Docket No. 103 | Mich. | Feb 27, 1920
The information in this case charged that the defendant—
“On the 26th day of March, in A. D. 1919, at the said city of Detroit, in the county aforesaid, did attempt to commit an offense prohibited by law — that is to say, at about the hour of four o’clock in the nighttime of the said day, with force and arms, the store, not adjoining to or occupied with a dwelling house of Charles Levy, there situated, feloniously did attempt to break and enter, with intent the goods and chattels of the said Charles Levy, then and there in the said store, then and there being found, then and there feloniously to steal, take and carry away, and*155 then and there in the said attempt did do a certain overt act towards the commission of the said offense, did cut a hole in the panel of said store door to enable Mm, the said Chester Mandell, to unlock said door, with intent then and there the said store to break and enter and steal, take and carry away therefrom the goods and chattels therein contained.” ■
Mr. Levy locked his store the evening before the alleged offense. The rear door of the store was secured from within .by two locks, in one of which there was a key, Police officers of the city testified that about 4 o’clock in the morning their attention was at-' traeted by. sounds in the rear of the Levy store; that a light was flashed and a man was seen crouching near the rear door who started to run. The officers gave pursuit and captured the defendant in the yard at the rear of the store. A knife was found on the ground near the rear door. A key was also found and there was testimony that it was the key which had been in the lock of that door. The officers further testified that there was a hole cut in the door near the lock large enough to admit the hand of a man. At the close of the proofs of the people counsel for defendant moved that the defendant be discharged for the reason that defendant was charged with an attempt and the completed act of burglary was shown to have been committed. TMs motion was denied. The defendant admitted being in the rear of the store at the time in question but denied that he had attempted to break and enter the store as charged. Upon trial the defendant was convicted. Following the verdict defendant’s counsel moved to quash the verdict and to discharge defendant upon the ground that the facts showed that the defendant was not guilty of the crime of attempting to break and enter, but was guilty of the completed act of burglary as the defendant, according to the people’s testimony, must have reached his hand through the hole in the door, and taken out
“If the law now stood as it did when the opinions were handed down in the cases cited by counsel for respondent this court would have no alternative but to discharge the respondent, but by Act No. 89 of the Public Acts of 1915 (3 Comp. Laws 1915, § 14565) it was provided:
"‘No judgment or verdict-shall be set aside or reversed, or a new trial be granted by any court of this State in any case, civil or criminal, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.’
“We think this statute was passed to prevent such a miscarriage of justice as would occur if this respondent upon this record should be discharged.”
The judgment is affirmed.