People v. Jackson

• Decision Date: 21 January 1971
• Docket Number: No. 2,Docket No. 8619,2
• Citation: People v. Jackson, 185 N.W.2d 608, 29 Mich.App. 654 (Mich. App. 1971)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ollie JACKSON, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 608

185 N.W.2d 608

29 Mich.App. 654

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ollie JACKSON, Defendant-Appellant.

Docket No. 8619.

Court of Appeals of Michigan, Division No. 2.

Jan. 21, 1971.

Released for Publication April 21, 1971.

Irving W. Goldsmith, Goldsmith & Shapiro, Warren, 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. Osinksi, Asst.Pros.Atty., for plaintiff-appellee.

Before BRONSON, P.J., and R. B. BURNS and HOFF, ^* JJ.

R. B. BURNS, Judge.

Defendant, convicted by a jury of larceny in a building (M.C.L.A. § 750.360 (Stat.Ann.1954 Rev. § 28.592)), was sentenced to a prison term of two to four years. Undisputed testimony established that defendant entered a retail store, put on a leather jacket valued at $55.95, put his own coat over the leather jacket, and was subsequently arrested attempting to leave the store. Defendant admits his theft of the jacket but claims he was charged and convicted of the wrong crime. Defendant contends that the legislature enacted M.C.L.A. § 750.356 (Stat.Ann.1970 Cum.Supp. § 28.588), which makes larceny a misdemeanor when stolen property is valued at $100 or less, to soften the harshness of the larceny-in-a-building offense, Supra, which makes all larceny a felony. Defendant argues that the conviction under the felony offense of larceny, when the stolen property is valued as $100 or less, is contrary to legislative intent. We do not accept defendant's interpretation.

Defendant would be guilty under either of the larceny statutes. The legislature has obviously decided that larceny in a building presents a social problem separate and apart from simple larceny and that all larcenies in a building, value being irrelevant deserve felony status. See Black v. Gladden (1964), 237 Or. 631, 393 P.2d 190.

The decision to charge the defendant with the felony instead of a misdemeanor is in the sound discretion of the prosecuting attorney. People v. Lombardo (1942), 301 Mich. 451, 3 N.W.2d 839; People v. Birmingham (1968), 13 Mich.App. 402, 164 N.W.2d 561; People v. Eineder (1969), 16 Mich.App. 270, 167 N.W.2d 893.

Defendant's arguments that the felony-larceny statute is vague and uncertain and that he was denied equal protection of the laws are without merit. It is clearly within the discretion of the legislature to distinguish simple larceny and larceny in a building as separate social evils.

Defendant's further argument that the prison term constitutes cruel and unusual...