People v. McGuire

• Decision Date: 22 March 1972
• Docket Number: Docket No. 11001,No. 2,2
• Citation: 39 Mich.App. 308,197 N.W.2d 469
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter Lee McGUIRE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 469

197 N.W.2d 469

39 Mich.App. 308

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter Lee McGUIRE, Defendant-Appellant.

Docket No. 11001.

Court of Appeals of Michigan, Division No. 2.

March 22, 1972.

Released for Publication May 25, 1972.

Leave to Appeal Denied July 12, 1972.

Arthur J. Tarnow, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and BRONSON and TARGONSKI, ^* JJ.

TARGONSKI, Judge.

On October 16, 1970, defendant, Walter Lee McGuire, was convicted by a jury of armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797. He was sentenced to a term of 5 1/2 to 15 years in prison. An application for leave to file a delayed motion for a new trial was denied by the trial court.

About 11:20 p.m. on July 11, 1970, defendant and a friend called Duane, both wearing hoods over their heads and carrying sawed-off shotguns, forced their way into Val's Market as two employees, James Howard and Robert Bowman, were starting to leave after cleaning up the store for the night. Bowman testified that Duane ordered Howard to open the office safe and they replied that they did not know the combination to it. Defendant then demonstrated that his gun was loaded by breaking it and showing them a shell. Duane asked both Howard and Bowman for their money and took Bowman's billfold and two twenty dollar bills from Howard. Bowman further testified that Duane put the money on a desk in the office and said that they wouldn't take it if they could get into the safe. Howard then called the manager, Mr. Moses, at his home and asked him to bring his store keys out because they had locked the other set of keys in the office. For various reasons Moses became suspicious and contacted the State Police.

Meanwhile, Duane took Howard's car keys, saying that they were going to use his car to leave, and after obtaining the keys he went outside to wait in Howard's car until the manager arrived. After Moses and the State Police arrived, defendant put his gun in the side of Bowman's neck and threatened to use the gun if Moses and the police didn't leave. After a few minutes, it became apparent to defendant that he couldn't escape and he surrendered. Duane was never apprehended.

Defendant now appeals from the verdict and judgment of conviction. Six questions are raised for review.

I. Was There Sufficient Evidence to Support a Finding of Guilty Beyond a Reasonable Doubt?

During the trial, defendant conceded that he was present in Val's Market on the evening of July 11, 1970, and that he was in possession of a sawed-off shotgun when he entered with another individual. However, defendant argues that there is no testimony from which it might reasonably be inferred that he possessed specific intent to take forty dollars from James Howard. Similarly, defendant argues that there is no testimony from which it may be reasonably inferred that he even knew of the taking of one set of car keys by Duane. In other words, defendant claims that there is no evidence that he possessed the specific intent essential to constitute the crime of armed robbery. We disagree.

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 defendant contends. 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). However, M.C.L.A. § 767.39; M.S.A. § 28.979 ¹ makes it unnecessary to prove that defendant himself committed every element of a specific intent crime, provided he possessed the required specific intent or if he aided and abetted another in the perpetration of that crime knowing that the perpetrator had the required intent to commit the crime. People v. Poplar, 20 Mich.App. 132, 173 N.W.2d 732 (1969); People v. Clark, 34 Mich.App. 70, 190 N.W.2d 726 (1971).

Returning to the instant case, while the evidence of an assault made with a dangerous weapon is overwhelming, evidence going to defendant's specific intent to rob James Howard is not. Nevertheless, we find that the testimony that the victim's money was placed on the desk at gunpoint, even though there was a disclaimer of any intent to take it if the money in the safe could be taken instead, and alternatively, the testimony that the car keys were taken, was sufficient to sustain the conviction of armed robbery.

Notwithstanding the alleged disclaimer that the victim's money would not be taken if the two robbers could get into the safe, there was sufficient testimony elicited from which the jury could ascertain beyond a reasonable doubt that defendant possessed the requisite specific (felonious) intent to rob James Howard of forty dollars. The mere fact that the robbers ordered Howard to place his money on the desk was enough to present a question of fact to the jury. Any movement of goods, even if by the victim under the direction of defendant, armed with a dangerous weapon, constitutes asportation despite defendant never reducing the money to physical possession. People v. Alexander, Supra; People v. Ragland, 34 Mich.App. 624, 192 N.W.2d 5 (1971). Therefore, when Howard was directed to place his money on the desk, even though Duane picked it up but returned it to the desk, the specific intent of defendant became an issue. The jury was given a choice of whether to believe defendant's alleged disclaimer, or whether on the contrary, to believe that the alleged disclaimer was merely a sham in the hope of securing the victim's cooperation in order to get to the safe.

In the alternative, there was also sufficient evidence from which the jury could determine beyond a reasonable doubt that defendant aided and abetted his partner, Duane, in the perpetration of an armed robbery. Whether a crime committed is fairly within the scope of a common unlawful enterprise is a question of fact for the jury. People v. Poplar, Supra. When Duane took the victim's car keys under the present circumstances, there was enough evidence to clearly establish an armed robbery on the part of Duane. See, M.C.L.A. § 750.529; M.S.A. § 28.797. From the evidence presented that defendant and Duane intended an armed robbery of Val's Market, it is obvious that defendant possessed the knowledge that his confederate had the specific intent to rob, a specific intent which he in turn possessed. A mere substitution of victims did not destroy this intent, or knowledge that the other possessed it. Thus, it is immaterial under M.C.L.A. § 767.39; M.S.A. § 28.979, which robber actually took physical possession of the victim's goods. Therefore, when Duane took possession of the keys, defendant was as guilty of armed robbery under M.C.L.A. § 767.39; M.S.A. § 28.979, as Duane. Furthermore the conviction of a principal perpetrator of the crime of armed robbery is not necessary to a proper conviction of one who participated as an accessory where he was charged as a principal. People v. Miniear, 8 Mich.App. 591, 155 N.W.2d 222 (1967).

II. Did the Trial Court Err in its Instructions on Specific Intent?

Defendant argues that the court erred in failing to define 'specific intent', in failing to apply the requirement for specific intent to the facts of the case, in intimating that in the instant case drunkenness was the only testimony which could negate a finding of specific intent, and in instructing that the defendant must be so drunk that he didn't know what he was doing to negate specific intent.

Although it is apparent that the court gave the defendant's requested charges on specific intent and that defendant had no objection to the instructions given, nevertheless, where an erroneous or misleading instruction is given as opposed to one which merely omits a pertinent but not essential point, an appellate court will reverse even though no objection was made to the instruction. People v. Miller, 35 Mich.App. 627, 192 N.W.2d 517 (1971); People v. Turner, 31 Mich.App. 44, 187 N.W.2d 241 (1971); People v. Kelley, Supra. However, after a careful reading of the instructions with the aforementioned specific objections in mind, we find that they do satisfy the requirements of People v. Turner, Supra, as to instructions on armed robbery and, People v. Kelley, Supra, on intoxication as a defense to specific intent.

In People v. Turner, Supra, this Court held that charging the jury that to find the defendant guilty of armed robbery they must find beyond a reasonable doubt that the defendant assaulted the complainant and, while armed with a knife, did rob, take, and steal from the complainant's presence $47, was not reversible error even though the specific intent necessary in a robbery armed was not detailed and defined, because as used in the instruction the word 'rob' indicated a felonious and larcenous intent and no reasonable man could construe the word 'rob' to mean a taking without felonious or larcenous intent.

In the present case the trial court did instruct that it was necessary for the prosecution to establish that defendant committed an assault upon the complaining witness, that at the time of such assault he stole from the person of such witness or in his presence, money or other property which may be the subject of larceny, and that at the time of such robbery defendant was armed with a dangerous weapon...