People v. Smith, Docket No. 11151
| Decision Date | 28 March 1972 |
| Docket Number | No. 3,Docket No. 11151,3 |
| Citation | 197 N.W.2d 842,39 Mich.App. 575 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth E. SMITH, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Thomas R. Rensberry, Gaylord, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Randall M. O'Rourke, Pros. Atty., for plaintiff-appellee.
Before McGREGOR, P.J., and BRONSON and TARGONSKI *, JJ.
Defendant was convicted by a jury in the Otsego County Circuit Court of larceny from a motor vehicle, contrary to M.C.L.A. § 750.356a (Stat.Ann.1954 Rev. § 28.588(1)). He was sentenced to a three- to five-year prison term. He appeals of right.
Defendant raises two issues on appeal which merit consideration. The arresting officer testified that defendant told him that he had purchased or worn women's clothes to get next to a male in order to commit a robbery. The trial judge immediately instructed the jury that it could consider this answer only in determining defendant's intent to commit the crime charged. Defendant contends this testimony was irrelevant to the crime charged and should not have been introduced.
The defense put forth by defendant was that he was so 'high' on pills at the time of the crime charged that he could not have formed the requisite intent. The arresting officer's testimony, although going to intent to commit a different larceny, tended to show that defendant was capable of forming a larcenous intent at a time just prior to the commission of the crime charged. Where intent is an essential element of the crime, an overt act done with intent to commit a similar crime not accomplished is admissible to show the required intent. People v. Gengels (1922), 218 Mich. 632, 188 N.W. 398. If there was any prejudice to defendant, it was cured by the trial judge's limiting instruction.
On three occasions, witnesses made oblique references to defendant's prior criminal record. Defendant contends that, taken together, these references were prejudicial. When a defendant does not testify, evidence of former convictions is inadmissible unless relevant and material to the issue being tried. People v. Fleish (1948), 321 Mich. 443, 32 N.W.2d 700. At least one of these references was arguably material to an issue being tried. Another was an irresponsive answer to a proper question. Such answers are not reversible error. People v. Tutha (1936), 276...
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