Dеfendants, Melvin Bonner and Reilly Browder, along with Lucious Miller, were convicted by a jury of breaking and entering with intent to commit larceny, MCLA 750.110; MSA 28.305. Defendants, Bonner and Browder, appeal as of right alleging separate issues. The cases have been consolidated on appeal.
At trial the prosecution’s evidence showed the owner of a real estate office in Flint, Michigan, fearful of repeated breaking and enterings, installed an alarm system in his building which included interior microphones from which he could monitor activity inside the building from his house a short distance away.
At approximately 2 a.m. one morning he heard thе sound of breaking glass via the monitoring system. He called police and then went to the scene. A police car 1-1/2 blocks away arrived first. One police officer positioned himself near the reаr of the building and saw defendant Bonner supporting Lucious Miller by his feet while the latter tried to pull himself through a broken window. Defendant Browder was positioned as a lookout *156 surveying the front of the building and from time to time rеturned to the point of entry, presumably with status reports. The officer and his partner, who had sealed off the driveway at the front of the building, announced their presence, and after an abortive attemрt to flee, defendants were arrested. Defendants Bonner and Miller were observed to have small shards of glass in their hair and cuts on their hands. A brick was found at the scene on which shards of glass were found embedded.
Defendant Bonner maintains that evidence is insufficient to allow a jury finding of the specific intent to commit larceny necessary to support the charge for which he was convicted. We disagree. As stаted in
People v Palmer,
"We could safely generalize that breaking and entering is not undertaken as an end in itself, nor as an avenue to innocent pastimes. It is usually the first step toward the commission of some further criminal act in thе invaded premises.”
Thus, it can be readily inferred that the act of breaking and entering, here established beyond peradventure, carries with it some further criminal intent. Whether the specific intent is larcenous is a question for the jury, provided that at least some circumstance reasonably leads to that conclusion. People v Palmer, supra, 552.
This case is not unlike
People v Lambo,
Our review of the record reveals no prejudicial error оccurred in trial court instructions to the jury and the failure of defense counsel to make an opening statement, while irregular, does not merit reversal in this case. See GCR 1963, 507.1; see also 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 393.
At sentencing it wаs shown that at the time of the commission of the offense, defendant Browder was on bond awaiting trial on 2 counts of breaking and entering and 1 count of attempted breaking and entering, and that he had since beеn convicted and sentenced to 4 to 15 years in prison. The trial court informed defendant that MCLA 768.7b; MSA 28.1030(2), allowed a consecutive sentence to be imposed for this present but subsequent felony conviction, and allowed defendant and his counsel a brief recess to examine that statute. Thereafter, defendant Browder was sentenced to five to ten years in prison, the term to commence when he had сompleted his prior prison sentence on the other charges.
Defendant Browder now attacks the constitutional validity of the statute and the procedures by which it was implemented in his case.
MCLA 768.7b, supra, provides:
"When а person, who has been charged with a felony and pending the disposition of the charge, commits a subsequent offense which is a felony, upon conviction or *158 acceptance of a guilty plea of the subsequent offense, the sentences imposed for conviction of the prior charged offense and any subsequent offense, may run consecutively.” (Emphasis supplied.)
Defendant concedes that the Legislature may differentiatе, as it has by the above statute, two classes of persons; those who have committed subsequent felonies while on bond and those who have not, and provide for different punishments between those classes. We think that is a wise concession. The purpose of the statute is to deter persons accused of one crime from committing others by removing the security of concurrent sentences should conviction result on any or all of the crimes so committed. Such a purpose is laudable, rational and the statute reasonably tends to achieve that purpose. See
Naudzius v Lahr,
Rather, defendant’s concеrn is that all persons subject to consecutive sentencing are not treated alike. The statute is permissive; a sentence imposed on the bonded offender "may run consecutively”. The essence of defendant’s theory is that if judicial discretion is the sole determinant, inequity will result. We disagree. The exercise of sound judicial discretion is contemplated in our law in the imposition of
any
sentence. We decline to interfere by interposing artificial standards not correlated to the concept of individualized justice implicit in the exercise of discretion by the sentencing judge.
Cf. People v Tanner,
Defendant next challenges thе consecutive sentencing statute on the ground that it provides no hearing and no opportunity to challenge the substantive facts necessary to make the statute operative. Referencе is made to MCLA 769.13; MSA
*159
28.1085, which provides that those accused of being habitual criminals may have trial by jury on the issues of the identity of the accused as related to the alleged former convictions. See
In re Brazel,
Since it is apparent that a person subject to consecutive sentencing is also within the class of persons subject to prosecution as an habitual criminal, a somewhat detailed analysis of the history of the power to sentence consecutively vis-a-vis the prosecution of criminal recidivists is necessary to understand why due process does not require trial of the substantive facts before impositiоn of a consecutive sentence and why different treatment is in order.
Prosecution as an habitual criminal first requires one, two or three prior convictions. MCLA 769.10
et seq.;
MSA 28.1082,
et seq.
The prior convictions may be for crimes within this state or for crimes under the laws of any other "state, government or country * * * which if committed within this state, would be a felony”. The statutes do not specify when the prior felony may have occurred, but only that at sоme point conviction resulted. Prosecution may be instituted in the first instance as a repeated offense, or by supplemental information following conviction of the second or subsequent offense. MCLA 769.13,
supra.
In either case, the issues litigated concern the identity of the accused as related to the fact of former conviction.
In re Brazel, supra.
The effect of successful prosecution under those statutes is to аutomatically lengthen the maximum sentence for which the multiple offender may be incarcerated on the principal charge since by law the
maximum
sentence for a given crime is always imposed; judicial discretion operates to vary only the minimum
*160
punishment. See MCLA 769.8; MSA 28.1080,
People v Walton,
Consecutive sentencing while not unknown at common law was not permitted in Michigan.
In re Bloom,
It is our opinion that due process does not require yet another adversary hearing to again fix the time of the сrime for which the defendant was convicted. Nor can we conceive that a jury should be called upon to determine if that date coincides with the period during which the defendant was on bond for the оther charge for which he was, of necessity, convicted.
*161 Rather, such information can be readily ascertained and contained in a presentence report as part of the "antecеdents, character and circumstances” of the defendant. MCLA 771.14; MSA 28.1144. As in the case at bar, the defendant should be ádvised that he is subject to consecutive sentencing and be given the opportunity, during allocution, tо explain, correct, or deny such information.
As we have stated in
People v Zachery Davis,
"It is vitally important to the defendant and to the ends of justice that the sentence be based upon accurate information.”
If, for some reason, a dеfendant contends the information in the presentence report is erroneous, the asserted facts upon which consecutive sentencing would be appropriate should be supported by рroof. See
People v Zachery Davis, supra.
Since, in this case, defendant, while represented by counsel, admitted the operative facts, we hold his consecutive sentence lu be in order. See
Oyler v Boles,
Affirmed.
Notes
We find it exceedingly difficult to imagine how a defendant under a prison sentence, brought to court from prison by court officers, could challenge the only other fact to be established before the statute becomes operative, i.e., his incarceration for another offense.