People v. Miller

• Decision Date: 30 November 1970
• Docket Number: 7059 and 7362,Docket Nos. 7020,No. 1,1
• Citation: 28 Mich.App. 161,184 N.W.2d 286
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard D. MILLER, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary KISH, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alfred KISH, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 286

184 N.W.2d 286

28 Mich.App. 161

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard D. MILLER, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary KISH, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alfred KISH, Defendant-Appellant.

Docket Nos. 7020, 7059 and 7362.

Court of Appeals of Michigan, Division No. 1.

Nov. 30, 1970.

Leave to Appeal Denied in No. 7362 Jan. 21, 1971.

Released for Publication March 4, 1971.

Leave to Appeal Denied April 13, 1971.

James D. O'Connell, Highland Park, for Richard D. Miller.

Carl Levin and Arthur J. Tarnow, Legal Aid and Defender Assn., Detroit, for Gary Kish.

John L. Kadela, Dearborn, for Alfred Kish.

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

Before LESINSKI, C.J., and J. H. GILLIS and BEASLEY ^*, JJ.

J. H. GILLIS, Judge.

Defendants appeal their jury convictions of attempted rape of a female person over the age of 16 years. M.C.L.A. § 750.92 (Stat.Ann.1962 Rev. § 28.287); M.C.L.A. § 750.520 (Stat.Ann.1954 Rev. § 28.788). The information charged the completed offense; and the testimony of the complainant, if believed, established all the elements of the crime of rape, including penetration. The defendants claimed, however, that the complainant voluntarily entered their car and that she freely consented to engage in sexual intercourse. Furthermore, it was claimed that penetration never occurred.

There was testimony that defendant Miller got into the back seat of the car, removed his pants, but was unable to achieve either an erection or penetration. Defendant Gary Kish testified that he attempted to have intercourse with the complainant but was unsuccessful. Likewise, defendant Alfred Kish testified that his efforts to have sexual intercourse with the complainant were unsuccessful and that penetration did not take place. Medical testimony revealed that no sperm was found upon vaginal examination of the complainant.

Defendants' first contention is that their convictions must be reversed because the information in this case did not charge an attempt to commit, but only rape consummated. Moreover, defendants argue that on the evidence presented they could only be convicted of the completed offense, rape consummated, rather than the attempt. We are told that no evidence supports the jury's finding, implicit in its verdict, that defendants attempted to rape the complaining witness.

We need not linger long over these threshold contentions. They are wholly without merit.

"Conviction may be had of lesser offense not charged in information where it is necessarily included within greater offense that is charged.'

'In People v. Baxter (1928), 245 Mich. 229, 232 (222 N.W. 149) we said:

"Defendant invokes the rule, operative in some jurisdictions by judicial holdings, and in others by statute, that there can be no conviction of an attempt to commit a felony if the evidence establishes consummation of the felony. This is the rule in Illinois. People v. Lardner (1921), 300 Ill. 264 (133 N.E. 375, 19 A.L.R. 721). But the rule is not general, and does not prevail in this jurisdiction. If an information admits of conviction of an attempt to commit a felony, an accused may be found guilty of the attempt, though the evidence shows a completed offense. People v. Miller (1893), 96 Mich. 119 (55 N.W. 675); People v. Blanchard (1904), 136 Mich. 146 (98 N.W. 983). Such a verdict may be illogical, but the people cannot complain, and the defendant must accept it, even though less in measure than his just deserts; at least he cannot be heard to say that he has suffered injury.

"In People v. Hoover (1928), 243 Mich. 534 (220 N.W. 702), defendant was convicted of an assault, and it was urged 'that, under the proofs, defendant was either guilty of taking indecent liberties (the charge) or not guilty of any offense.' We made answer: 'This argument has been made before, but not with success;' citing People v. Martin (1919), 208 Mich. 109 (175 N.W. 233); People v. Garner (1920), 211 Mich. 44 (178 N.W. 75).'

'The offense here charged necessarily included an attempt to commit the crime of larceny in a store, and whether followed by consummation of that purpose or not did not require that it be in separate count in the information.' People v. Bradovich (1943), 305 Mich. 329, 331, 332 (9 N.W.2d 560). (Emphasis supplied.)

In the present case the charged offense necessarily included an attempt to commit the offense. See M.C.L.A. § 768.32 (Stat.Ann.1954 Rev. § 28.1055). People v. Webb (1901), 127 Mich. 29, 86 N.W. 406; see also, 2 Gillespie, Michigan Criminal Law and Procedure, § 1073, p. 1461.

Since the crime of attempted rape was, by operation of law, included in the offense charged, the trial court did not err in instructing the jury that they might find defendants guilty of attempted rape. 'Where no request to charge on the lesser offense has been made but evidence exists to support a conviction of the lesser offense, the trial judge may, Sua sponte, instruct on the lesser offense.' People v. Stevens (1968), 9 Mich.App. 531, 534, 157 N.W.2d 495, 497. This is true notwithstanding defense counsel's objection to such a charge. People v. Milhem (1957), 350 Mich. 497, 87 N.W.2d 151. On the evidence presented, the jury could have concluded that no penetration, an essential element of the crime of rape, had occurred. Crediting complainant's testimony, except as to penetration, the jury could lawfully find defendants guilty of attempted rape. See People v. Gardner (1968) 13 Mich.App. 16, 163 N.W.2d 668.

During the course of trial, a pair of nylon stockings supposedly worn by the complainant on the night of the offense were displayed in open court over objection of defense counsel. The prosecution attempted to introduce these stockings in evidence, but they were withdrawn after the prosecutor discovered that he could not determine the custody thereof. A motion for mistrial on grounds of alleged prejudice was denied by the trial court. This denial is assigned as error. We find none.

In People v. McDonald (1969), 17 Mich.App. 88, 89, 169 N.W.2d 148, 149, this Court on an analogous record held:

'A mistrial should not be declared in consequence of any mere...