187 N.W.2d 524 | Mich. Ct. App. | 1971
PEOPLE
v.
REYNOLDS
PEOPLE
v.
BOGNAR
Michigan Court of Appeals.
*111 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Leo E. Maki, Prosecuting Attorney, for the people.
Allan C. Schmid, for defendants.
Before: QUINN, P.J., and McGREGOR and O'HARA,[*] JJ.
Leave to appeal denied May 12, 1971. 384 Mich. 840.
PER CURIAM.
Defendants' jury trial resulted in their conviction of larceny in a building, MCLA § 750.360 (Stat Ann 1954 Rev § 28.592). They were sentenced and they appeal.
Although defendants specify four issues on appeal, all issues can be resolved by our response to one question, namely: As a matter of law, is the building from which the property was taken outside the statute involved?
The statute specifies "dwelling house" as one of the buildings covered by the statute. Defendants contend that due to disuse, disrepair, and nonhabitation the building involved was not a dwelling house, and hence the offense of which defendants were convicted was not proved. The building had been a dwelling house, although at the time of the offense and for some time prior thereto, it was not occupied. However, the items taken from the building were *112 items normally found in a dwelling house; there was testimony that the building was full of furniture and furnishings and that the building was habitable.
The trial judge left for jury determination the question of whether the building was a dwelling house, instructing the jury:
"Now a dwelling house, for the purpose of this statute, is a building of such design and character, and condition that its primary function is a place for human habitation, and such residential function must be apparent to an otherwise uninformed observer. The building need not be presently occupied to be a dwelling house, and a building may lose its status as a dwelling house by reason of nonoccupancy and disrepair. But the condition of this disrepair must be such as would communicate to an observer an apparent intent of the owner to abandon its function as a place in which people live.
"The undisclosed intention of the owner does not control. The building's actual and apparent residential capacity do control. This is an issue for the jury on the evidence in this case. Even if you do determine that the defendants, or one of them, committed larceny in this building, it will be your duty to return a verdict of not guilty, unless you also find beyond a reasonable doubt that the building qualifies as a dwelling house, as I defined these terms, and of course, the time in which it must have been a dwelling house would have been at the time of such larceny."
We affirm. On this record, the status of the building as a dwelling house was a jury question. The instruction on this question was proper, and there is evidence to support the jury finding that the building was a dwelling house.
Affirmed.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
