People v. Sanford

Citation237 N.W.2d 201,65 Mich.App. 101
Decision Date14 October 1975
Docket Number21149,Docket Nos. 21030
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dwight SANFORD, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Reginald Lee GARDNER, Defendant-Appellant.
CourtCourt of Appeal of Michigan (US)

Carl Ziemba, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and V. J. BRENNAN and D. E. HOLBROOK, Jr., JJ.

V. J. BRENNAN, Judge.

On May 10, 1974, a jury convicted defendants Gardner and Sanford of assault with intent to rob being unarmed, M.C.L.A. § 750.88; M.S.A. § 28.283. Both defendants received prison sentences of 2 to 15 years, and appeal as of right.

At trial, the prosecution contended that the two defendants assaulted one Booker Anderson as Anderson was leaving a drug store. Anderson was struck several times, dragged into an alley and then searched by his assailants. A neighborhood resident frightened off the attackers before they could actually take any of Anderson's possessions. Defendants were arrested the next day. They contended that Anderson incorrectly identified them as his assailants. The record does not support this contention.

Defendant next contend that the crime they were convicted of, assault with intent to rob being unarmed, is the same offense as attempted unarmed robbery. They contend that since assault with intent to rob being unarmed carries only a 15-year maximum sentence, and attempted unarmed robbery carries only a 5-year maximum, it is a denial of equal protection to have two statutes, with different penalties, prohibiting the same conduct. We disagree with defendants' theory that the two statutes are aimed at prohibiting the same conduct.

M.C.L.A. § 750.88; M.S.A. § 28.283 makes criminal any assault with intent to rob being unarmed:

'Any person, not being armed with a dangerous weapon, who shall assault another with force and violence, and with intent to rob and steal, shall be guilty of a felony, punishable by imprisonment in the state prison not more than fifteen (15) years.'

The essential elements of this crime are (1) an assault with force and violence; (2) an intent to rob and steal; and, (3) defendant being unarmed. People v. Compian, 38 Mich.App. 289, 196 N.W.2d 353 (1972). This offense requires an assault and the intent, but not necessarily the taking.

M.C.L.A. § 750.530; M.S.A. § 28.798 makes criminal any unarmed robbery:

'Any person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another, or in his presence, any money or other property which may be the subject of larceny, such robbery not being armed with a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison not more than (fifteen) 15 years.'

The essential elements of an unarmed robbery are (1) felonious taking of property from the person or presence of another; (2) by force and violence, or by assault or putting in fear; and, (3) while not armed with a dangerous weapon. See People v. Tolliver, 46 Mich.App. 34, 207 N.W.2d 458 (1973).

The elements of an attempted unarmed robbery charge would necessarily be (1) an attempted felonious taking of property from the person or presence of another; (2) by force or violence or by assault or putting in fear; and, (3) while not armed with a dangerous weapon. Under M.C.L.A. § 750.92; M.S.A. § 28.287, any attempted unarmed robbery would constitute a crime punishable by five years imprisonment.

Defendants attempt to show that attempted unarmed robbery and assault with intent to rob unarmed are the same offense by arguing that both statutes require an assault as a necessary element. This, however, is not the case. The assault with intent to rob unarmed statute speaks of 'anyone who shall assault'. The unarmed robbery statute speaks of anyone who shall rob 'by force and violence, Or assault or putting in fear'. (Emphasis added.) Defendants note this distinction, but claim that 'force and violence' is merely another way of describing an assault. Michigan criminal law, however, defines a criminal assault as any intentional, unlawful offer of violence to another with the apparent present ability to carry out the offer, creating a reasonable fear of immediate injury. People v. Carlson, 160 Mich. 426, 125 N.W. 361 (1910); Tinkler v. Richter, 295 Mich. 396, 295 N.W. 201 (1940), but see People v. Syakovich, 32 Mich.App. 356, 188 N.W.2d 642 (1971). An 'assault' requires that the victim be put in reasonable fear of immediate harm; 'force and violence' does not. A person may be 'forcefully and violently' attacked and robbed while never even seeing his...

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15 cases
  • United States v. Narciso
    • United States
    • U.S. District Court — Western District of Michigan
    • 19 December 1977
    ...In the first instance the cited case law can be countered with other state decisions to the contrary. See People v. Sanford, 65 Mich. App. 101, 237 N.W.2d 201 (1975); Madden v. State, 1 Kan. 340 (1862). The statement in C.J.S. is supported by case law from only three states, all mentioned b......
  • People v. Johnson
    • United States
    • Michigan Supreme Court
    • 29 October 1979
    ...in the disjunctive and that either definition could stand alone. See Sanford, supra, 475, 265 N.W.2d 7, citing People v. Sanford, 65 Mich.App. 101, 105, 237 N.W.2d 201 (1975).3 "At the trial defendant was permitted to testify fully as to his intent and claimed he entertained no purpose to i......
  • People v. Ford
    • United States
    • Michigan Supreme Court
    • 23 December 1982
    ...same conduct. Rather it is a case where the statutory crimes are distinct. This point was found determinative in People v. Sanford, 65 Mich.App. 101, 237 N.W.2d 201 (1975), aff'd 402 Mich. 460, 265 N.W.2d 1 (1978). The Sanford defendants argued that it was an abuse of prosecutorial discreti......
  • People v. Gardner
    • United States
    • Michigan Supreme Court
    • 17 April 1978
    ...record also reveals, "that all the jurors acknowledged to the trial judge that they agreed on the verdict." People v. Sanford, 65 Mich.App. 101, 106, 237 N.W.2d 201, 204 (1975). The jury convicted the defendants of assault with intent to rob unarmed. Both defendants received prison sentence......
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