiction.

The complaint in this case was sworn out on June 8, 1970, by two complaining witnesses and was signed by the deputy clerk of the district court. The warrant attendant to the complaint was signed by a judge of the 41st judicial district on June 8, 1970. Defendant contends for the first time on this appeal that his constitutional and statutory rights were violated because the complaint was not sworn before an officer entitled to make a determination that there was probable cause to believe that the defendant had committed a crime. The pertinent statutes state:

'In each political subdivision where the court sits within a district of the third class (the 41st judicial district is a district of the third class. See MCLA 600.8122(5)), the * * * judges of...