People v. Thomas

• Decision Date: 25 February 1972
• Docket Number: No. 1,Docket No. 12057,1
• Citation: 38 Mich.App. 777,197 N.W.2d 97
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory L. THOMAS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 97

197 N.W.2d 97

38 Mich.App. 777

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory L. THOMAS, Defendant-Appellant.

Docket No. 12057.

Court of Appeals of Michigan, Division No. 1.

Feb. 25, 1972.

Released for Publication May 12, 1972.

Leave to Appeal Denied June 16, 1972.

Jane Burgess, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Gerard A. Poehlman, Asst. Pros. Atty., for appellee.

Before LEVIN, P.J., and HOLBROOK and BRONSON, JJ.

LEVIN, Presiding Judge.

The defendant, Gregory L. Thomas, was convicted by a jury of the offense of larceny from the person. M.C.L.A. § 750.357; M.S.A. § 28.589. The defense was alibi.

The trial judge charged the jury that there were three possible verdicts: (1) guilty of larceny from the person, (2) guilty of the lesser offense of simple larceny, and (3) not guilty. He refused to charge that the defendant could be convicted of the lesser offenses of attempt to commit larceny from the person or attempt to commit simple larceny.

The defendant's reliance on People v.

Lemmons, 384 Mich. 1, 178 N.W.2d 496 (1970), is misplaced. Lemmons is an exception to the general rule that it is not error to fail to charge on included offenses in a case where the defendant has not requested such a charge. It has been said that the exception recognized in Lemmons is that where a defendant is entitled to a charge on a lesser offense it is error affirmatively to exclude the lesser offense from the jury's consideration even if there is no request to charge. ¹

Here we are not confronted with the question of whether in the particular circumstances presented instructional error should be recognized on appeal even though there was a failure to request a charge; Thomas's lawyer requested a charge on lesser offenses and the request was refused. We are, rather, confronted with the antecedent question of whether Thomas was entitled to such a charge at all.

The rule is that entitlement to a charge on a lesser included offense largely turns on whether, on view of the evidence favorable to the defendant, there is evidence which would justify the jury in concluding that the greater offense was not committed and a lesser included offense was committed. ² The elements of attempted larceny are the felonious intent to commit a larceny and an overt act going beyond mere preparation towards its commission. ³ In this case all the evidence showed that there was a completed larceny. There was no evidence from which the jury could reasonably have concluded that the defendant may not have gone beyond the attempt stage. The judge did not err in refusing to give the jury the option of convicting the defendant of an attempt to commit a larceny. ⁴

The victim was an invalid who was selling newspapers from a three-wheel bicycle. He testified that he was accosted by the defendant who reached into the victim's pocket and took all his money. Although the victim conceded that Some of the money may have dropped to the ground that does not negate the evidence showing that there was an asportation. ⁵ The concession that some of the money might not have reached the defendant's pocket does not tend to show that the completed offense of larceny from the person may not have been committed.

An eyewitness observed the assault and the defendant reaching into the victim's pocket. The witness conceded that he had no way of knowing what, if anything, the defendant took from the victim's pocket. Merely because all the witnesses are unable to establish all the elements of the crime does not mean that there is uncertainty whether the only evidence establishes a completed offense. ⁶

In this case there is no inconsistency in the testimony on the factual issue of whether the greater or a lesser offense was committed. ⁷ Nor is this a case where it would have been reasonable to infer from the evidence--disputed or undisputed--that either the greater or the lesser offense was committed. ⁸ In this case the evidence is all consistent in establishing that only the greater offense was committed; it would not have been reasonable to infer from the evidence that a lesser attempted offense was committed. See People v. Tyrone Williams, 38 Mich.App. 146, 195 N.W.2d 771 (1972).

'Since the finding of intent to commit a larceny was largely based upon (the confederate's) testimony and since his testimony was inconsistent in regard to that intent, the court should have charged the jury as to the lesser included offense of breaking and entering without permission, M.C.L.A. § 750.115 (Stat.Ann.1962 Rev. § 28.310).

Implicit in the long-established rule, recently reiterated by the Michigan Supreme Court, ⁹ That it is not error to refuse to charge on a lesser offense which is not supported by the evidence, is the Court's rejection of the contention advanced by Thomas that M.C.L.A. § 768.32; M.S.A. § 28.1055 entitles every defendant in every case to a charge on 'an attempt to commit such offense' either because the statute so states or because 'every completed offense must include a successful attempt to commit the crime' ¹⁰ or because a jury may believe such portion of a witness's testimony as it chooses to believe and discard the balance. ¹¹ It is obvious, in the light of the present case law concerning entitlement to a charge on lesser offenses, ¹² that Thomas's argument has not prevailed in the councils of the Supreme Court. If the law is to be changed the Supreme Court must change it.

Affirmed.

1 People v. Membres, 34 Mich.App. 224, 232--233, 191 N.W.2d 66 (1971).

2 See People v. Loncar, 4 Mich.App. 281, 289, 144 N.W.2d 801 (1966); People v. Trilck, 25 Mich.App. 634, 181 N.W.2d 674 (1970); People v. Membres, Supra, 34 Mich.App. p. 228, 191 N.W.2d 66; People v. Hearn, 354 Mich. 468, 93 N.W.2d 302 (1958).

Similarly, see Model Penal Code (Proposed Official Draft, May 4, 1962), § 1.07(5), pp. 12--13.

As appears from the majority and dissenting opinions in Sparf v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895), and Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956), at stake is nothing less than such fundamental matters as the prosecutor's charging discretion, the court's power to control the jury, and the jury's power to acquit the guilty in the face of the evidence. See Van Dyke, The Jury as a Political Institution, 3 The Center Magazine 17 (Mar.-Apr., 1970). See, also, Sansone v. United States, 380 U.S. 343, 349, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965).

3 People v. Bowen, 10 Mich.App. 1, 7, 158 N.W.2d 794 (1968).

4 People v. Loncar, Supra, fn. 2.

5 See People v. Alexander, 17 Mich.App. 30, 32, 169 N.W.2d 190, 191 (1969), where we said that 'Any movement of the goods is sufficient to constitute an asportation', and held that a movement of the goods by the victim under the direction of the defendant should be imputed to the defendant so as to supply the necessary asportation.

6 Contrast People v. Williams, 14 Mich.App. 186, 188, 165 N.W.2d 296 (1968), where there were other participants in an affray besides the defendant and it was not clear whether the defendant was part of the criminal concert of action charged in the information--armed robbery--or merely an opportunist who seized some of the fruits and, therefore, was guilty only of the lesser offense of larceny from a person.

7 See, E.g., People v. Williams, Supra, p. 188, 165 N.W.2d 296; People v. Blevins, 30 Mich.App. 72, 75, 186 N.W.2d 82 (1971); People v. Brooks, 37 Mich.App. 403, 194 N.W.2d 722 (1971). In Brooks the defendant was convicted of breaking and entering with intent to commit a larceny. A confederate testified that the men involved in committing the charged offense thought the building they broke into was vacant and they just wanted to 'explore' it. Later he testified that they wanted to obtain some money. We reversed because the judge refused to charge on breaking and entering without permission. We observed:

'It is error to fail to instruct on a legally possible included offense if supported by competent testimony.

"'A party is entitled to have specific charges upon the law applicable to each of the various hypotheses or combinations of facts which the jury, from the evidence, might legitimately find, and which have not been covered by other instructions.' People v. Parsons (syllabus), 105 Mich. 177, 63 N.W. 69 (1895).' People v. Hoefle (1936), 276 Mich. 428, 431, 267 N.W. 644, 645.'

In Sansone v. United States, Supra, 380 U.S. pp. 349--350, 85 S.Ct. p. 1009, the United States Supreme Court said:

'(A) lesser-offense charge is not proper where, on the evidence presented, the factual issues to be resolved by the jury are the same as to both the lesser and greater offenses. (Citations omitted.) In other words, the lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater. A...