People v. White, Docket No. 7249

• Decision Date: 24 February 1970
• Docket Number: No. 3,Docket No. 7249,3
• Citation: 22 Mich.App. 65,176 N.W.2d 723
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Earion WHITE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 723

176 N.W.2d 723

22 Mich.App. 65

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Earion WHITE, Defendant-Appellant.

Docket No. 7249.

Court of Appeals of Michigan, Division No. 3.

Feb. 24, 1970.

Released for Publication May 19, 1970.

A. Newton Dilley, Dilley & Dewey, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Wesley J. Nykamp, Chief Appellate Atty., Donald A. Johnston, III, Asst. Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and DANHOF and ROOD, ^* JJ.

PER CURIAM.

Defendant was found guilty in a nonjury trial of aiding in the concealment of stolen property knowing it to be stolen, C.L.S.1961, § 750.535 (Stat.Ann.1969 Cum.Supp. § 28.803).

On appeal defendant argues that after the proofs for both sides were in, the prosecution should not have been allowed to amend the information over objection so that following the language, 'Earion White did feloniously and unlawfully receive and conceal stolen property', was added, 'and/or aid in the concealment of stolen property'.

The prosecution relies on C.L.1948, § 767.76 (Stat.Ann.1954 Rev. § 28.1016) which purports to allow a trial court before, during or after a trial to amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence.

The Supreme Court in People v. Sims (1932), 257 Mich. 478, 241 N.W. 247 said that this language ¹ did not authorize the changing of the offense nor the making of a new charge by way of amendment, but permitted only the cure of defects in the statement of the offense which is already sufficiently charged to fairly apprise the accused and court of its nature. Being thus procedural, it does not infringe on the accused's right to be informed of the nature of the charge.

In the present case the amendment was not prejudicial to defendant. Since C.L.1948, § 767.39 (Stat.Ann.1954 Rev. § 28.979) makes aiders and abettors in the commission of a crime equally quilty with principals, we find that the amendment called for no different defense than would the original charge. Thus, allowing the amendment did not constitute error.

Defendant also alleges that the evidence produced at the preliminary examination was insufficient to show probable cause that the defendant had committed the crime charged and, further, that the evidence produced at the trial was not sufficient to support a conviction that the defendant aided in the concealment of stolen property knowing it to have been stolen.

In People v. Tantenella (1920), 212 Mich. 614, 180 N.W. 474 the court held that the evidence of the accused's guilty knowledge at the time he received the stolen property, or aided in its concealment, is generally to be collected from all the various circumstances of the case. The court said:

'Guilty knowledge means not only actual knowledge, but constructive knowledge, through notice of facts and circumstances from which guilty knowledge may fairly be inferred. (citations omitted).

'While we have held (Durant v. People (1865), 13 Mich. 351) that mere possession cannot be used as evidence to show knowledge that the goods were stolen, we have also held that the fact of recent possession of stolen property, coupled with contradictory statements of the accused as to the possession of such property and aiding in concealing such property, was evidence of guilty knowledge. (citations omitted).'

At the preliminary examination the co-owner of...