People v. Lee, 165 N.W.2d 518

People v. Lee

165 N.W.2d 518

Mich. Ct. App.

1968

Check Treatment

Per Curiam:.

Defendant was convicted by a jury of the crime of breaking and entering with intent to commit larceny. 1 The issue raised for review is *329 whether the people proved the requisite criminal intent for the crime of larceny.

The record discloses sufficient evidence from which the jury could find the defendant guilty of breaking and entering beyond a reasonable doubt. However, the record contains no direct and circumstantial evidence, in addition to that relating to the breaking and entering, from which defendant’s intent to commit the crime of larceny could be found beyond a reasonable doubt. See People v. Boyce (1946), 314 Mich 608; People v. Westerberg (1936), 274 Mich 647; and People v. Curley (1894), 99 Mich 238.

A proper disposition of this case is to set aside the sentence and to remand the defendant to the trial court with instructions to sentence the defendant for the crime of breaking and entering, 2 a lesser includable offense. People v. Sharp (1968), 9 Mich App 34.

Remanded for proceedings consistent with this opinion.

Holbrook, P. J., and T. G-. Kavanagh and McIntyre, JJ., concurred.

Notes

CL 1948, § 750.110, as amended by PA 1964, No 133 (Stat Ann 1968 Cum Supp § 28.305).

CL 1948, § 750.115 (Stat Ann 1962 Rev § 28.310).