People v. Price, Docket No. 7137

• Decision Date: 06 February 1970
• Docket Number: Docket No. 7137,No. 1,1
• Citation: 176 N.W.2d 426,21 Mich.App. 694
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank PRICE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 426

176 N.W.2d 426

21 Mich.App. 694

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

Docket No. 7137.

Court of Appeals of Michigan, Division No. 1.

Feb. 6, 1970.

Released for Publication May 1, 1970.

Abba I. Friedman, Hyman, Gurwin, Nachman, Friedman & Weingarden, 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., Thomas P. Smith, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and FITZGERALD and McGREGOR, JJ.

FITZGERALD, Judge.

Defendant Frank Price was arrested on September 23, 1967, in the city of Detroit and charged with larceny from a motor vehicle of property of value greater than $5, contrary to C.L.1948, § 750.356a (Stat.Ann.1954 Rev. § 28.588(1)). He was arraigned on a complaint and warrant on September 25 in Detroit recorder's court and a plea of not guilty was entered on his behalf. Following an examination, he was bound over for trial, and on January 24, 1967, he was arraigned on the information and stood mute, whereupon a plea of not guilty was entered on his behalf.

The trial was scheduled for December 13, 1967. However, in view of several adjournments, the matter was not heard until April of 1968. On April 4, 1968, defendant was tried by a jury which rendered a verdict of guilty and shortly thereafter he was sentenced to 3 1/2 to 5 years imprisonment.

Defendant raises several issues for consideration on this appeal, the most meritorious and the one to which the Court will address itself concerns the question of whether the trial court committed error by instructing the jury on some elements of the offense and omitting others. Defendant argues that the court failed to instruct the jury on two essential elements which constituted larceny from an automobile. Defendant cites People v. Burkardt (1965), 374 Mich. 430, 132 N.W.2d 106, for purposes of analogizing that the questioned instruction was confusing to the jury and constituted reversible error. Defendant avers that the trial court's instructions were erroneous in that they related only the elements of larceny while no specific charge was given to the effect that the jury must find that the motor vehicle was entered or broken into, and that the purpose was the larceny of goods valued in excess of $5 from the motor vehicle.

A review of the record in the instant case reveals that the statute cited, Supra, under which defendant was convicted, was read to the jury. Obviously that particular statute states that the larceny must be from an automobile. Furthermore, the uncontroverted testimony is that the larceny, if any, was from an automobile. However, following the reading of the information and statute, the court enumerated the elements of the crime of larceny but failed entirely to charge on the elements of larceny from aw motor vehicle.

It appears well settled that instructions should contain remarks which address themselves to all elements of the crime; otherwise the instructions are incomplete and may be misleading to members of the jury. It is apparent that the case at bar comes within the purview of People v. MacPherson (1949), 323 Mich. 438, 35 N.W.2d 376, wherein it was state:

'It is the duty of a trial court in charging a jury as to the elements of an offense, and what must be proved in order to establish such elements, to do so accurately. The proper protection of the rights of an accused on trial requires this to be done.'

See People v. Bowen (1968), 10 Mich.App. 1, 158 N.W.2d 794.

In spite of GCR 1963, 516.2, which states that, 'No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict * * *.' Our Supreme Court has held that there are...