People v. Williams, 54
| Decision Date | 04 December 1962 |
| Docket Number | No. 54,54 |
| Citation | 118 N.W.2d 391,368 Mich. 494 |
| Parties | PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Edward John WILLIAMS and Evelyn Walker, Defendants and Appellants. |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Eugene Krasicky, Sol. Gen., Samuel H. Olsen, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Detroit, for the People.
Albert A. Goldfarb, Detroit, for defendants and appellants.
Before the Entire Bench, except ADAMS, J.
Defendants were convicted of larceny in a building. The parties agree that the applicable statute is C.L.1948, § 750.360 (Stat.Ann.1954 Rev. § 28.592), which reads:
'Any person who shall commit the crime of alrceny by stealing in any dwelling house, house trailer, office, store, gasoline service station, shop, warehouse, mill, factory, hotel, school, barn, granary, ship, boat, vessel, church, house of worship, locker room or any building used by the public shall be guilty of a felony.'
The structure in which the people allege the larceny occurred is described as being 7 feet, 7 inches high, 15 feet, 1 inch long, and 33 inches wide. According to the owner's testimony it is constructed of metal, attached to the land, bolted down to cement, entirely enclosed, a covered shed, it has overlapping doors with a steel bar coming down through the outside door and a padlock attached through the steel rod. In it tires were stored and displayed in 2 tiers, with a capacity for 100 tires. It had been constructed on the premises and located about 38 feet from the main gasoline service station building located on the same premises. On the night in question the doors had been closed and locked, but afterwards the mentioned rod on the door had been sawed apart, the lock removed, the door opened, and 5 tires taken.
Is the structure in which the larceny was committed a building within the meaning of the quoted statute? Defendants say it is merely a tire rack. They suggest that it comes within the meaning of C.L.1948, § 750.114 (Stat.Ann. § 28.309), making it a misdemeanor to break and enter, with intent to commit the crime of larceny, 'any outside show case or other outside enclosed counter used for the display of goods * * *'. We think the structure here involved is considerably more than a show case or counter in the ordinarily accepted sense of the terms.
Defendants cite Rouse v. Catskill & N Y. Steamboat Co., 59 Hun 80, 13 N.Y.S. 126, in which it was held that a vessel is not a building within the meaning of an ordinance prohibiting the sale of liquor in a building; Town of Union v. Ziller, 151 Miss. 467, 118 So. 293, 60 A.L.R. 1155, in which a metal billboard was held not to be a building under an ordinance prohibiting metal buildings; Truesdell v. Gay, 13 Gray 311, 79 Mass. 311, in which a wall around 3 sides of the stack of an iron furnace to protect the stack from earth sliding down a hill behind it is not a building within the lien law, to permit a lien to attach to it; Whiteley v. Mayor and City Council of Baltimore, 113 Md. 541, 77 A. 882, in which it was held that, in a street opening proceeding in which it was required that a map be filed showing lots and buildings to be taken, it was not necessary to show a portable schoolhouse thereon because it was intended to be there only temporarily and was not a building to be taken or destroyed for the street opening; Bailey v. Ohio, 26 Ohio Cir.Ct. 375, in which a chicken coop 37 3/4 inches by 38 inches by 2 feet high, which was moved from place to place and not attached to the ground, was not a building within the meaning of a statute defining burglary as breaking and entering any building, because lacking any permanency of location as a structure. These are of scant assistance to defendants here with respect to the structure of the size, permanent character and type of construction and attachment to the realty here involved.
In Truesdell the following was said:
This structure comes well within this definition of a building.
In Sanchez v. People, 142 Colo. 58, 349 P.2d 561, 78 A.L.R.2d 775, we find in the syllabi (P.2d) the following:
'1. All stationary structures within State, no matter of what substance they may be constructed, are within term 'building' as used in burglary statute, so long as they are designed for use in position in which they are fixed.
'2. Although a telephone booth may be only a closet by dictionary definition when within another structure, it is a 'building' within purview of burglary statute when set apart. * * *
'4. Under statute defining burglary as entry with felonious intent into any building, defendant who was prying cover off coin box in outside telephone booth was guilty of 'burglary'.'
By the same token, whatever term might be applicable to the structure here involved if it were inside another building, set apart and outside, as it was, it was a building within the meaning of the applicable statute.
Was evidence taken by officers from defendants' car (5 automobile tires) unlawfully seized and, therefore, should it have been suppressed as such upon defendants' motion to suppress filed and heard by the court in advance of trial?
At the preliminary examination the arresting officer testified, in substance, that at about 3:30 a. m., while assigned to scout a certain area, he received radio instructions to go to a specific location because of a report of the presence there of a suspicious looking man; that the officer went as directed and saw a citizen on the sidewalk who told him that he had seen a suspicious man rolling a new, packaged or wrapped tire on the street toward an automobile still parked nearby and that the man had placed the tire either in the trunk or under the rear end of the car; that he, the officer, thought this might mean that the tire had been stolen because at that hour of the night no tire sales place was open in that neighborhood in which a new tire might be purchased; that, in consequence, he shined a flashlight into the car and found the two defendants hiding in the front of the car, lying in a prone...
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