People v. Midgyett

• Citation: 49 Mich.App. 663,212 N.W.2d 754
• Decision Date: 26 September 1973
• Docket Number: No. 1,Docket No. 14447,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman MIDGYETT, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 754

212 N.W.2d 754

49 Mich.App. 663

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman MIDGYETT, Defendant-Appellant.

Docket No. 14447.

Court of Appeals of Michigan, Division No. 1.

Sept. 26, 1973.

Released for Publication Dec. 14, 1973.

George Dovas, 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., Leonard Meyers, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and V. J. BRENNAN and WALSH,* JJ.

BRONSON, Presiding Judge.

Defendant, Norman Midgyett, was tried before a jury for the offense of larceny in a building. M.C.L.A. § 750.360; M.S.A. § 28.592. He was convicted on February 29, 1972 and was sentenced on March 16, 1972 to a term of from 3 1/2 to 4 years in the Southern Michigan Prison. Defendant's appeal is by right.

The offense occurred shortly prior to Christmas in 1971. On December 10, 1971 the defendant was observed by the security personnel of the Sears Roebuck store on Gratiot Avenue in Detroit. Defendant was noticed walking down an aisle with what appeared to be an empty shopping bag. Defendant entered the toy department, walked over to a shelf containing model trains and placed one box containing a train set in the bag. The bag did not conceal the box.

On attempting to leave the store, the accused by-passed a cashier. The store security personnel gave chase and apprehended the defendant in the adjacent shoe department. The box containing the train set was not produced at trial, but three Polaroid pictures, purporting to depict the same train set, were admitted into evidence. ¹ Defendant did not take the stand. His defense was that he was merely taking the train set to another register to pay for it when he was arrested by security personnel.

Defendant's first claim of error can be stated simply:

'Whether photographs may be introduced in lieu of the actual pilfered train set without allowing the jury to speculate unnecessarily as to the contents and value of the pictured train set.'

The photos here were illustrative of the size of the box and what kind of merchandise it was. The photos supplemented the testimony of the store detective in detail. The trial judge properly limited the purpose for which the photographs were admitted. In general photographs, like other kinds of demonstrative evidence, are admissible if they are helpful in illuminating any material point in issue. People v. Brannon, 14 Mich.App. 690, 692, 165 N.W.2d 903, 905 (1968). Since the photographs were admissible in all respects, it was up to the court to decide whether their probative value outweighed any prejudice to the accused. This he did. It was not error to admit them. Value of the merchandise is not an element of the offense larceny in a building. ² Therefore, even if the jury did speculate as to value, it is not prejudicial.

Defendant claims the trial court improperly utilized his juvenile record in sentencing. The juvenile record may properly be considered in the sentencing process by the sentencing judge. See People v. McFarlin, 389 Mich. 557, 208 N.W.2d 504 (1973).

Defendant next claims that the court's failure to instruct Sua sponte on lesser included offenses was error. There was no request for such an instruction by the defendant. Furthermore there is no indication that the defense relied upon any theory of attempt nor did the evidence support that theory. Additionally the trial judge did not affirmatively move to limit the jury's consideration of lesser included offenses. We find no error. See People v. Lemmons, 384 Mich. 1, 178...