People v. Stevens, Docket No. 3298
| Decision Date | 19 March 1968 |
| Docket Number | No. 1,Docket No. 3298,1 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Henry STEVENS, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Harry Riseman, Riseman, Lemke & Piotrowski, Detroit, for appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Angelo A. Pentolino, Asst. Pros. Atty., Wayne County, Detroit, for appellee.
Before LESINSKI, C.J., and KAVANAGH and GILLIS, JJ.
James Stevens was convicted of armed robbery. C.L.S. 1961, § 750.529 (Stat.Ann.1968 Cum.Supp. § 28.797). He brings this appeal claiming error in the trial court's charge to the jury and in the court's refusal to admit certain testimony by defendant.
According to the testimony of George Montie, Jr., on March 22, 1966 James Stevens and Emanuel Gomez entered his store and after making a purchase, Gomez, pointing a gun, said 'a hold up,' 'get in the back of the store.' Both Stevens and Gomez accompanied complainant into the back where Gomez took money from a safe and placed it in a satchel. Further threats by the defendants forced the complainant to tell of additional money under a desk. Stevens said, 'Why give your life for this little amount?' and then he took the money from under the desk. Defendant Gomez struck the complainant, stunning him momentarily. The police arrived, having been notified by an alarm on the safe, confronted defendants in their acts and arrested them. Both were charged with robbery armed.
Defendant Stevens' testimony was that he entered complainant's store with Gomez to make a purchase, and that he was preparing to leave the store when Gomez pulled a gun. He admits presence at the scene but disclaims any participation in the crime, alleging that he was an innocent bystander, that he took no part in the robbery, had no intention of perpetrating a robbery or of assisting Gomez, and was in fact a victim of circumstances at the time the robbery was committed. He now argues that if, as the jury may have found, he did tell the complainant not to endanger his life and did put money in the valise, he would be guilty only of larceny from the person, maintaining this to be a lesser but included offense in the crime of robbery. At the trial, he claims he attempted to testify that he had requested the arresting officers to take fingerprints from the money in the satchel but that his request was ginored. Defendant argues that the trial court erroneously sustained an objection to such testimony.
Defendant was found guilty as charged. On appeal he claims three points of error:
1. That the trial court erred in failing to instruct the jury on the lesser offense of larceny from the person.
2. That the jury should have been advised to consider whether or not he was guilty of aggravated assault.
3. That testimony regarding a request for fingerprints was erroneously excluded.
These first two assertions of error indicate confusion about the duty of the trial judge to instruct. Where a request has been made to charge on a lesser, included offense, the duty of the trial judge is determined by the evidence.
If evidence has been presented to support a conviction of the lesser offense, the requested instructions must be given; failure to do so would constitute error. People v. Jones (1935), 273 Mich. 430, 263 N.W. 417. If, on the other hand, no evidence has been presented to support a conviction of the lesser offense, then the requested instruction should be refused. People v. Utter (1921), 217 Mich. 74, 185 N.W. 830; People v. Hearn (1958), 354 Mich. 468, 93 N.W.2d 302.
Where no request to charge on the lesser offense has been made but evidence exists to support a conviction of the lesser offense, the trial judge may, Sua sponte, instruct on the lesser offense. People v. Milhem (1957), 350 Mich. 497, 87 N.W.2d 151. If, however, no such evidence exists and no request has been made, failure of the trial court to instruct on a lesser offense is not error. C.L.1948, § 768.29 (Stat.Ann.1954 Rev. § 28.1052).
In this case, defendant made no request for a specific charge to the jury, and no evidence of a lesser offense was presented. The evidence is undisputed that the defendant Stevens was present in the store, that Gomez had a gun, that the...
To continue reading
Request your trial
-
People v. Smith-Anthony
...Appeals cases took the same approach as Gadson and applied the physical-possession standard to the crime of larceny from the person. In People v. Stevens, the defendant and his accomplice were convicted of robbery after they took money from a safe and from under a desk while they held a sto......
-
People v. Page
...instructions on necessarily included offenses must be given. People v. Hearn, 354 Mich. 468, 93 N.W.2d 302 (1958), People v. Stevens, 9 Mich.App. 531, 157 N.W.2d 495 (1968), and a large number of other opinions before Ora Jones supported the trial court's refusal to instruct on attempted ar......
-
People v. Kamin
...386, 236 N.W.2d 463. Within this confusing tableau, one of the better expositions of Michigan law was found in People v. Stevens, 9 Mich.App. 531, 533-534, 157 N.W.2d 495, 497 Lv. den. 381 Mich. 769 "Where a request has been made to charge on a lesser, included offense, the duty of the tria......
-
People v. Patterson, Docket No. 9457
...it was not error for the trial court to refuse such request. People v. Hearn (1958), 354 Mich. 468, 93 N.W.2d 302; People v. Stevens (1968), 9 Mich.App. 531, 157 N.W.2d 495. Also cited as error by the defendant was the admission into evidence of his confession. The record reveals that on tw......