People v. Price, Docket No. 59658

• Decision Date: 18 August 1983
• Docket Number: Docket No. 59658
• Citation: 337 N.W.2d 614,126 Mich.App. 647
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stanley Scott PRICE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 614

337 N.W.2d 614

126 Mich.App. 647

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stanley Scott PRICE, Defendant-Appellant.

Docket No. 59658.

Court of Appeals of Michigan.

Submitted Jan. 20, 1983.

Decided June 22, 1983.

Released for Publication Aug. 18, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Don W. Atkins, Asst. Pros. Atty., for the People.

Michael J. Brady, Southfield, for defendant-appellant.

Before T.M. BURNS, P.J., and MAHER and HOOD, JJ.

PER CURIAM.

Defendant was convicted by a jury of receiving and concealing stolen property over $100, M.C.L. Sec. 750.535; M.S.A. Sec. 28.803 and was sentenced to from two to five years imprisonment. Appealing as of right defendant raises three issues, one of which requires reversal.

Defendant argues that the trial court improperly granted the prosecutor's motion to amend the information. The information charged the defendant with breaking and entering a business place with the intent to commit larceny therein, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, and he was bound over on that charge after a preliminary examination. At the close of the trial, the court discussed with counsel the instructions to be given to the jury. During the discussion, defense counsel stated: "The prosecutor asked for a count of receiving and concealing stolen property". We view this as a request made by the prosecutor even though it came out of the mouth of defense counsel. Moreover, we construe the request for a "count" of receiving and concealing stolen property as a motion to amend the information to add that offense. When the court gave the requested instruction it effectively amended the information. The Supreme Court reached similar conclusions in People v. Williams, 412 Mich. 711, 316 N.W.2d 717 (1982). In that case, the defendant and a codefendant were charged with first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). After the trial court granted the codefendant's motion for a directed verdict of acquittal, defense counsel requested that the court instruct the jury that it could convict the defendant of being an accessory after the fact. The trial court gave the instruction. The Supreme Court said:

"We regard the defendant's action in prevailing upon the trial court to instruct the jury on the charge of accessory after the fact to have been the equivalent of a motion to amend the information * * *. [T]he trial court agreed to so instruct the jury, thus effectively amending the information." 412 Mich. 714, 316 N.W.2d 717.

Consequently, the issue we must decide is whether the trial court properly granted the prosecutor's motion to amend the information to include an additional count of receiving and concealing stolen property.

M.C.L. Sec. 767.76; M.S.A. Sec. 28.1016 authorizes the trial court to amend the information. It provides in pertinent part:

"The court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence. If any amendment be made to the substance of the indictment or to cure a variance between the indictment and the proof, the accused shall on his motion be entitled to a discharge of the jury, if a jury has been impaneled and to a reasonable continuance of the cause unless it shall clearly appear from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made or that his rights will be fully protected by proceeding with the trial or by a postponement thereof to a later day with the same or another jury."

It is well settled that the statute does not permit an amendment for the purpose of adding a new offense. People v. Sims, 257 Mich. 478, 481, 241 N.W. 247 (1932); People v. Burd No. 1, 13 Mich.App. 307, 316, 164 N.W.2d 392 (1968). Instead, the statute "permits only cure of defects in the statement of the offense which is already sufficiently charged to fairly apprise the accused and court of its nature". People v. Sims, supra, 257 Mich. p. 481, 241 N.W. 247. As such, the statute is grounded in an accused's right to due process of law.

Our appellate courts have not hesitated to reverse convictions based on an information amended to include a different offense. In People v. Burd No. 1, supra, the defendant was originally charged with breaking and entering with the intent to commit a larceny. Prior to trial, the trial court granted the prosecution's motion to charge, instead, breaking and entering with the intent to commit "a felony". This Court reversed, noting that these two crimes are "totally different". 13 Mich.App. 316, 164 N.W.2d 392. In People v. Gibbons, 260 Mich. 96, 244 N.W. 244 (1932), the information charged the defendant with attempted rape, but was amended at trial to charge assault with intent to commit rape. Because these crimes are different and the latter punished more severely, the Supreme Court reversed the defendant's conviction. Although not decided under the above statute or any of its predecessors, the Court in People v. Handley, 93 Mich. 46, 52 N.W. 1032 (1892), reversed the defendant's conviction for reasons similar to those relied upon in Burd, supra, and Gibbons, supra. The defendant was charged with burning the "dwelling-house" of William Anderson. After the people rested, the defendant moved for a directed verdict of acquittal because it had not been shown that Anderson ever lived in the house. The prosecutor countered by moving to amend the information to charge the burning of a "vacant" dwelling-house. The court permitted the amendment and the defendant was convicted. On appeal, the Supreme Court found that the amended information charged a different offense and reversed.

An amendment to an information which charges a different offense may also violate the defendant's statutory right to receive a preliminary examination. M.C.L. Sec. 767.42(1); M.S.A. Sec. 28.982(1) provides in pertinent part:

"An information shall not be filed against any person for a felony until such person has had a preliminary examination therefor, as provided by law, before an examining magistrate, unless that person waives his statutory right to an examination."

The purpose of the preliminary examination is to determine whether there is probable cause to believe that a crime has been committed and that the defendant committed it. People v. Duncan, 388 Mich. 489, 502, 201 N.W.2d 629 (1972).

The Supreme Court has held that "the jurisdiction of the circuit court is limited to the crimes included within the return of the examining magistrate". People v. Monick, 283 Mich. 195, 199, 277 N.W. 883 (1938). In Monick, supra, the information charged that the defendant "did attempt to break and destroy a safe * * * ". After the people had rested, the information was amended to add the words: "with the intent to commit the crime of larceny". On review, the Supreme Court concluded:

"The amendment of the information in the circuit court to include an allegation of the larcenous intent with which the act was committed charged a different crime than that which the examining justice included in his return, namely, attempt to break and destroy a safe. The circuit court, therefore, had no jurisdiction over the crime stated in the amended information." 283 Mich. 200, 277 N.W. 883.

The Court reversed the defendant's conviction. In People v. Hicks, 22 Mich.App. 446, 178 N.W.2d 193 (1970), the information charging the defendant with knowingly possessing a stolen motor vehicle was amended to add a count of unlawfully driving away a motor vehicle. This Court, as well as the people, agreed with the defendant's allegation that "the trial court committed reversible error by allowing the amendment to the information which added the second count, thereby depriving defendant of his right of examination on the second charge". 22 Mich.App. 448, 178 N.W.2d 193. See also, People v. Burd No. 1, supra, pp. 317-318, 164 N.W.2d 392.

In the present case, the amendment is defective under both of the above theories. First, the amendment added a new offense to the information. Breaking and entering a business place with the intent to commit larceny and receiving and concealing stolen property are prohibited by different statutes and the crimes have different elements. See People v. Matuja, 77 Mich.App. 291, 295, 258 N.W.2d 79 (1977). By adding a new offense to the information the trial court exceeded its authority to amend an information under M.C.L. Sec. 767.76; M.S.A. Sec. 28.1016. We note that this case is distinguishable from People v. Williams, supra. In Williams, the Court upheld the defendant's conviction even though the amended information charged a different offense. The dispositive fact was that the defendant, rather than the people, moved to amend. In the present case, the prosecutor moved to amend the information. People v. Kyllonen, 402 Mich. 135, 262 N.W.2d 2 (1978), is also distinguishable. That case held that a...