*1 Aрp (ON REMAND) BARNES PEOPLE Opinion the Robbery—Assault to Rob—Intent—Evidence. 1. with Intent it” with no more uttered an armed “this is perpetration during of an assault is insufficient assailant the jury find a intent to rob evidence from which a can 750.89). (MCLA Statements—Admissibility. Rоbbery—Evidence—Res Gestae 2. me”, man in there is The res statement "that to a witness after an conclusionary not a statement of fact and cannot be used 750.89). (MCLA prove the matter asserted the truth of 3. Criminаl Law—Intent—Evidence—Inference. may from the facts but for Criminal be inferred underlying facts must be con- inference to be sustained presented. in the evidence tained Charge—Overcharging. Law—Improper 4. Criminal charged possibility person improperly people that a risk escape culpability overcharge offense which he will an did in fact commit. by O’Hara, J. Robbery—Assault 5. with Intent to Rob—Evidence—Questiоn Fact. knife to the throat of his victim
What a defendant who held a phrase, had it” meant and whether he and said "this is speciñc intent to rob to sustain a conviction of assault (MCLA robbery questions for to commit were 750.89). [4] [1, [2] [3] 5] 67 Am Jur 67 Am Jur 21 Am 67 Am Jur Jur 2d, Robbery 2d, 2d, References 2d, Robbery Criminal Law 18.§ Robbery §§ §§ for Points §§ 56, 49, 7, 55, 57. 83. in Headnotes op Detroit, Recorder’s Court of Appeal Vin- from Brennan, J. Submitted Division 1 Decem- cent (Docket 8115.) No. at Detroit. ber Decidеd *2 20, 1973. February C. Barnes was convicted of assault
Feaster armed. appealed. Defendant Reversed, 30 586. The App people appealed Mich Michigan Court, granted Supreme leave to the case to the Court Appeаls which remanded of consideration, 387 Mich 770. Reversal further conviction affirmed. of Kelley, Attorney
Frank J. Robert A. General, Cahalan, General, Derengoski, William L. Solicitor Carnovale, Prosecuting Attorney, Dominick R. A. Chief, Appellate Department, Robert Reuther, Prosecuting Attorney, Assistant for the people. Tangora,
Charles G. on appeal. defendant Lesinski, J., O’Hara,* Before: C. and Levin and JJ.
On Remand Lesinski, C. J. This сause was remanded to the in Appeals light Court of for consideration of Hudson, (1972), People v 386 665 Hudson, 285 App reversed 29 Mich (1970), in decided this Court. is re- initial decision in the instant cause
Our (1971). ported App at 30 Mich appeal Supreme The issue on in the Court Hudson was whether there was sufficient * Justice, Appeals by Supreme sitting Former Court on the Court 1963, 6, assignment pursuant Const 23 as amended in to art § App op conviction of sustain defendant’s unarmed rob- 750.530; bery, MSA 28.798. The MCLA Court of Hudson, Appeals, found that only testimony implicated in the directly charge crime, was that of participant an admitted Charles The Court of Appeals Garrett. found Mr. repleté Garrett’s so testimony with contradictions as of consideration. unwarranted The Court that all Appeals concluded that was established from in the the evidence record was that dеfend- present ant was the scene of the crime.
The Supreme Court did not reach the issue of Appeals whether Court acted properly disregarding as it Garrett’s found other evidence in the record of defendant’s partici- direct pation in crime sufficient sustain the jury’s verdict. The delineated the evi- *3 dence it sufficient found sustain defendant’s conviction. essence, Hudson Court found Appeals prоvince invaded the of the presented because there was which, evidence believed,
if was sufficient to convict the defendant. now reexamine instant case in the light of Hudson as decided Supreme Court. The facts in the instant case are and short we restate them.
The testimony trial showed when, exchange was hitchhiking for shortcut Michigan directions to the Depot, Central he was given a complаining ride witness. The complainant’s testimony was that while defendant directions, giving route, was en the following place took after 15 elapsed: minutes had Well, down, ”A. he told me to drive on so 'No, going said, go startеd to the viaduct. He don’t Opinion of the Court * * * way, turn I So made a left turn here.’ there and way got put time I half of the block he [sic] looked, neck; object me, it like a around razor to ” handle, it, shoved into and he 'This is old man.’ ensued, crashed, A the car struggle and defendant apprehended by bystanders. One testified that he heard witness complainant vehicle, say, exiting the crashed "That man in there is to rob me”.
Complainant’s was: testimony "A. get money He no didn’t off me [sic] ”Q. any He money, didn’t ask did he? any.
"A. He didn’t ask ”Q.I see. ” me, just "A. He told 'Old this is it.’ presented on the record Barnes jury against must be examined the charge him, lodged against namely, аssault with intent armed, rob MCLA 750.89; MSA 28.284. There can no on the facts presented in the record that if believed there was sufficient evidence to establish an armed assault upon the complainant.
Let us examine the complain- ant. "So I testified: made a left turn there and got the time I half way block put this object my neck; around [sic] me, looked handle, like a razor shoved into a *4 it, and he 'This is ”. old man’ As complain- shоws, ant’s testimony additionally quoted above complainant said that specifically was, did not money, ask for that he said all "Old man, this is it”.
If of any evidence intent is to to rob be found case, the record of this it must сome from the App 44 of it”, man, is an expression, "Old man. armed of find sufficient evidence we in mind
Keeping expression, find that we an armed it”, no more is not sufficient this is "Old specific find a can jury a from which intent to rob. it”, in our is as stated "this
The signaled a number of opinion, could initial found in a this fact can be of Evidence intentions. International, as re- Press the United report by Monday, Free Press on Detroit in The ported escape attempt bloody of August Quentin at San killed were persons six which smuggled apparently pistol was Prison when a George Jackson a visi- revolutionary to Black from the following paragraph quоte tor. We report: said Jackson Nelson "Warden Louis receiving p.m. a after about at his cell searched pistol pulled the and said: suddenly when
visitor ” 'This is it.’ allow is: "Can we ask ourselves we a from use of sрecific find a jury to a here, in a as well as used as was such phrase robbery”? did not involve prison break is no evidence in Hudson there Unlike weigh or credibility. to be tested res the after-the-fact do not оverlook a witness made to
statement statement, the crashed vehicle. he exited conclu- rob me” is in there "That man testi- This of fact. is not a statement sionary the truth prove used to mony cannot show At most can matter asserted. *5 493 O’Hara, J. Dissent made to which
accusation was defendant did not respond.1 colleague panel, this O’Hara,
Our on Justice original opinion, to the sought his dissent to take this statement and add res to it that it wаs in earshot of the defendant and left unde- him, nied and thus should be concluded that rise gave ample to an evidentiary basis for an inference an intent to rob. is problem
There one with Justice O’Hara’s that proposition and that there is no evidence that within was earshot or that his condition after the accident was such that he could responded had wanted to. he It has not been shown that he was knew sаid nor that what obligation respond. was under an We affirm that be may inferred from facts (1870). People, 19 evidence. Roberts v 401 Mich However, the inference to be sustained present. facts underlying must There was no evidence of facts that would allow an inference.
This was a in which case the defendant was overcharged. people situations such as this risk the possibility person improperly charged will escape culpability for an offense he commit, did fact as in-this case.
Reversal the conviction is affirmed.
Levin, J., concurred. affirmance). (for
O’Hara,
J.
I adhere
position
took in my dissent when this case was
upon
first passed
by this Court.
1
Todaro,
(1931);
People Bigge,
See
v
Mich 417 vеhicle when that defendant in the crashed fact made, complainant’s alleged been statement was to have probative value of this evidence is discounted since there was no showing opportunity defendant heard the accusation or had (1913). respond. People Courtney, App 44 O’Hara, disagreement col- precise point opinion revised somewhat leagues in their this. The major- remand ity holds: *6 in to rob is to be found any "If case, expression, come from the it must
record of this it’, man, by an armed man. this is 'Old find sufficient evidence of an "Keeping mind we in expression, find 'Old armed this is we it’, not sufficient evidence from no more is a rob.” a can find which it I hold is. comment on this necessary to
I feel it is also opinion. majority of the portion it’, as stated in our initial "The 'this is signaled a number of intentions. opinion, have could report by found in a fact can be Evidence of this International, reported in as The Detroit Press United Free Press on escape August bloody Monday, persons at San attempt six were killed smuggled pistоl apparently Quentin Prison when a George by a visitor. revolutionary Jackson in to Black report: quote following paragraph from the " Jackson was Louis Nelson said 'Warden receiving p.m. a cеll about 3 searched at his pistol suddenly pulled the and visitor when ’ it.” "This is allow a ourselves is: 'Can we "The we ask phrase of a specific intent to rob from use jury to find a here, prison in a break that used as well аs such as was did not involve a robbery’?” I escapes me. any, if there analogy, not phrase was point out respectfully attempt. escape at the time of the born II, as War to Marines World It was attributed an en- landing craft to storm boarded their they (but hear I did not I must confess beach emy-held v Barnes O’Hara, it). employ my anyone I L.C.V.P. Okinawa triumphantly by a it used successful heard seeking circuit, short out an elusive sеarcher just judge located a case has he was a who position support trying a he had find to taken colleagues. per- contrary all, his After to that of Humpty Dumpty haps said: it must be as just it means what сhoose to "When I use a word nor less.”1 mean—neithermore jury, it was for the as a cross- It is view that ungrate- community, say what the section of the meant he directed in this case when ful defendant given good who had Samaritan the words holding ride, a knife to his throat. while him irrespective any of whether the an- event guished cry "that man there of the victim heard the defendant and me” was *7 by him, I vote to affirm. undenied still Through Looking-Glass, Chapter Carroll, Alice Lewis