People v. Turner, Docket No. 9543

• Decision Date: 19 February 1971
• Docket Number: No. 3,Docket No. 9543,3
• Citation: 187 N.W.2d 241,31 Mich.App. 44
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles TURNER, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 241

187 N.W.2d 241

31 Mich.App. 44

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles TURNER, Jr., Defendant-Appellant.

Docket No. 9543.

Court of Appeals of Michigan, Division No. 3.

Feb. 19, 1971.

Released for Publication June 8, 1971.

Brian Mark Gray, Krueger & Gray, Muskegon Heights, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Paul M. Ladas, Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and R. B. BURNS and MUNRO, ^* JJ.

MUNRO, Judge.

The defendant appeals from his jury trial conviction of armed robbery. MCLA § 750.529 (Stat Ann § 28.797).

The facts here are that the complaining witness, John Brown, together with the defendant and others, spent considerable time in the drinking of alcoholic beverages at various bars during the late afternoon and evening of July 19, 1967. At the close of these drinking activities the complaining witness testified that defendant put a knife to his neck and demanded money. He further testified that he then turned over to defendant $47.00 in cash. The defendant admitted that he and others had spent several hours consuming alcoholic beverages, but denied that the robbery ever took place or that he demanded any money from the complaining witness. Defendant's motion for a new trial was denied and on appeal defendant raises two issues both of which were raised in his motion for a new trial. Those issues are:

1. Did the trial court commit reversible error by failing to instruct the jury concerning the element of intent in armed robbery?

2. Did the trial court commit reversible error by failing to charge the jury on the issue of intoxication?

The instruction given by the Trial Court on armed robbery which the defendant contends was erroneous and necessitates reversal is as follows:

'If you find from the evidence and beyond a reasonable doubt that the defendant did at the time and place make an assault on John L. Brown, and did rob, take and steal from the presence of John L. Brown $47.00 in paper currency, said defendant then being armed with a knife, then it will be your duty to convict the defendant of the offense charged against him. If, on the other hand, the prosecution has failed to convince you from the evidence and beyond a reasonable doubt of the existence of each and every element of the offense charged, as I have given it to you, or if you have reasonable doubt as to whether the prosecution has established the existence of each and every element of the offense charged, then, and in either event, it will be your duty to acquit the defendant on the charge of armed robbery.'

The record in this matter indicates that there were no objections by defendant's counsel at time of trial to the instruction as given nor was any specific request for an instruction including in detail the question of intent requested by the defendant. Armed robbery is a specific intent crime, People v. Kelley (1970), 21 Mich.App. 612, 176 N.W.2d 435, and the problem here is in large measure covered by the provisions of GCR 1963, 516.2 as modified by GCR 1963, 529.1, and further dealt with by the legislature in MCLA § 769.26. (Stat Ann 1954 Rev § 28.1096). It appears evident from the court rules and the statutory enactment that where no instruction has been offered by the defendant and refused by the court and no objections to the instructions as given are made, although opportunity for such objection is offered, the appellate courts will not reverse unless refusal to take such action appears inconsistent with substantial justice.

There is no question but what it would be better practice to detail the intent necessary in a charge of robbery armed and it has been frequently held by this Court that a trial judge has a Sua sponte duty to instruct if a subject is an essential ingredient of a charge. People v. Price (1970), 21 Mich.App. 694, 176 N.W.2d 426; People v. Sherman (1968), 14 Mich.App. 720, 166 N.W.2d 22. However, where, as in this instruction, the Court charged the jury in terms of assaulting the complaining witness and then charged them with the necessity of finding that defendant did rob, take, and steal from the presence of the complaining witness, being armed with a knife, certainly the term 'rob' in and of itself indicates felonious and larcenous intent. It is that Court's opinion that no reasonable man could construe the word 'rob' to mean a taking without felonious or larcenous intent.

The Trial Court in this matter relied on the case of People v....