People v. McLott
| Decision Date | 27 August 1974 |
| Docket Number | No. 2,Docket No. 16244--5,2 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick J. McLOTT and Sidney R. Gross, Defendants-Appellants |
| Court | Court of Appeal of Michigan — District of US |
John I. Bain, Bain & Shapero, Southfield, for defendants-appellants.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.
Before McGREGOR, P.J., and R. B. BURNS and O'HARA,* JJ.
On December 7, 1972, the defendants were found guilty by a jury of conspiracy to receive and conceal stolen property, M.C.L.A. § 750.157a; M.S.A. § 28.354(1), and receiving and concealing stolen property, M.C.L.A. § 750.535; M.S.A. § 28.803. The trial court sentenced both defendants toconsecutive sentences of 3 years and 4 months on each count, and they appeal as of right.
Factually, the record indicates that, on April 7, 1972, at 5:30 p.m., two police officers observed defendants in possession of a trailer containing nearly $200,000 worth of AC auto parts. The trailer was backed up to an open warehouse door at the Wolverine Expediters building. Defendant McLott was the owner of Wolverine Expediters, an auto parts company; defendant Gross was a salesman of the Wolverine Expediters. When the police arrived, Gross was observed with a box of AC auto parts, and defendant McLott was observed crouched in the truck. Gross stated that he was 'in charge', while McLott stated that he had ordered the load 'a couple days ago'. The parts in question, however, had been destined for a General Motors Parts Division warehouse in Drayton Plains, from which they had been reported missing by General Motors at 2:30 p.m. that day.
The officers asked the defendants if they had a bill of lading or other paper work pertaining to the shipment; defendants replied that they did not. Defendants were then placed under arrest, along with a warehouse employee who was observed unloading AC parts from the trailer.
The arresting officer testified that the doors to the trailer and warehouse were open and that he observed AC parts in both places while standing outside. After defendants' arrest, the officer testified, the police 'took control' of the building and the trailer. A uniformed officer was placed inside the building at all times; the goods inside the building and trailer were not removed for several days. Photographs were taken of the evidence inside the building; the physical evidence and the photographs were later admitted at trial, over defense objections. While in the police station, defendant Gross ripped up a piece of paper, which was later determined to be a tally sheet prepared by the AC Spark Plug Division of General Motors in Flint. Additional facts will be presented as necessary in the discussion of the issues raised.
Defendants first argue that the trial court erred in failing to quash the information on the grounds that there was insufficient evidence adduced at the preliminary examination with respect to the identity of the goods and the defendants' knowledge that they were stolen to warrant binding them over for trial.
With respect to the identity of the stolen goods, this Court stated, in People v. Martinovich, 18 Mich.App. 253, 257--258, 170 N.W.2d 899, 902 (1969):
'Proof that the goods found in defendants' possession were the same as the goods alleged to have been stolen must be introduced to supply a basis for the findings of probable cause required of the magistrate at the preliminary examination.'
Noting that none of the items found in defendants' possession were produced or identified by the complaining witness 'at the examination as being his and having been stolen', this Court, in Martinovich, remanded for a new preliminary examination.
However, in the present case, two employees of the AC Spark Plug Division of General Motors testified at the preliminary examination that they observed the loading of the trailer in Flint and inventoried the goods. Subsequently, they examined the trailer in defendants' warehouse and identified the goods as being those that were loaded in Flint. This testimony serves to distinguish the present case from Martinovich, supra, and is sufficient to support the trial court's finding with respect to the identity of the goods.
Defendants' assertion that the prosecution failed to adduce any testimony with respect to their knowledge that the goods were stolen is not borne out by the record. While it may be true, as defendants assert, that 'mere possession' of stolen property is legally insufficient to support a finding that they acquired possession with the requisite Mens rea, a good deal more than mere possession was shown by the prosecutor here. First, the defendants were discovered unloading the stolen merchandise only three hours after its theft was reported. Certainly, possession and use of the stolen merchandise, so near in time to its misappropriation, is some evidence that those in possession acquired it with knowledge that it was stolen. Cf. People v. Hutton, 50 Mich.App. 351, 213 N.W.2d 320 (1973). Second, one of the police officers testified that defendant Gross stated that he had no bill of lading or other paper work pertaining to the goods he was unloading from the trailer. Nevertheless, at the police station, defendant Gross ripped up a tally sheet prepared by AC Spark Plug Division, which he had had in his pocket. Defendant Gross' false statements to the police, along with his action at the police station, are further circumstances indicating that he knew the property had been stolen at the time he obtained possession. Third, defendant McLott's statement to the police officers that he had ordered the load several days before was patently false, and also indicates that he knew his possession of the merchandise was unlawful. There were sufficient other facts and circumstances, in addition to defendants' possession of the stolen property, to warrant the magistrate finding that defendants acquired the property with the requisite Mens rea and binding them over for trial. Cf. People v. Tantenella, 212 Mich. 614, 180 N.W. 474 (1920).
Defendants' second argument--that the trial court erred in denying their motion at trial for a directed verdict--is premised on this same assertion, that nothing more than mere possession was shown and, hence, the necessary Mens rea was not established. Since the testimony with respect to this issue at the preliminary examination and at trial was essentially the same, we need not discuss again the additional evidence tending to show that defendants received the stolen property with knowledge that it was stolen. Since there was some evidence, either direct or circumstantial, presented on each material element of the offense, defendants' motion for a directed verdict was properly denied. People v. Garcia, 33 Mich.App. 598, 190 N.W.2d 347 (1971).
Defendants next argue that the trial court committed reversible error in refusing to give their requested instruction regarding guilty knowledge.
Defendants requested the following instruction:
'Mere possession of stolen property, standing alone and unconnected with any other circumstances, does not afford a presumption of guilt, and under such circumstances, the defendants' possession must be regarded as innocent, unless it is shown that they received the goods with knowledge that they had been stolen, or, under such circumstances as to justify you jurors finding that they possessed such knowledge at the time the goods came into their possession.'
The trial judge declined to give the instruction requested because it would be 'repetitious' but said that he would 'give carefully the elements of the crime which includes the element of knowledge'. Defense counsel then noted 'I think anything short of an instruction substantially to this wording would not do justice, would not clear the minds of the jury'. Defense counsel reiterated his objection at the conclusion of the trial court's charge to the jury.
The trial court must instruct the jury as to all the essential elements of the crime. People v. Hooper, 50 Mich.App. 186, 212 N.W.2d 786 (1973); People v. Miller, 35 Mich.App. 627, 192 N.W.2d 517 (1971). Further, the entire charge is considered in determining whether the court's instructions were proper. People v. Mayberry, 25 Mich.App. 677, 181 N.W.2d 616 (1970); People v. Thomas, 7 Mich.App. 519, 152 N.W.2d 166 (1967).
In the present case, the trial court instructed the jury several times that guilty...
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