People v. Hooper

• Decision Date: 30 October 1973
• Docket Number: Docket No. 12909,No. 3,3
• Citation: 50 Mich.App. 186,212 N.W.2d 786
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alexander HOOPER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 786

212 N.W.2d 786

50 Mich.App. 186

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alexander HOOPER, Defendant-Appellant.

Docket No. 12909.

Court of Appeals of Michigan, Division No. 3.

Oct. 30, 1973.

Released for Publication Dec. 19, 1973.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Donald A. Burge, Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and BRONSON and TARGONSKI,* JJ.

TARGONSKI, Judge.

Defendant was convicted by a jury of the crime of larceny in a building ¹ and sentenced to a prison term of three to four years.

The complaint charged the appellant took a mini-8 tape player; six tapes; a rear tape speaker; and a steering wheel knob. At the preliminary examination the prosecution moved to delete all items except the tape player from the complaint and the motion was granted.

At the trial, the complainant's neighbors testified that they observed two men go to the complainant's garage and the defendant standing outside the garage while the other man went inside. After approximately forty-five minutes the other man emerged from the garage carrying what appeared to be a tape player. The witnesses further testified that the men started towards the neighbor's home, but upon noticing that they were being observed, they threw what they were carrying over a fence and departed. The goods that were thrown over the fence were those that were originally listed in the complaint.

The defendant took the stand and testified that a gas station attendant, named 'Bud', told him that the complaining witness had stolen the defendant's tape player. The defendant testified that he then went with a man named 'Porky' to retrieve his recorder from the complainant's garage. However, when 'Porky' showed him the recorder that he had taken from the car, he realized it was not his recorder and told 'Porky' to get rid of it and this is when the objects were thrown over the fence.

The first claim of error raised on appeal is that the information charged the defendant with larceny from a building but the trial court instructed the jury on aiding and abetting, despite the fact that he was not charged, in the information, as an aider and abettor. It is contended now that this procedure resulted in a denial of due process since he was not given notice of the nature of the charges against him.

We do not agree. It is well settled that an aider and abettor may be indicted, tried, and on conviction punished as a principal and no denial of due process results from charging an aider and abettor as a principal. People v. Lamson, 44 Mich.App. 447, 205 N.W.2d 189 (1972); People v. Palmer, 42 Mich.App. 549, 202 N.W.2d 536 (1972); People v. Dockery, 20 Mich.App. 201, 173 N.W.2d 726 (1969); People v. Weather-spoon, 6 Mich.App. 233, 148 N.W.2d 891 (1967).

The next claim of error concerns the instructions that were given to the jury. At the outset it must be noted that no objection was made in the trial court to the instructions and that as a general rule this precludes appellate review. People v. Kinsman, 16 Mich.App. 611, 168 N.W.2d 422 (1969); People v. Keiswetter, 7 Mich.App. 334, 151 N.W.2d 829 (1967). However, the trial judge must instruct as to all the essential elements of the crime and failure to object to an omission in this regard does not preclude appellate review. People v. Miller, 35 Mich.App. 627, 192 N.W.2d 517 (1971).

The defendant's first contention, with regard to these instructions is that although the trial court instructed that the taking must be with a 'felonious intent' he never instructed that the intent must be simultaneous with the taking and that there must be an intent to permanently deprive the victim of his property. A reading of the entire instructions reveals that although the magic words were not used, the trial judge specifically stated that in order to find the defendant guilty he must have intended to deprive the complainant of his property. Furthermore, the trial court instructed that a larceny does not occur until the accused discovers the property is not his, and decides to take the property from its place. Thus, reviewing the instructions in their entirety, we hold the trial court adequately informed the jury as to the meaning of 'felonious intent'.

The defendant also contends that other instructions were ambiguous and misleading. On appellate review jury instructions must be read in their entirety and not solely as isolated sections or sentences. People v. Dye, 356 Mich. 271, 96 N.W.2d 788 (1959); People v. Iron, 26 Mich.App. 235, 182 N.W.2d 342 (1970). A review of the instructions, when viewed in conjunction with the whole, were not ambiguous or misleading. People v. Ely, 35 Mich.App. 390, 192 N.W.2d 662 (1971).

Finally, the defendant contends that the trial court directed a verdict as to a finding of fact. This contention is based on the trial judge's statement that the tape player was not left on the premises, and even if it was, that fact would have no importance. However, there was no objection of this issue in the trial court, and absent a showing of manifest injustice, this precludes appellate review. People v. Harper, 43 Mich.App. 500, 204 N.W.2d 263 (1972); People v. Spaulding, 42 Mich.App. 492, 202 N.W.2d 450 (1972).

The correct rule with regard to whether the judge's comment was improper in this case was stated in People v. Wichman, 15 Mich.App. 110, 114, 166 N.W.2d 298, 301 (1968), as follows:

'We read these pronouncements of our Supreme Court to mean that the trial judge should not make known his views concerning disputed factual issues, the credibility of witnesses or the ultimate question about to be submitted to the jury.'

In the instant case, the comment made by the trial judge referred to asportation as an element of larceny. However, the ultimate question for the jury to determine was whether the defendant believed that the recorder was really his. Furthermore, there was no conflicting evidence as to whether the recorder was left on the premises. Under these circumstances, there was no error with respect to this comment.

The defendant next contends that the trial judge's questioning of the defendant, in the presence of the jury, constituted reversible error. He claims that the judge revealed that the defendant had been previously arrested, and that the questions were in the form of cross-examination, from which the jury might have inferred that the judge did not believe him.

The questioning complained of occurred while the defendant was testifying and he stated that he had not been picked up until 1971. The court questioned the defendant concerning a court record which stated that he had been picked up in 1970. After having the defendant clarify this matter, the judge immediately ceased the questioning. No objection was made by the defendant to the questioning.

As a general rule, failure to make timely objection precludes appellate review. People v. McIntosh, 34 Mich.App. 578, 191 N.W.2d 749 (1971); People v. Roby, 38 Mich.App. 387, 196 N.W.2d 346 (1972). However, since appellate courts cannot condone manifest injustice, this Court can react, even in the absence of timely objection, to error which resulted in a denial of a fair trial. People v. Bedsole, 15 Mich.App. 459, 166 N.W.2d 642 (1969); People v. Roby, Supra.

With respect to his second contention, the test to be applied in determining whether error resulted from the judicial questioning of witnesses is that if an examination of the record reveals that the veil of judicial impartiality was pierced by the trial judge, the case must be reversed. People v. Wilson, 21 Mich.App. 36, 174 N.W.2d 914 (1969); People v. Roby, Supra. In the instant case, the questioning of the defendant covered two pages of the trial transcript which contained approximately 120 pages of testimony and was not conducted in a manner showing hostility or bias towards the appellant. The obvious and sole purpose of the questioning was to clarify the defendant's testimony and to resolve a conflict between the court record and his testimony. It is well within the trial court's discretion to question witnesses in order to clarify conflicting testimony. People v. Dumas, 25 Mich.App. 535, 181 N.W.2d 627 (1970); People v. Saunders, 25 Mich.App. 149, 181 N.W.2d 4 (1970). Thus we cannot say that the veil of judicial impartiality was pierced, and therefore there was no miscarriage of justice.

The defendant also contends that it was error for the trial court to admit a statement made by him to the police where the police did not inform him prior to interrogation that the questioning would cease at his request. The record shows that he was adequately informed of all his other constitutional rights prior to any questioning.

This argument was rejected by this Court in People v. Tubbs, 22 Mich.App. 549, 555--556, 177 N.W.2d 622, 625 (1970), wherein it was stated:

'We conclude that the foregoing reference to the fact that whenever an individual Indicates his desire to remain silent, the questioning must cease, is a rule to govern the conduct of the proceedings and is not the setting out of a special warning requirement. The subject's warning requirements at that point concerning his right to remain silent have already been given.' See also People v. Smith, 30 Mich.App. 34, 186 N.W.2d 61 (1971); People v. Pantoja, 28 Mich.App. 681, 184 N.W.2d 762 (1970).

We are aware of this Court's decision in People v. Jourdan, 14 Mich.App. 743, 165 N.W.2d 890 (1968), where it was held that a subject must be told that questioning will cease whenever he indicates. However, after a careful reading of Miranda ² we feel that the mentioning of the right to cease questioning was a procedural safeguard rather than a special warning requirement. Thus, we are in agreement with this Court's reasoning in People v. Tubbs, Supra, and find no error.

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