People v. Jankowski
| Decision Date | 11 March 1980 |
| Docket Number | No. 6,Docket No. 61253,6 |
| Citation | 289 N.W.2d 674,408 Mich. 79 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John JANKOWSKI, Defendant-Appellant. Calendar408 Mich. 79, 289 N.W.2d 674 |
| Court | Michigan Supreme Court |
George B. Mullison, Bay County Prosecuting Atty., Thomas J. Rasdale, Asst. Pros. Atty., Bay City, for plaintiff-appellee.
State Appellate Defender Office by Domnick J. Sorise, Asst. Defender, Detroit, with Sheila Robertson, Research, for defendant-appellant.
The issue presented is whether defendant can properly be convicted of armed robbery, larceny over $100 and larceny in a building as a result of one felonious taking.
We find that he may not. On the evidence introduced at trial, larceny over $100 and larceny in a building were lesser included offenses of armed robbery.
We affirm the conviction of armed robbery and vacate the convictions of larceny over $100 and larceny in a building.
John Jankowski was tried and convicted by a jury on charges of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797; larceny over $100, M.C.L. § 750.356; M.S.A. § 28.588; larceny in a building, M.C.L. § 750.360; M.S.A. § 28.592; and conspiracy to commit armed robbery, 1 M.C.L. § 750.157a; M.S.A. § 28.354(1); all as an aider and abettor, M.C.L. § 767.39; M.S.A. § 28.979. Defendant was sentenced to concurrent prison terms of 5 to 20 years, 3 to 5 years, 2 to 4 years, and 5 to 20 years respectively.
On appeal, the Court of Appeals, in an unpublished per curiam opinion, affirmed all four convictions.
Defendant claims his multiple convictions of armed robbery, larceny in a building and larceny over $100 violate the double jeopardy provisions of the Michigan and United States Constitutions. Const.1963, art. 1, § 15; U.S.Const. Ams. V, XIV.
All charges arose out of one taking from a gasoline station of a cash register which contained approximately $400. The evidence at trial showed that while the defendant waited in a car with two other men, a masked accomplice, carrying a revolver, entered a gasoline station with the intent of robbing the attendant of the business's cash receipts. The attendant, upon seeing the man approach with gun in hand, fled to an inner office, locked the door and telephoned police while watching the intruder from an office window. The man, upon entering the station building, picked up the locked cash register and carried it to the waiting car where it was pried open and the money divided among the four occupants, including the defendant.
In his charge to the jury, the trial judge read the information and the statutes regarding armed robbery, larceny over $100, larceny in a building, and conspiracy, and instructed the jury that defendant could be convicted on any or all of the charges.
We note at the outset that the defendant's double jeopardy challenge is not addressed to a legislative scheme of criminal punishment where a clear legislative intent to create more than a single crime exists. See Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979); reh. den. 406 Mich. 1127 (1979). We are dealing instead with a more traditional application of double jeopardy protection as a restraint on courts and prosecutors imposing double punishment for a single criminal act. Thus, the debate over the constitutional boundaries of double jeopardy which divided this Court in Wayne County Prosecutor, supra, need not be resumed in this case. 2 Instead, in determining the validity of the defendant's claims, we find controlling the rationale employed in the trilogy of Michigan cases in which this Court's review of double jeopardy claims based on multiple punishments focused upon the proofs adduced at trial in order to determine whether multiple punishments were imposed for the same offense. People v. Cook, 236 Mich. 333, 210 N.W. 296 (1926); People v. Martin, 398 Mich. 303, 247 N.W.2d 303 (1976); People v. Stewart (On Rehearing), 400 Mich. 540, 256 N.W.2d 31 (1977). If, factually, the convictions in this case are based on proof of a single act, the separate crimes consist of nothing more than a greater crime and certain of its lesser included offenses. If such is the case, the multiple convictions will not be allowed to stand.
We perceive the issue to be whether, on the facts of the case presented, armed robbery and the two larceny charges are the "same offense" for which the defendant may not be multiply punished.
On the evidence produced at trial, it is clear that the larceny charges 3 were lesser included offenses of armed robbery. 4 Robbery has long been defined in this jurisdiction to be nothing more than a "larceny committed by assault or putting in fear". People v. Kelley, 21 Mich.App. 612, 619, 176 N.W.2d 435, 438 (1970).
In People v. Chamblis, 395 Mich. 408, 425, 236 N.W.2d 473, 481 (1975), where the taking was directly from the person of the victim rather than in his presence, as in the instant case, this Court stated:
The Federal courts have gone so far as to say that "(i)t is beyond dispute that larceny is a necessarily lesser included offense of the crime of robbery". Walker v. United States, 135 U.S.App.D.C. 280, 284, 418 F.2d 1116, 1120 (1969); United States v. Belt, 516 F.2d 873, 875 (CA 8, 1975).
The logic underlying this greater and lesser included offense analysis is that any single taking of the character involved here is first a larceny. When the taking is accomplished by force or assault, the offense is aggravated to one of robbery. It is only the use of force or assault on the person of another in order to deprive him of property in his possession or control that distinguishes robbery from an ordinary larceny. 5
In State v. Little, 19 Utah 2d 53, 426 P.2d 4 (1967), the defendant was charged with armed robbery and grand larceny arising out of a single taking. He was convicted of both crimes at one trial and was given concurrent sentences. The Utah Supreme Court reversed the defendant's conviction of grand larceny, stating:
In this case it was factually and logically impossible for the defendant to be guilty of armed robbery without at once being guilty of larceny in a building and larceny over $100.
To convict the defendant of the larceny charges, the jury was required to find him guilty of feloniously taking the cash register which contained $400 from within the gasoline station building. That was a necessary fact for conviction of both larceny in a building and larceny over $100. In further concluding that the cash register was taken from the presence of the attendant after he was put in fear by the thief's use of a weapon, the jury found the offense was aggravated to one of armed robbery, but in doing so the jury was required to rely upon the same proof that was necessary to convict of the larceny charges. People v. Martin, supra.
If the circumstances had been such that the attendant had not fled to an inner office but instead had been personally confronted and ordered by the robber to remove money from the cash register and hand it over, it is clear that the prosecution could not seriously contend that the defendant could be convicted of both armed robbery and larceny from the person. See People v. Chamblis, supra. Yet, the prosecution now asks that we sustain a robbery and two larceny charges in a situation where the only distinguishable fact is the victim's flight to an inner sanctuary upon being confronted with a gun with the result that the robber was required to take the money by the only means available carrying out the entire locked cash register. 6
We agree with the Sixth Circuit Court of Appeals' statement in Rutkowski v. United States, 149 F.2d 481, 482 (CA6, 1945):
Accord, Whitton v. State, 479 P.2d 302 (Alaska 1970).
Because the prohibition embodied in the double jeopardy clause...
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People v. Robideau
...satisfied. Since the decision in Wayne County Prosecutor, however, we have failed to look to legislative intent. In People v. Jankowski, 408 Mich. 79, 289 N.W.2d 674 (1980), the defendant, in a transaction arising out of a robbery of a gas station, was charged with and convicted in a single......
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People v. Wise
...398 Mich 303; 247 N.W.2d 303 (1976) ], [People v. Stewart (On Rehearing), 400 Mich. 540; 256 N.W.2d 31 (1977) ], and [People v. Jankowski, 408 Mich 79; 289 N.W.2d 674 (1980) ] suggests that the critical test is whether the defendant committed 'one single wrongful act, we specifically disavo......
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People v. Wilder
...III The instant case presents a second question which is similar to the one resolved in this Court's decision of People v. Jankowski, 408 Mich. 79, 289 N.W.2d 674 (1980). What we must determine here on similar principles is whether defendant Wilder was deprived of his constitutional right n......
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...of multiple punishments was not barred on double jeopardy grounds.11 Id. at 397, 280 N.W.2d 793. However, in People v. Jankowski, 408 Mich. 79, 289 N.W.2d 674 (1980), the Court reverted to the fact-based approach of Martin and Stewart. In Jankowski, the defendant was convicted of armed robb......