People v. Tiszae, Docket No. 7438
| Decision Date | 31 March 1970 |
| Docket Number | Docket No. 7438,No. 1,1 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Allen TISZAE and David Wendler, Defendants-Appellants |
| Court | Court of Appeal of Michigan — District of US |
Frederick G. Buesser, III, Detroit, for defendants-appellants.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnvoale, Chief, Appellate Div., Ptricia J. Pernick, Asst. Rpos. Atty., for plaintiff-appellee.
Before R. B. BURNS, P.J., and HOLBROOK and T. M. BURNS, JJ.
This case is submitted on the People's motion to affirm pursuant to GCR 1963, 817.5(3). Defendants were convicted by a jury of breaking and entering a business place with intent to commit a larceny (MC.L.A. § 750.110 (Stat.Ann.1970 Cum.Supp. § 28.305)) on December 16, 1968. Defendants were sentenced to 3 to 10 years in the State prison.
On appeal, defendants assert that there was insufficient proof to establish the corpus delicit of the crime charged and that the trial judge should have instructed the jury as to the lesser offenses of entering without breaking and entering without breaking and without permission. See M.C.L.A. §§ 750.111; 750.115 (Stat.Ann.1970 Cum.Supp. § 28.306; Stat.Ann.1962 Rev. § 28.310).
After a careful review of the record, we believe that the evidence is more than sufficient to substantiate the corpus delicti of the crime charged. Defendants were arrested by officers in the store at 3:25 a.m. with guns in their hands and merchandise scattered about the gun department. Moreover, a window had been broken since the time that the store had closed. We deem the case of People v. Lambo (1967), 8 Mich.App. 320, 154 N.W.2d 583 controlling with respect to the facts of the instant case.
Moreover, there were sufficient facts to convict each defendant of the crime individually, M.C.L.A. § 767.39 (Stat.Ann.1954 Rev. § 28.979).
Finally, we find that there was no evidence to substantiate an instruction by the trial judge on the lesser included offenses. See People v. Carabell (1968), 11 Mich.App. 519, 161 N.W.2d 776. That there was a 'breakng' cannot be disputed. People v. White (1908), 153 Mich. 617, 621, 117 N.W. 161. Motion to affirm is granted.
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