*1 v. Gould PEOPLE GOULD Opinion of the Court Accessories—Principal—Statute. Law — 1. Criminal the fact distinction between accessories before and the actually a crime has been abolished principals who commit aids, counsels, who or abets in the com- statute so that one tried, may prosecuted, mission of an offense convicted (CL 1948, direetly such offense he had committed 767- § .39). 2. Same —Information—Trial—Procedure. guilt determining or innocence of accused A eourt confine to a consideration of facts of a crime must itself for that the information case. contained Larceny 3. Same — Person. for necessary in order to sustain conviction It actually question be taken that (CL 750.357). of another § Larceny Robbery from the Person —Included Armed — 4. Same — Jury. Charqe Offense — jury eharge that court its Statement trial eventually convieted, was which defendant was robbery charged of armed offense an offense included charging armed held, error, information where the reversible register money a cash was taken from stated any taken from property was and there was no evidence 750.357, 750.529). (CL 1948, anyone’s person §§ [1] [4] [2] [3] [5] 21 41 Am Jur 32 5 Am32 Am Jur Am Am Jur Jur, Jur, Larceny 2d, References 2d, 2d, Larceny Appeal Criminal Law Indictments and §§ and Error 22. Points 154. § Informations et in Headnotes seq. §§ 260-276. 15
Dissenting Opinion Thoeburn, J. Appeal Saving
5. Criminal Law —
and Error —
for Re-
Questions
view.
*2
Failure
questions
convicted
a crime to
at
raise
Ms
of
preclude
appellate
considering
trial should
an
court
those
questions later.
Appeal from Recorder’s Court of Detroit, Krause
(Paul E.), J. Submitted Division 1
6, 1967,
June
at
(Docket
1,867.)
Detroit.
No.
Decided
23,
December
appeal granted August
1968. Leave to
18, 1969.
See
fendant Reversed. Kelley, Attorney Frank J. General, Robert A. Derengoski, General, Solicitor William L. Cahalan, Prosecuting Attorney, Ap- Torina, Samuel J. Chief pellate Lawyer, P. Smith, and Thomas Assistant Prosecuting Attorney, people. for the Hyman (Stanley Weingarden, J. Leonard of coun- sel), appeal. for defendant on J. H. Gillis, P. J. Defendant 2 and codefendants charged robbery1 2on counts with armed carrying weapons.2 concealed All 3 were convicted by jury a on the second count but on the first count robbery, one codefendant was convicted of armed simple the other was convicted of assault and de- person.3 fendant was convicted CL CL OLS § § 750.357 750.227 750.529 (Stat (Stat (Stat Ann 1954 Ann Ann 1962 Rev 1968 Cum Rev § Supp 28.424). 28.589). § 28.797). v. G-ould the Court shortly complainant mid- after testified night May the restaurant men entered on 11,1965, working a One as waitress. where she announcing gun his hand. After men had a holdup, sole and her forced the waitress the 2 men on the floor another lie face customer to down proceeded about to take $77 room and cigar register from the wallet and $7 box cash of the customer. rant. Another rant ran from restau- The men then entering patron, the restau- who was fleeing, just testified that 2 men were as the a third man was where automobile ran an the men identify any waiting. however, not, He could clothing except of one and as to the the defendants the color both. identify
The waitress was able to one of the co- gun defendants the man with the but was unable accomplice. identify customer who had *3 testimony been in the restaurant corroborated the of the waitress to the details of the and as gun. man the also identified the given police were called and the of details robbery, including description a the of the men and they escaped. in which This information the car police immediately communicated radio to was police Approximately cruiser. 10 minutes Detroit police robbery, in the officers the cruiser after the and, the 3 in their car based codefendants observed A information, arrested them. on the broadcast fully loaded .45 caliber the car uncovered of search pairs gloves pistol, of brown cloth under automatic change in bills and seat, $17.50 the front the $40 glove Forty box. dollars bills found pocket of one of codefendants. appeal that the defendant contends verdicts On inconsistent, that each codefendant were as to joined not be under first and second counts could 15 Opinion op the Couet that there information, in one this case facts defendant evidence to convict this was insufficient that the crime of the second count and the the against any as was established urges that he Defendant since codefendants. alleged automobile, driver of to have been the only basis that he on the he be convicted could the armed commission of aided robbery by abetted and convicted who were codefendants different offenses. the fact accessories before
The distinction between abrogated by principals statute so been and has in the commis- aids or abets counsels, that one'who may prosecuted, tried sion of an offense directly of- such had committed convicted he could have the codefendants If either of fense.4 per- larceny from a offense of convicted of the been defendant’s of this the facts then, under son, upheld. conviction should be testimony money there was taken While the wallet of the customer5 in the who was holdup, at the time of the the criminal restaurant alleges which on defendant was tried information money only taking register from the cash cigar of the waitress. Be- box must confine ourselves to a consideration cause we alleged only information, of the facts question for our determination whether cigar money register from the cash box larceny constituted (Stat 28.589) Ann 1954 Rev 1948, 750.357 CL provides as follows: *4 “Any person of lar- who shall commit the offense person stealing
ceny by shall another from 4 5 28.979). (Stat Ann 1954 Eev 767.39 apparently CL § yet charged has not as been with the Defendant robbery of the customer. armed v. Gould the Court imprisonment felony, punishable by guilty aof (Em- years.” prison not more than state the phasis supplied.) proper interpreta- disagreement as to There is portion given of the statute. italicized tion to be passage appears following Lar- CJS, 52A ceny, pp 434: larceny from the “In to constitute order per- thing taken from the actual must be stolen possession from his or at least owner, son of the place presence, a where he has or from immediate been drop compelled by threats to violence or place it.
[*] # # it “Thus has been held that it is not from person merely personal belongings to steal the person sitting, adjoining a a chair that on which sleeping, he is or from a room in which he is pillow. even from However, beneath some cases have taken the view that in necessary property it is not that the stolen be taken directly sufficient if the and that another, it is property pri- fraudulently, be taken vately, knowledge and without the or consent of the owner and with the intent steal thereof, it, while possession property and immediate presence accordingly owner; a conviction upheld been where the was taken has pillow sleeping owner.” beneath appears there are 2 it schools of
Thus, subject; requires taking thought on one allows a actual and the other immediate owner. question presented here was considered The same Kobylasz (1951), Iowa the court State 167) a woman’s where purse NW2d (47 *5 83 15 88 the Coukt person, from be- hut the seat her taken, not from opinion comes From her in an automobile. side following analysis: the complaint (sub- “Defendant’s of the instruction
mitting larceny
based
evidence the
person)
and the verdict
thereon
also to
seems
be that there was no
property
actually
taken from Miss
person.
In
Calhoun,
State v.
definition
Eno,
v.
Minn
an Minnesota
State
old
every
says
which
case of
‘extends
stealing
where the
stolen is on the
custody
immediate
person or
v. Gould
Opinion op the Court
person.’
a reasonable construction.
That seems
See
(91
302).
Reyner,
P
v.
This settings robbery to the identical in factual tions of money from the took i.e., where defendant here; one pres- register the immediate drawer in or cash cash theory prosecuting was witness. ence of the Michigan robbery by the Su- accepted cases also Ápp §Ó Míen Í5 Opinion op the Court preme Court v. Cabassa 249 Mich 547: thought expressed “The of the statute, language, pos must be so in the session or under the control the individual robbed putting violence the means used fear away the robber to take If it. it be from the yet owner, control, under his in another room the per house, as in this it is nevertheless in his possession; deprived and, sonal ishe thereof, it may person. well be said it is taken from his Goods personal property (are) are called law, presumed accompany If taken from owner, this relation of owner goods separated surrendered, and the are person.” (34 State v. Calhoun, 72 Iowa NW Rep 252). Cyc p 2 Am See, also, St pp (Emphasis supplied.) 1142, 1143. 23 ROL analogy cases, however, those dealing should not be separates robbery made. What *7 person the is violence or the threat violence. In Supreme Cabassa, the Court cited Calhoun, State v. phrase extending in which the reason the “from person” robbery in the cases is made clear. Such apply reason not to a case does where there is no or violence threat of violence. (1887), (34 “And in v. Calhoun State 72 Iowa Rep 252), 194, Am St it NW is said: ‘The statute robbery, defining correctly quoted which is given jury, contemplates second instruction to the taking property person”
the
“from the
of another.
interpret
language
Counsel
this
mean that the
to
property, in order to constitute the
must be
crime,
upon
person
way
or in
to
of the
some
attached
presence.
or in his immediate
robbed,
individual
preposition
convey
“from”
the idea of
The
contact
does
property.
propinquity
or
of the
People
v. Gould
the Coukt
It-.does,
imply
property
is in the
hot
'person;
thought
of the statute, as ex
pressed
language,
is that the
must be
so
under the control of the in
putting
dividual robbed that violence or
was
fear
means used
robber to talce it.
If it be
away
yet
owner,
under his control, in
another
room the
house, as
this
it is
personal possession;
nevertheless in'his
is
and, if he
deprived
may
thereof, it
well be
it
said
is taken
person.
personal property
from his
Goods are called
presumed
accompany
person.
in the law, and
taken
If
from the owner, this relation of
owner
goods
separat
and the
surrendered,
are
ed from the
In the case before us, defend
prosecuting
ant,
violence bound the
witness,
put
thereby
By
her in- fear.
this violence, he ex
place
torted from her information of the
where she
kept
money
her
and watch in another room of the
'Leaving
house.
her bound, he went into that room
property.
clearly
opin
and took the
ion that it
We are
taken
was
from her
in the sense
of the words as
used
the statute.’ And
lan
this
quoted
guage
sa
approval
v. Cabas
pp
“Under statute it is under some country, statutes in this there must be an taking actual presence —a *8 robbery.” it is not in is sufficient pp (Emphasis supplied.) supra, ¿42, Am Jur, [Doc App Mioi-i the Court Michigan taking
The statute calls for a the from People person interpretation and its v. Gadson (1968), 348 Mich and Stevens unambiguous, i.e., is it an essen- is person larceny tial element of from the that object person stolen from the of another. Lar- person ceny is an included offense in in- from the and convictions the lesser dictments e.g., proper violence or cases, when offense are cannot It not threats of violence be shown. is robbery when there included in armed lesser offense person, Kobglass taking no from the is precedents notwithstanding. The therein mentioned clearly not criminal but it was case was theft larceny person. from the charged jury judge as follows: larceny the other “Now, included offense from is person. Larceny taking is personal property the unlawful carrying away goods deprive permanently of another with intent to owner of possession property, lar- ceny person from the instance, of an individual. if some- For my my body money would take out of hand or out of pocket, larceny that would be On they was hand, the other took the that my away personal from me, but larceny maybe even ten not be feet, would plain ordinary larceny.” person. That would be the law correct. The real The statement of charged jury when the court error occurred bring they a conviction could in this the facts this case. Under not an included offense. weapon carrying a concealed conviction forth in for the reasons set set aside must also be *9 People Gould the Court (1968), App People 10 Mich 211. The v. Schrader in this a codefendant ease. involves case latter Reversed. P. with H. J. concurred J. J., Gillis,
McGregor, (dissenting). J. issues raised Thorburn, n presented to the trial .Court Court. opinion by Judge in an This Court Fitzgerald, by Judge Judge concurred Chief Lesinski reviewing the trial of this case reached McGregor, people proven the conclusion that the had not carry lacked a license defendant Schrader cealed a' con upon weapon. had This little effect the life liberty Schrader, of defendant as concealed naught weapon now held for carried a sen prison, years tence currently three to five to run con robbery armed sentence of 15 to years prison. v. Schrader 211, 217. therefore will Defendant Schrader continue to time to reside Jackson Prison some come. jury determined Gould,
Defendant to be co-conspirator, jury known to for reasons best armed but of not convicted weapon carrying a concealed from a without a testimony or license. The reference during trial to the absence weapon carry a concealed follows: license clerk on sworn the court Blaskowski, “Eleanor people, and testified was examined behalf follows: Examination.
“Direct “By Mr. Laster: your
[1.] name? “Q. What Blaskowski. Eleanor
“A. App 83 15 Mich by Thorbtjrn,
Dissenting Opinion J. yonr [2.] occupation? “Q. And what is county “A. Clerk 3 at the clerk’s office. Wayne county [3.] “Q. clerk’s office? right, “A. That is sir.
[4.] “Q. And that is for—under the direction of Ed- gar Branigan, county M. clerk? right.
“A. That is you [5.] “Q. Did have occasion to search the records Wayne county clerk’s officeto deter- *10 mine whether or not William Schrader, Copciac Walter G-ouldand Louis had a li- carry weapon? cense to a concealed present “A. Not at the time. They [6.] “Q. do not have a license? No,
“A. sir.” Referring questions by to ap- these number, it is parent prosecutor proceeded that the swimmingly question until the clerk in question answer to no. a5, yes that thoroughly unresponsive gave should have been answered or no, pres- answer, “Not at the prosecutor, recognizing ent time”. The answer could mean that the clerk had examined gun the records and discovered no evidence of the any begin- license of the defendants Iron! ning neatly by present of the world to the moment, recovered question
posing “They no. 6: do not have meaning obviously a license?” at the time of the (the having crime time of the crime been established by previous proofs opening referred to statements case). being an issue complete response
The clerk in answered, “No, meaning she found no sir”, evidence of a license any point granted to at the defendants time. clerk, There was no cross-examination no quash, by opening reference motions to statements* requests charge, arguments, or dismiss, to final objection exception the'charge. In no short, v. Gould Dissenting Opinion by Thorbtjrn, J. any reference way defendants to tbe lack of proof, people. of no license reading tbe A complete transcript tbe tbat painfully apparent makes it prosecutor, defendants’ counsel, the tbe trial judge, important, jury, and most tbe all understood questions put and construed tbe and tbe answers given to mean tbat the clerk had indeed searched tbe carry records and no record found of a license to weapon a concealed issued to the defendant Gould. reclining Tbe sole customer, whose wallet was was not stolen, named tbe information as was waitress'; Again, proofs tbe as with lack of license, given jury admitted to tbe on'larceny but this defect was not throughout mentioned tbe course of the trial and appeal. is raised for tbe first time on.
(cid:127) question Tbe failure to raise in the lower court precludes considering appeal. this Court it on Young (1960), v. Morrow 180, 187; Laboratories, Therrian v. General Inc.
Mich 487, 490. *11 in Justice v. Collins 380 Brennan Michigan: Mich. 135 recites tbe rule in (if “Any any) lodged error in tbe formal procedural only. a defendant is It waived is against by 'entry plea tbe of a Furthermore, thereto. this regard will not tbe basis for a new trial Court procedural any reversal aof conviction error or miscarriage justice. which does of not-result in § 529; 769.26.”* CL GCR admission the error of an examination ease, or a new trial be [*] pleading “See. 26. No on the complained or or ground" rejection procedure, granted judgment of' misdirection of has resulted entire unless evidence, or verdict shall he set aside cause, any in court of this state it shall or in a of the for error as to opinion miscarriage affirmatively jury, of the or in any court, appear any or reversed justice.” improper criminal matter after (if any) should not consider
This Court errors in the appeal first on when so waived eagerly raised trial court.
I affirm. vote to v. EMPLOYMENT SECURITY COMMISSION
FOSTER Unemployment Compensation Employ—Test op Employment 1. — , —Common-Law Rules. concerning relation- rules the master-servant common-law controlling provide one ship tests as to whether do not security employment employ in under the another (MCLA, 421.42). act § Employment Employment—Test 2. —Statute. Same — security employment 42 of the 6 of The statement subsection § employment of another not act that an individual as to employer’s control or direction he is “under unless for performance of both under his contract his services determining governing for fact” test hire and states employment for the of another an individual is whether right-to- act, purposes superseding of that the common-law 421.42). exercised, (MCLA, eontrol, test whether § Employment Employment—Test op 3. —Statute. Same' — meaning 42 of the in subsection 6 of of the statement § security employment an is not individual aet employer’s employment of unless he is “under another performance his services both or direction control as to the fact” be determined his contract hire and in is to under objectives enact- light sought achieved legislation (MCLA, §421.42). ment References for Points Headnotes Re- Jur, Security, Unemployment Am Social Insurance [1-9] seg. 15 et Funds tirement Jur, Security, Unemployment [10,11] Am Insurance Social Funds Retirement