192 N.W.2d 625 | Mich. Ct. App. | 1971
PEOPLE
v.
ADAMS
Michigan Court of Appeals.
*409 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.
Jack Kraizman, for defendant on appeal.
Before: T.M. BURNS, P.J., and HOLBROOK and McGREGOR, JJ.
PER CURIAM.
Defendant was found guilty by a jury of breaking and entering an occupied dwelling with intent to commit a larceny. MCLA 1971 Cum Supp § 750.110 (Stat Ann 1971 Cum Supp § 28.305). Complainant, upon returning to his previously locked home, found defendant inside, gave chase to defendant, and apprehended him about a block away. After turning defendant over to the police, complainant returned home again. At this point, complainant observed two unknown men in his backyard who fled when he saw them. Complainant then learned that his shotgun was missing.
The trial court, in its charge to the jury, defined reasonable doubt:
"`A reasonable doubt is ladies and gentlemen, largely just what the words themselves suggest. A reasonable doubt is a doubt for which you can give a reason for entertaining, a doubt growing out of the evidence or lack of evidence in the case; a doubt which would cause you to hesitate in the ordinary affairs of life. Now, it is not a flimsy, fanciful or *410 ficticious [sic] doubt that you could raise about anything or everything, nor is it a doubt based on sympathy, bias or prejudice. It is not that kind of a doubt that excuses the defendant on which you would find him not guilty. It is rather, as I have said before, a doubt for which you can give a reason for entertaining, a doubt growing out of the evidence of lack of evidence in a case, etc.'" (Emphasis added.)
After the jury had begun deliberations, the jury requested additional instructions, asking the meaning of reasonable doubt. The court redefined reasonable doubt substantially as noted above. The jury apparently expressed further concern as to the meaning of the term "reasonable doubt". The court then tried to explain the meaning by way of an example of a reasonable doubt and an unreasonable doubt. After the jury had again retired, defense counsel moved for a mistrial, alleging that the examples were misleading. The motion was denied.
On appeal, defendant asserts that the use of the phrase "a doubt which would cause you to hesitate in the ordinary affairs of life" was erroneous, citing People v. Albers (1904), 137 Mich 678, 690, 691. While the use of such a phrase alone to define reasonable doubt may be prejudicial, the use of the phrase, when read in context with the rest of the definition, did not result in reversible error. See People v. Davis (1912), 171 Mich 241, 248.
Defendant also asserts that the use of the example of an unreasonable doubt was improper and prejudicial. While the use of examples is not to be encouraged, a review of the example given leads us to the conclusion that no prejudice resulted. The example given was very remote from the facts of this case and the jury was strongly cautioned that the example should not be taken to be a comment *411 by the court on the evidence of the case at hand. People v. Cox (1888), 70 Mich 247, 257.
Defendant further alleges that it was improper for the court to charge as to aiding and abetting. The test of whether such an instruction is proper is whether or not there has been evidence presented which supports such a theory of guilt. See People v. Ware (1968), 12 Mich App 512; People v. Dawson (1971), 32 Mich App 336. The record contains sufficient evidence from which the jury might find that the defendant was working in consort with the unidentified man seen in complainant's backyard.
Affirmed.