Thе defendant, Jerome Palmer, was convicted by the trial judge, sitting without a jury, of aiding and abetting the attemрted breaking and entering of an occupied dwelling house with intent to commit larceny. * 1 We reversе and remand for resentencing on the lesser included offense of attempted breaking and entеring 2 because the people failed to establish Palmer’s intent to commit larceny.
Palmer was seen by police officers as hé was standing at the foot of the back door stairway of a Detroit residence. Two companions were at the door — one armed with an automobile lug wrench. *551 All three ran upon seeing the officers and only Palmer was apprehended. 3
We could sаfely 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 the invaded рremises.
Nevertheless, the Legislature has established two classes of breaking and entering, one а felony and one a misdemeanor. 4 The more heinous crime, of which Palmer was convicted, requires proof that the defendant broke and entered "with intent to commit any felony or larceny therein”. 5
In this case, the information charged that Palmer attempted to break and enter with intent to сommit the crime of larceny.
6
Because such mischief is a normal incident to a breaking and entеring, and because of the difficulty of proving the actor’s state of mind, minimal circumstantial evidence has been found sufficient to sustain the conclusion that the defendant entertained the re
*552
quisite intent.
7
There must, however, be some circumstance reasonably leading to the conclusion that a larcеny was intended.
8
A "presumption of an intent to steal does not arise solely from the proof of brеaking and entering”.
State v Harris,
In this case the breaking was attempted at noontime. The building was an occupied dwelling house, not a store containing money or readily salable merchandise. 9 Palmer was acquainted with one of the residents of the house, and had in fact been in the house the preceding dаy. There is no suggestion in the record of anything of particular value in the house which Palmer and his cоmpanions might have been seeking.
We conclude that the trier of fact could not propеrly infer from the evidence an intent to commit larceny rather than some other mischief. Since he could have and quite clearly did find the other elements of the crime charged, 10 we do not *553 order a new triаl but remand for resentencing on the lesser included oifense of attempted breaking and entering. 11
Palmer also contends that charging him as a principal and convicting him as an aider and abettоr deprived him of notice of the charge against which he was required to defend himself. The distinction between principal and accessory has, however, been abolished by statute; the statute еxpressly provides that one who aids or abets —an accessory — the commission of an offense may be "prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed suсh offense”, 12 (Emphasis supplied.)
Our disposition of this case makes it unnecessary to consider Palmer’s other contеntions.
Reversed and remanded for resentencing on the lesser included offense of attempted breaking and entering. 13
Notes
MCLA 750.110, 750.92; MSA 28.305, 28.287.
MCLA 750.115; MSA 28.310.
In addition to the testimony of the police officers, one of the residents of the house was attracted by a noise and saw a pair of hands wielding "a little sharp object” in an attempt to force open the door.
MCLA 750.110; MSA 28.305 makes breaking and entering with intent to commit any felony or larceny a felony punishable by not more than 10 years imprisonment, or not more than 15 years if the building is an occupied dwelling.
MCLA 750.115; MSA 28.310 makes it a misdemeanor to break and enter without first obtaining permission tо enter.
MCLA 750.110; MSA 28.305.
The Michigan Supreme Court has held that one charged generally with the
completed
offense of breaking and entering with intent to commit a "felony” is not adequately informed of the charge against him, and that thе people have the duty to allege and prove the particular felony claimed tо have been intended.
People v Westerberg,
See
People v Curley,
See
People v Johnson,
In People v Westerberg, supra, p 649, the Michigan Supreme Court declared that "in this рrosecution it was essential to charge and prove a particular felony or a particular felonious intent”. (Emphasis supplied.)
Cf. People v Lambo,
The trial judge said:
"I am satisfied beyond a reasonable doubt that he aided and abetted in the attempt to break and- enter the dwelling over on Sylvester Street here in the City of Detroit, and undеr Michigan statute aiding and abetting is punishable as though you actually committed the offense.”
It is noteworthy, that he did not here specifically find an intent to commit larceny.
Cf. People v Lee, supra; People v McFarland,
MCLA 767.39; MSA 28.979. See
People v Dockery,
See
People v Bauer,