People v. Karasek, Docket No. 20881

• Citation: 63 Mich.App. 706,234 N.W.2d 761
• Decision Date: 27 August 1975
• Docket Number: Docket No. 20881
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond J. KARASEK, Defendant-Appellant. 63 Mich.App. 706, 234 N.W.2d 761
• Court: Court of Appeal of Michigan — District of US

Page 761

234 N.W.2d 761

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond J. KARASEK, Defendant-Appellant.

Docket No. 20881.

63 Mich.App. 706, 234 N.W.2d 761

Court of Appeals of Michigan.

Aug. 27, 1975.

Released for Publication Nov. 12, 1975.

Leave to Appeal Denied Dec. 2, 1975.

[63 MICHAPP 708] James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Farrell E. Elliott, Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and D. E. HOLBROOK and KAUFMAN, JJ.

McGREGOR, Presiding Judge.

On April 17, 1974, the defendant was convicted by a jury of the included offense of assault with intent to rob while being armed, [63 MICHAPP 709] M.C.L.A. § 750.89; M.S.A. § 28.284. He was subsequently sentenced to a term of 10 to 20 years in prison with all accumulated benefits. Defendant now appeals his conviction as of right.

By complaint and information, defendant was charged with the armed robbery of one Walter C. Wylie, Jr. The complainant testified that he was the officer of a loan company and that, at approximately 10:00 a.m. on the day in question, the defendant came to his home and was admitted on a false pretext. Defendant produced a rifle and proceeded to tie the complainant's hands with a rope. Complainant was then ordered to produce cash or valuables. After the loan company had closed for the day, complainant went there with the defendant to obtain negotiable instruments and other valuables. After obtaining certain bonds, they returned to the complainant's home, where subsequently the complainant was able to overpower the defendant and call the police.

The defendant took the stand and denied committing an armed robbery. He testified that he was engaged in illegal activities which entailed carrying and transferring money which had been obtained through illegal lending or from the buying of narcotics, and that he went to complainant's home for the purpose of collecting a 'short on a payment'. The complainant advised him that he did not have the money and became jittery and belligerent. At this point, defendant showed his gun and also tied complainant's hands. Defendant further testified that it was the complainant's idea that they should wait until evening before picking up the bonds from the office and then take them to Chicago for negotiation.

Complainant testified that he never worked with the defendant in any illegal activities.

[63 MICHAPP 710] Defendant raises six issues on appeal. The first involves the following instruction to the jury by the trial court:

'The value of the property taken is immaterial, so long as it actually has some value. It must be taken by the defendant with a felonious intent, and without any claim or color of right, in order to constitute robbery.

'However, The fact that it is claimed that the robbery was for the purpose of collecting a debt is not a claim or color of right which would justify a robbery or be a defense to a charge of robbery. No creditor is entitled to collect a debt at gunpoint or by means of an assault.' (Emphasis added.)

Defendant contends that the above instruction was an erroneous statement of the law involved. He argues that his defense was based upon the theory that he was collecting a debt as an agent for an unnamed party to whom Wylie owed money and that, as a result, he had a right to such funds. He further contends that the above instruction erroneously took away from the jury the right to consider this defense.

Armed robbery is a statutory offense. M.C.L.A. § 750.529; M.S.A. § 28.797. Under the statute, the essential elements of armed robbery are: (1) that an assault was committed by defendant upon the complainant; (2) that the defendant feloniously took any property which might be the subject of larceny from the complainant or in his presence; and (3) that the defendant was armed with a weapon described in the statute. People v. Needham, 8 Mich.App. 679, 155 N.W.2d 267 (1967). Because larceny is a specific intent crime, armed robbery also requires specific intent as larceny is an integral part of any armed robbery. Therefore, if the specific intent to steal of larceny is lacking, [63 MICHAPP 711] there can be no armed robbery. People v. Alexander, 17 Mich.App. 30, 169 N.W.2d 190 (1969); People v. Kelley, 21 Mich.App. 612, 176 N.W.2d 435 (1970); People v. Ramsey, 23 Mich.App. 11, 178 N.W.2d 105 (1970); People v. stoner, 23 Mich.App. 598, 179 N.W.2d 217 (1970). As stated in 3 Gillespie, Michigan Criminal Law & Procedure (2d ed.), § 1799, pp. 2144--2145:

'A felonious intent is an inseparable and essential ingredient of every larceny, and if a person takes property under a claim of right, however, unfounded, he is not guilty of the offense. In all cases where one in good faith takes another's property under a claim of right to do so, or under a claim of title in himself, he is exempt from a charge of larceny, however mistaken the claim may be in fact. It is a matter of evidence for the jury whether property was bona fide so taken, or whether it was taken with felonious intent.'

A similar statement was made in People v. Hillhouse, 80 Mich. 580, 45 N.W. 484 (1890):

'In all cases where one in good faith takes another's property under a claim of right so to do, or of title in himself, he is exempt from the charge of larceny, however puerile or mistaken the claim may in fact be. 2 Bish.Crim.Law (7th Ed.), § 851, and cases cited in note 5; Rex v. Hall, 3 Car. & P. 409; 3 Chit.Crim.Law, 926; People v. Eastman, 77 Cal. 171, 19 Pac.Rep. 266. It is a matter of evidence for the jury whether it was bona fide so taken, or whether it was taken from the person actually in possession of it with felonious intent. 2 Russ.Crimes, 105.' See also People v. McCann, 42 Mich.App. 47, 201 N.W.2d 345 (1972) and People v. Shaunding, 268 Mich. 218, 255 N.W. 770 (1934).

The cases of Driscoll v. People, 47 Mich. 413, 11 N.W. 221 (1882), and People v. Henry, 202 Mich. 450, 168 N.W. 534 (1918), both involved charges of [63 MICHAPP 712] armed robbery. In both cases it was said that if the defendant, in good faith, believed that the money which he demanded was his money, or that he was entitled to its possession, he could not be guilty of the crime of robbery, despite the use of force, because there would be no felonious intent.

Two statements from 52A C.J.S. Larceny §§ 25--26, pp. 448--450, are directly supportive of the defendant's contention: (1) One who takes the property of another by the authority of a third person whom he believes in good faith to be the owner or entitled to the possession is not guilty of larceny. (2) If the property is taken by the creditor in the honest, although mistaken, belief that he has a right to pay himself the debt in this way, however, there is no felonious intent and the taking is not larceny.

Based on the above authorities, we hold that the instruction given by the trial court was an erroneous statement of the law.

The question now arises as to whether this error constituted reversible error. The people contend that if there is no evidence that the accused took the property under any bona fide claim of ownership or right therein, or if the accused's own evidence tends to prove the contrary, no jury question is presented and the error would therefore be harmless. However, the converse is also true. Where there is some evidence that the accused took the property under a bona fide claim of right, the court should give an appropriate instruction covering this defense. 52A C.J.S. Larceny § 150, pp. 702--703. See also Gillespie, supra, and Hillhouse, supra.

As stated in People v. Reed, 393 Mich. 342, 224 N.W.2d 867 (1975):

'The instruction to the jury must include all elements[63 MICHAPP 713] of the crime charged, People v. Liggett, 378 Mich. 706, 714, 148 N.W.2d 784 (1967), People v. Pepper, 389 Mich. 317, 322, 206 N.W.2d 439 (1973), and must not exclude from jury consideration material issues, defenses or theories if there is evidence to support them. 22 Michigan Law & Practice, Trial, § 236, p. 386.' (Emphasis added.)

After a careful review of the evidence in the instant matter, we find that there was no evidence presented to support the defendant's theory that he took the property under a bona fide claim of right and that, as a result, the trial court did not commit reversible error by excluding this issue from the jury's consideration.

In reaching this conclusion, we rely on the defendant's own testimony at trial. He admitted that he was engaged in collecting money from illegal activities and that he knew that the alleged debt in question was a product of such illegal activities. We hold that such knowledge negates the existence of good faith on the part of the defendant. His own testimony conclusively showed that he did not in good faith believe that he was legally entitled to the possession of the bonds and, likewise, it showed that he did not believe that either he or his principal had a bona fide claim of right thereto.

As stated in 52A C.J.S. Larceny § 26, pp. 449, 450:

'Where one, In good faith, takes the property of another and converts it to his own use, Believing it to be legally his own, or that he has a legal right to its possession, he is not guilty of larceny * * * It is necessary, however, in all cases that the claim of right be a bona fide one, and not a mere cover for a felonious taking. The taker's claim of right must be something more than a vague impression; it must amount to an honest conviction.' (Emphasis added.)

[63 MICHAPP 714] Under these circumstances, defendant was, therefore, not entitled to an instruction directing the jury's attention to the issue of whether the property was taken under a bona fide claim of right, as his own testimony negated this defense.

Defendant also contends that it was reversible error for the trial court to deny his request for an instruction to the lesser included offense...