People v. Lee
| Decision Date | 27 November 1968 |
| Docket Number | No. 3,Docket No. 4504,3 |
| Citation | 14 Mich.App. 328,165 N.W.2d 518 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ernest LEE, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
James G. Orford, Traxler & Orford, Bay City, for appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Martin B. Legatz, Pros. Atty., Bay County, Bay City, for appellee.
Before HOLBROOK, P.J., and T. G. KAVANAGH and McINTYRE, * JJ.
Defendant was convicted by a jury of the crime of breaking and entering with intent to commit larceny. 1 The issue raised for review is whether the people proved the requisite criminal intent for the crime of larceny.
The record discloses sufficient evidence from which the jury could find the defendant guilty of breaking and entering beyond a reasonable doubt. However, the record contains no direct and circumstantial evidence, in addition to that relating to the breaking and entering, from which defendant's intent to commit the crime of larceny could be found beyond a reasonable doubt. See People v. Boyce (1946), 314 Mich. 608, 23 N.W.2d 99, People v. Westerberg (1936), 274 Mich. 647, 265 N.W. 489, and People v. Curley (1894), 99 Mich. 238, 58 N.W. 68.
A proper disposition of this case is to set aside the sentence and to remand the defendant to the trial court with instructions to sentence the defendant for the crime of breaking and entering, 2 a lesser includable offense. People v. Sharp (1968), 9 Mich.App. 34, 155 N.W.2d 719.
Remanded for proceedings consistent with this opinion.
* ROBERT W. McINTYRE, Circuit Judge for the County of Hillsdale, appointed by the Supreme Court for the hearing month of November, 1968, pursuant to § 306 P.A.1964, No. 281.
2 C.L.1948, § 750.115 (Stat.Ann.1962 Rev. § 28.310).
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