People v. Rigsby

• Citation: 92 Mich.App. 95,284 N.W.2d 499
• Decision Date: 21 August 1979
• Docket Number: Docket No. 31077
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arthur RIGSBY, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 499

284 N.W.2d 499

92 Mich.App. 95

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arthur RIGSBY, Jr., Defendant-Appellant.

Docket No. 31077.

Court of Appeals of Michigan.

Aug. 21, 1979.

Released for Publication Nov. 9, 1979.

James R. Neuhard, State App. Defender by Kim Robert Fawcett, Asst. State App. Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief, Asst. Pros. Atty., Walter J. Piszcyatowski, Asst. Pros. Atty., for plaintiff-appellee.

Before CAVANAGH, P. J., and BASHARA and ALLEN, JJ.

PER CURIAM.

Arthur Rigsby, Jr., was convicted by a jury of possession of burglar's tools contrary to M.C.L. § 750.116; M.S.A. § 28.311, in his trial with codefendant Benjamin Harrison Boone. The charge against each defendant was submitted to the jury on theories of both principal and aider and abettor liability. M.C.L. § 767.39; M.S.A. § 28.979. He was sentenced to imprisonment for a term of 2 to 10 years, and appeals of right.

The trial court instructed the jury regarding the elements of the principal offense, possession of burglar's tools, and the elements requisite to liability as an aider and abettor. The jury was instructed that the crime charged must have been committed by one of the defendants; that one or both of the defendants must have performed acts or given encouragement which aided or assisted the commission of the crime; and that "at least one of the defendants must have intended the commission of the crime charged at the time of giving the aid or encouragement".

The defendant contends that the instructions of the trial court were deficient with respect to the crucial element of criminal intent. He maintains that the instruction allowed the jury to convict him as an aider and abettor without finding that he ever possessed any culpable intent. We agree.

The offense of possession of burglar's tools is a specific intent crime, for conviction of which it must be shown that the defendant intended to employ the tools for the illegal purpose. People v. Dorrington,221 Mich. 571, 574, 191 N.W. 831 (1923). The aider and abettor of a specific intent crime, if not himself possessed of the requisite specific intent, must be shown to have rendered his aid and assistance to the principal actor with the knowledge that the principal himself possessed the intent necessary to be guilty of the crime. People v. Gordon, 60 Mich.App. 412, 231 N.W.2d 409 (1975), Lv. den. 397 Mich. 884 (1976); People v. Poplar, 20 Mich.App. 132, 173 N.W.2d 732 (1969). While the power of the appellate court to review jury instructions in the absence of objection of counsel is discretionary and is to be used "sparingly", Hunt v. Deming, 375 Mich. 581, 134 N.W.2d 662 (1965), we are persuaded that, in light of the insufficient evidence in support of the defendant's liability as a principal offender and the circumstantial proof of his intent or knowledge as an aider and abettor, the instruction that "one" of the parties should have intended the crime was insufficient and prejudicial. As this error in jury instructions relates to a basic and controlling issue, this Court will intervene in the absence of an objection in the trial court. People v. MacPherson, 323 Mich. 438, 35 N.W.2d 376 (1949).

The other errors assigned by the defendant warrant no discussion.

Reversed and remanded.

BASHARA, Judge (dissenting).

I respectfully dissent. My examination of the...