PEOPLE v BARNES (ON REMAND)
Docket No. 8115
Court of Appeals of Michigan
Decided February 20, 1973
44 Mich App 488
Submitted Division 1 December 7, 1970, at Detroit.
1. ROBBERY—ASSAULT WITH INTENT TO ROB—INTENT—EVIDENCE.
Thе expression “this is it” with no more uttered by an armed assailant during the perpetration of an assault is insufficient evidence from which a jury can find a specific intent to rob (
2. ROBBERY—EVIDENCE—RES GESTAE STATEMENTS—ADMISSIBILITY.
The res gestae statеment “that man in there is trying to rob me“, made by the complainant to a witness after an assault, is conclusionary and not a statement of fact and cannot be used to prove the truth of the mаtter asserted (
3. CRIMINAL LAW—INTENT—EVIDENCE—INFERENCE.
Criminal intent may be inferred from the facts but for the inference to be sustained the underlying facts must be contained in the evidence presented.
4. CRIMINAL LAW—IMPROPER CHARGE—OVERCHARGING.
The people risk the possibility that a person improperly charged by an overcharge will escape culpability for an offense which he did in fact commit.
DISSENT BY O‘HARA, J.
5. ROBBERY—ASSAULT WITH INTENT TO ROB—EVIDENCE—QUESTION OF FACT.
What a defendant who held a knife to the throat of his victim аnd said “this is it” meant by the phrase, and whether he had the specific intent to rob to sustain a conviction of assault with intent to commit robbery were questions for the jury (
REFERENCES FOR POINTS IN HEADNOTES
[1, 5] 67 Am Jur 2d, Robbery §§ 7, 55, 83.
[2] 67 Am Jur 2d, Robbery §§ 56, 57.
[3] 67 Am Jur 2d, Robbery §§ 49, 50.
[4] 21 Am Jur 2d, Criminal Law § 18.
Feaster C. Barnes was convicted of assault with intent to rob being armed. Defendant appeаled. Reversed, 30 Mich App 586. The people appealed by leave granted to the Michigan Supreme Court, which remanded the case to the Court of Appeals for further consideratiоn, 387 Mich 770. Reversal of conviction affirmed.
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.
Charles G. Tangora, for defendant on appeal.
Before: LESINSKI, C. J., and LEVIN and O‘HARA,* JJ.
ON REMAND
LESINSKI, C. J. This cause was remanded to the Court of Appeals for consideration in light of People v Hudson, 386 Mich 665 (1972), which reversed People v Hudson, 29 Mich App 285 (1970), decided in this Court.
Our initial decision in the instant cause is reported at 30 Mich App 586 (1971).
The issue on appeal in the Supreme Court in Hudson was whether there was sufficient evidence
The Supreme Court did not reach the issue of whether the Court of Appeals acted properly in disregarding Garrett‘s testimony as it found other evidence in the record of defendant‘s direct participation in this crime sufficient to sustain the jury‘s verdict. The Supreme Court delineated the evidence it found sufficient to sustain defendant‘s conviction.
In essence, in Hudson the Supreme Court found the Court of Appeals invaded the province of the jury because there was evidence presented which, if believed, was sufficient to convict the defendant.
We now reexamine the instant case in the light of Hudson as decided by the Supreme Court. The facts in the instant case are short and we restate them.
Thе testimony at trial showed that defendant was hitchhiking when, in exchange for shortcut directions to the Michigan Central Depot, he was given a ride by the complaining witness. The complainant‘s testimony was that while defendant was giving the directions, en route, the following took place after 15 minutes had elapsed:
“A. Well, he told me to drive on down, and so I started going to the viaduct. He said, ‘No, don‘t gо that
way, * * * turn here.’ So I made a left turn there and by the time I got half way of the block [sic] he put this object around my neck; it looked like a razor to me, shoved into a handle, and he said, ‘This is it, old man.’ ”
A struggle ensued, the car crashed, and defendant was apprehended by bystanders.
One witness testified that he heard complainant say, after exiting the crashed vehicle, “That man in there is trying to rob mе“.
Complainant‘s testimony was:
“A. He didn‘t get no money off me [sic].
“Q. He didn‘t ask for any money, did he?
“A. He didn‘t ask for any.
“Q. I see.
“A. He just told me, ‘Old man, this is it.’ ”
The evidence on the record presented to the Barnes jury must be examined against the charge lodged against him, namely, assault with intent to rob being armed,
There can be no question on thе facts presented in the record that if believed there was sufficient evidence to establish an armed assault upon the complainant.
Let us examine the testimony of the complainant. The complainant testified: “So I made a left turn there and by the time I got half way of the block [sic] he put this object around my neck; it looked like a razor to me, shoved into a handle, and he said, ‘This is it, old man’ “. As complainant‘s testimony additionally quoted above shows, the complainant specifically said that defendant did not ask for money, that all he said was, “Old man, this is it“.
If any evidencе of intent to rob is to be found in the record of this case, it must come from the
Keeping in mind we find sufficient evidence of an armed assault, we find that the expression, “Old man, this is it“, with no more is not sufficient evidence from which a jury can find a specific intent to rob.
The expression “this is it“, as stated in our initial opinion, could have signaled a number of intentions. Evidence of this fact can be found in a reрort by the United Press International, as reported in The Detroit Free Press on Monday, August 23, 1971, of the bloody escape attempt in which six persons were killed at San Quentin Prison when a pistol was aрparently smuggled in to Black revolutionary George Jackson by a visitor. We quote the following paragraph from the report:
“Warden Louis Nelson said Jackson was being searched at his cell about 3 p.m. after receiving a visitor when he suddenly pulled the pistol and said: ‘This is it.’ ”
The question we ask ourselves is: “Can we allow a jury to find a specific intent to rob from use of a phrase such as was used here, as well as in a prison break that did not involve a robbery“?
Unlike in Hudson there is no evidence of specific intent for the jury to weigh or testimony which is to be tested for credibility.
We do not ovеrlook the after-the-fact res gestae statement of the complainant made to a witness after he exited the crashed vehicle. The statement, “That man in there is trying to rob me” is cоnclusionary and is not a statement of fact. This testimony cannot be used to prove the truth of the matter asserted. At most it can show that an
Our colleague on this panel, Justice O‘HARA, in his dissent to the оriginal opinion, sought to take this res gestae statement and add to it that it was made in earshot of the defendant and left undenied by him, and thus it should be concluded that this gave rise to an ample evidentiary basis for an inference of an intent to rob.
There is one problem with Justice O‘HARA‘s proposition and that is that there is no evidence that the defendant was within earshot or that his condition аfter the accident was such that he could have responded had he wanted to. It has not been shown that he knew what was said nor that he was under an obligation to respond.
We affirm that intent may be inferred from facts in evidence. Roberts v People, 19 Mich 401 (1870). However, for the inference to be sustained the underlying facts must be present. There was no evidence of facts that would allow an inference.
This wаs a case in which the defendant was overcharged. The people in situations such as this risk the possibility that a person improperly charged will escape culpability for an offense he did in fact commit, as in this case.
Reversal of the conviction is affirmed.
LEVIN, J., concurred.
PEOPLE v BARNES
O‘HARA, J. (for affirmance).
O‘HARA, J. (for affirmance). I adhere to the position I took in my dissent when this case was first passed upon by this Court.
“If any evidence of intent to rob is to be found in the record of this case, it must come from the expression, ‘Old man, this is it‘, made by аn armed man.
“Keeping in mind we find sufficient evidence of an armed assault, we find that the expression, ‘Old man, this is it‘, with no more is not sufficient evidence from which a jury can find a specific intent to rob.”
I hold it is.
I feel it is also necessary to comment on this portion of the majority opinion.
“The expression ‘this is it‘, as stated in our initial opinion, could have signaled a number of intentions. Evidence of this fact can be found in a report by the United Press International, as reported in The Detroit Free Press on Monday, August 23, 1971, of the bloody escape attempt in which six persons were killed at San Quentin Prison when a pistol was apparently smuggled in to Black revolutionary George Jackson by a visitor. We quote the following paragraph from the report:
” ‘Warden Louis Nelson said Jackson was being searched at his cell about 3 p.m. after receiving a visitor when he suddenly pulled the pistol and said, “This is it.” ’
“The question we ask ourselves is: ‘Can we allow a jury to find a specific intent to rob from use оf a phrase such as was used here, as well as in a prison break that did not involve a robbery‘?”
The analogy, if there is any, escapes me. I respectfully point out that the phrase was nоt born at the time of the escape attempt.
It was attributed to Marines in World War II, as they boarded their landing craft to storm an enemy-held beach (but I must confess I did not hear
“When I use a word it means just what I choose it to mean—neither more nor less.”1
It is my view that it was for the jury, as а cross section of the community, to say what the ungrateful defendant in this case meant when he directed the words to the good Samaritan who had given him a ride, while holding a knife to his throat.
In any evеnt irrespective of whether the anguished cry of the victim “that man in there is trying to rob me” was heard by the defendant and undenied by him, I still vote to affirm.
* Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to