People v. Hodo, Docket Nos. 15162

• Decision Date: 04 March 1974
• Docket Number: Docket Nos. 15162,14552,No. 1,1
• Citation: 215 N.W.2d 733,51 Mich.App. 628
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herman HODO, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph FIDEL, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 733

215 N.W.2d 733

51 Mich.App. 628

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herman HODO, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph FIDEL, Defendant-Appellant.

Docket Nos. 15162, 14552.

Court of Appeals of Michigan, Division No. 1.

March 4, 1974.

Released for Publication March 25, 1974.

Ray Reynolds Graves, Detroit (in 14552), Patmon, Young & Kirk, P.C., James R. Neuhard, State App. Defender, Detroit (in 15162), for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, App. Div., Robert E. Berg, Jr., Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and T. M. BURNS and VanVALKENBURG,* JJ.

T. M. BURNS, Judge.

Defendants Joseph Fidel and Herman Hodo were jointly tried by a jury and found guilty of armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797. They were sentenced to a term of from 2 1/2 to 15 years imprisonment on April 5, 1972, and appeal.

Evidence presented at trial disclosed that during the early morning hours of May 16, 1967, a man, later identified as John Wesley Brown, and a woman ascended an enclosed staircase to the second floor lobby of the H & I Hotel in Detroit, and rang the doorbell to gain admittance. The night clerk went to the door and allowed the two to enter. The couple inquired about renting a room for the night. As the night clerk turned to the hotel register, the man grabbed her, placed a gun to her right temple, bound her lands behind her back, and taped her mouth and eyes. The assailant then went down a hallway and returned with another individual who was bound, gagged, and blindfolded. At this point a resident of the hotel who had just closed the first floor bar rang the doorbell which was located on the first flight of stairs. The assailant looked through a window in the door and described the unintended intruder to the night clerk who explained that he was a resident in the hotel. While waiting for the door to be opened, the resident descended the stairs to the first flight and rang the doorbell for a second time. As he stood on the first flight, he met defendant Hodo. After ringing the bell, the resident turned his back on defendant Hodo and proceeded up the stairs to the door. The hotel door opened and he was jerked inside. A scuffle ensued. The resident was hit on the head with a gun, bound in a similar fashion as the other victims, and placed with them.

Subsequently, all three victims were led down a hallway to a room normally occupied by the night clerk and were seated on a bed. In the room was a safe inconspicuously draped with a tablecloth. The safe was also used as a table. A money box and a bag containing a large amount of cash for the next day's expenses at the bar and hotel were under the safe. Shortly after the victims were seated on the bed, they were joined by the hotel's resident janitor who had likewise been bound, gagged, and blindfolded.

After all the victims were in the room, one of the participants in the crime left and opened a back door. One or more persons entered and walked to the room containing the safe. An attempt was made to move the safe. One of the perpetrators went out the back door and returned accompanied by a rolling object. The safe was loaded on this object and rolled down the hallway to the back door. Someone came back to the room, whispered something to another, and they all departed.

Shortly thereafter the victims were discovered, released from their bondage, and the police were summoned. The safe was found abandoned and unopened on a stairway near the back door. However the cash box and money under the safe were missing.

The police began an investigation of the robbery and located a witness who was walking through an alley behind the hotel when the robbery was in progress. The witness explained that as he approached the rear of the building he noticed a parked panel truck bearing a license plate containing a 61 or 16 in the number. He recalled the color of the truck as either white and orange or beige and orange with the letter 'U' on the side. At about this time two individuals got into the truck and it pulled away. He also saw a blue car, parked about a block away, drive off. Concluding from the witness' description that a U-Haul truck had been used in the robbery, the officers began checking the various rental agencies. An agent was located by the police who did have a U-Haul panel truck bearing a State of Maryland license plate reading 1606 HE. A rental contract was produced which revealed that on May 15, 1967, the vehicle along with a dolly used to move appliances was rented to defendant Fidel. Information from defendant Fidel's driver's license was copied into the rental contract, and the contract was signed by defendant Fidel in the agent's presence. In addition, the rental agent related that when the truck was rented by defendant Fidel, who men were waiting outside for him in a blue Pontiac automobile. One of the individuals in the car was identified as defendant Hodo. On the following day, May 16, 1967, the panel truck was returned before the rental agent opened for business. At approximately 9:30 a.m. defendant Fidel appeared and picked up what was left of his deposit after deducting the rental fee.

Further investigation by the police disclosed that a blue Pontiac was registered to defendant Fidel. The owner of the hotel and bar indicated that he had known defendant Fidel for approximately 10 to 15 years. In response to question as to why he kept such a large sum of cash on hand, the owner stated that the following day was payday for area workers and that he had been cashing their checks for a number of years. After the evidence was presented to the jury, the defendants were found guilty of the armed robbery. Defendants raise a number of issues which will be discussed and decided in the manner presented below.

The trial court instructed the jury on the law of aiding and abetting the commission of a crime. Defendant Fidel argues that there was insufficient evidence produced at trial to permit the trial court to instruct the jury on the question of whether he aided and abetted in the armed robbery.

An instruction to the jury concerning aiding and abetting in the commission of a crime is only proper where the evidence presented at trial supports such a theory of guilt. People v. Adams, 35 Mich.App. 408, 192 N.W.2d 625 (1971).

At trial the prosecution viewed defendant Fidel as an accessory before the fact, contending that he furnished the transportation, I.e. the U-Haul truck, knowing it was to be used for the robbery and that he alone had the necessary information concerning the operation of the hotel to initially create and formulate the robbery plan.

At common law an accessory before the fact was defined as one who counselled, procured, or commanded another to commit an offense but who was not present either actually or constructively when the crime was committed. Although by statute an accessory before the fact is now treated the same as a principal, M.C.L.A. § 767.39; M.S.A. § 28.979, the common-law definition is nonetheless employed to ascertain whether an accused who was not present at the time the crime was committed is guilty as a principal under the statute. People v. Owen, 241 Mich. 111, 216 N.W. 434 (1927).

There was no evidence presented at trial which would justify the conclusion that defendant Fidel was present at the scene of the crime. However, an accused need not be present at the scene of the crime to be charged as a principal where the evidence shows that the accused procured, counseled, aided or abetted in the commission of the offense. People v. Owen, Supra; M.C.L.A. § 767.39; M.S.A. § 28.979.

The evidence adduced at trial pertaining to defendant Fidel aiding and abetting in the armed robbery may be capsulized as follows: defendant Fidel along with defendant Hodo and another unidentified individual drove to a U-Haul rental agent in defendant Fidel's blue Pontiac auto on May 15, 1967, and rented a dolly used to move appliances and a U-Haul panel truck bearing a Maryland license plate reading 1606 HE. Later that evening, the H & I Hotel was robbed at gun point. Defendant Hodo was identified at the scene at the time the robbery was being committed. The victims of the robbery were bound and blindfolded thereafter restricting the witnesses' recollection of what happened to what could be heard which included the opening and closing of doors, footsteps, and the whispering of people exiting and entering. One victim heard the hotel safe, which had been discreetly covered, being placed on an object and rolled away. A witness walking through an alley behind the hotel during the commission of the robbery observed a vehicle with similar markings and license plates as that rented by defendant Fidel parked at the rear of the hotel. The witness observed the vehicle pull away and also saw a blue automobile drive off which was parked about a block away. The cash placed under the safe was taken. Defendant Fidel had known the owner of the...