People v. Tolliver

• Citation: 46 Mich.App. 34,207 N.W.2d 458
• Decision Date: 28 March 1973
• Docket Number: No. 1,Docket No. 13956,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael TOLLIVER, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 458

207 N.W.2d 458

46 Mich.App. 34

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael TOLLIVER, Defendant-Appellant.

Docket No. 13956.

Court of Appeals of Michigan, Division No. 1.

March 28, 1973.

Released for Publication May 30, 1973.

Charles Burke, 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 FITZGERALD, P.J., and McGREGOR and TARGONSKI, ^* JJ.

FITZGERALD, Presiding Judge.

Defendant was charged with unarmed robbery ¹ and appeals as of right from a jury conviction of larceny from the person. ² The sole question is whether it was error for the judge to instruct the jury on the lesser included offense of larceny from the person.

Complainant, Alex Vaughn, was working late at a printing shop on Vernor Highway and Beaufait in Detroit and decided to buy some milk at a grocery store across the street. Upon his return, Mr. Vaughn was allegedly tripped by the defendant who was hiding behind some hedges surrounding the printing shop. The defendant allegedly kicked Mr. Vaughn in the face, stated 'I want your money', removed Mr. Vaughn's wallet and wristwatch, and swiftly departed.

The police responded to Mr. Vaughn's call for help and searched the immediate neighborhood in a scout car, accompanied by the complainant. Mr. Vaughn described the assailant as being a colored male about six feet tall wearing an orange or yellow shirt or jacket and a wide rimmed black hat. The police approached a nearby school yard and observed a man fitting the description given by complainant. Defendant, Michael Tolliver, was then arrested by the police on the basis of Mr. Vaughn's description. The defendant was accompanied by his girl friend Alindra Huffman, at the time of his arrest. He stated he was returning to his home following an errand to the grocery store for his grandmother. This explanation was corroborated by Miss Huffman and by defendant's grandmother, Exie Tolliver, and two people he had met earlier that evening at the playground, Dwight Lewis and David Griffin.

At trial, the jury was instructed on the lesser included offense of larceny from the person. Defense counsel objected to this particular instruction, but was overruled by the trial judge. The jury returned a verdict of guilty of larceny from the person. Defense counsel moved to set aside the verdict contending that the evidence presented failed to show larceny from the person and constituted an obvious compromise verdict. Defendant now appeals from a denial of his motion to set aside the verdict.

Defendant contends that the crime committed was unarmed robbery. Consequently, no question of fact exists to warrant the lesser charge to the jury of larceny from the person. The people argue that a question of fact with regard to an element of unarmed robbery did exist. They maintain that the complainant was never 'put in fear' by the perpetrator of the crime.

Larceny from the person is an included offense in indictments for robbery. Convictions of a lesser offense than robbery may result only where violence or threats or violence cannot be shown. People v. Gould, 15 Mich.App. 83, 87, 166 N.W.2d 530 (1968). The essential elements of robbery unarmed are:

'1. That the defendant by force and violence, assault or putting in fear;

'2. Feloniously took any property, which may be the subject of larceny, from the person of the complainant or in his presence, and

'3. That the defendant was not armed with a dangerous weapon.' 4 Gillespie, Michigan Criminal Law & Procedure (2d ed.), § 2218, p. 2442.

The disjunctive nature of the first element provides alternative methods by which a perpetrator may obtain the property. Contrary to the people's contention, putting the complainant in fear is not one of the requisite elements of unarmed robbery. It is sufficient that defendant act with force and violence. In the instant case, the complainant offered uncontradicted testimony that he was kicked in the head, allegedly by the defendant. This was corroborated by one of the police officers who came to his aid. At no time was testimony offered which contradicted evidence of the use of force and violence.

Defendant contends that in order for the court to charge the jury in relation to lesser degrees of an offense there must be introduced evidence in support of the lesser crime. We agree. Where no disputed issues of fact exist which would justify a jury instruction as to a lesser crime, a defendant is not entitled to have the lesser charge included. Thus, where evidence is only of the greater...