People v. Keatts

• Decision Date: 12 August 1974
• Docket Number: Docket No. 16631,No. 1,1
• Citation: 54 Mich.App. 618,221 N.W.2d 455
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond KEATTS, also known as Melvin Bell, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 455

221 N.W.2d 455

54 Mich.App. 618

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond KEATTS, also known as Melvin Bell, Defendant-Appellant.

Docket No. 16631.

Court of Appeals of Michigan, Division No. 1.

Aug. 12, 1974.

Released for Publication Sept. 13, 1974.

Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Gerard A. Poehlman, Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P.J., and McGREGOR and VanVALKENBURG,* JJ.

McGREGOR, Judge.

Defendant appeals his non-jury conviction of attempted larceny in a building, M.C.L.A. § 750.360; M.S.A. § 28.592, M.C.L.A. § 750.360; M.S.A. § 28.592, M.C.L.A. § 750.92; M.S.A. § 28.287, and his subsequent sentence of 2 years probation.

Initially, defendant was charged in a one-count information of breaking and entering a building with intent to commit larceny, contrary to M.C.L.A. § 750.110; M.S.A. § 28.305.

The single issue raised by defendant on appeal is whether his conviction must be set aside for the reason that the crime of which he was convicted is not a lesser included offense of the crime of which he was charged. Only if the crime of which the defendant was convicted is a lesser included offense of the crime of which he was charged can the conviction be upheld. The question thus presented is whether attempted larceny in a building is a lesser included offense of the crime of breaking and entering a building with intent to commit larceny.

The elements for the charge of breaking and entering a building with intent to commit larceny are: (1) breaking and entering, (2) with felonious intent, (3) of an occupied dwelling. See People v. D'Argis, 44 Mich.App. 186, 205 N.W.2d 19 (1972).

Elements of the crime of attempted larceny in a building are: (1) felonious intent to commit a larceny, People v. Hillhouse, 80 Mich. 580, 45 N.W. 484 (1890), (2) an overt act going beyond mere preparation towards the commission of the crime, People v. Youngs, 122 Mich. 292, 81 N.W. 114 (1899); People v. Coleman, 350 Mich. 268, 276, 86 N.W.2d 281 (1957), and (3) that it occurred in a building. See also People v. Bowen, 10 Mich.App. 1, 7, 158 N.W.2d 794 (1968); People v. Sheppard, 33 Mich.App. 363, 189 N.W.2d 794 (1971).

This Court has defined a lesser included offense:

'Indeed, the area of what constitutes a lesser included offense has frequently caused confusion in criminal prosecutions.

'The general rule is succinctly set forth in 4 Wharton's Criminal Law & Procedure, § 1888, pp. 753, 754, wherein it is stated, 'if the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater." People v. Simpson, 5 Mich.App. 479, 485--486, 146 N.W.2d 828, 831 (1966).

The only step which remains is to compare the elements of the two charges to determine their compliance with the requirements of Simpson, supra. Such a comparison was made in People v. Huffman, 315 Mich. 134, 139--140, 23 N.W.2d 236, 238 (1946):

'In the present case it is clear that the offense of breaking and entering a store building in the nighttime with intent to commit larceny * * * is a separate and distinct offense from that of larceny from a store building, * * *. As said in People v. Stuart (274 Mich. 246, 264 N.W. 359 (1936)), 'The essential elements of these two statutory offenses are different.' Furthermore, the evidence required to establish the offense charged in the first * * * is substantially different from that required to establish the offense charged in the second.'

See also In re Doelle, 323 Mich. 241, 245, 35 N.W.2d 251 (1948).

It thus appears that, since an essential element of larceny in a building is proof that a larceny has been committed and that an overt act going beyond mere preparation has occurred, larceny in a building is not a lesser included offense. Such elements are not included under breaking and entering with intent to commit larceny. A fortiori, an essential element of attempted larceny in a building is proof that a larceny was attempted showing overt acts going beyond mere preparation. Such elements are not included in breaking and entering with intent to commit larceny. The only difference between larceny and attempted larceny seems to be the fact that the defendant was caught in the act, under attempted larceny.

Larcenous intent, necessary to be shown to convict one of breaking and entering with intent to commit larceny, does not have to show an actual larceny or the attempt to commit a larceny. Thus, in People v. Lambo, 8 Mich.App. 320, 324, 154 N.W.2d 583, 584 (1967), this Court said:

'The unexplained presence of the defendant in a grocery store at 3:45 a.m. would be sufficient alone to permit the jury to find the intent to commit larceny.'

This Court agrees with the defendant, that attempted larceny in a building is not a lesser included offense of breaking and entering with intent to commit larceny. As such, the defendant was denied due process, as he was convicted of a crime for which he was not charged. See People v. Mercer, 6...