250 N.W.2d 522 | Mich. Ct. App. | 1976
PEOPLE
v.
ROBERT BROWN
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.
Gene R. Myers, for defendant on appeal.
*750 Before: R.B. BURNS, P.J., and QUINN and BEASLEY, JJ.
QUINN, J.
Defendant was charged with breaking and entering a store building with intent to commit larceny, MCLA 750.110; MSA 28.305, and was tried before a jury for that offense. Convicted as charged and sentenced, he appeals.
Defendant requested instructions on the claimed included offenses of larceny in a building and attempted larceny in a building. The trial judge declined to give the latter instruction, although he did instruct on larceny in a building. Defendant asserts reversible error because the trial court refused to instruct on attempted larceny in a building.
We find no error. Neither larceny in a building nor attempted larceny in a building is an offense included in a charge of breaking and entering a store building with intent to commit larceny, People v Keatts, 54 Mich. App. 618; 221 NW2d 455 (1974).[1] They are offenses separate and distinct from breaking and entering, People v Huffman, 315 Mich. 134; 23 NW2d 236 (1946).
Breaking and entering a store building with intent to commit larceny can be established without proof of a larceny or attempted larceny, People v Lambo, 8 Mich. App. 320; 154 NW2d 583 (1967). So neither of the latter offenses is a "necessarily" included offense, see People v Ora Jones, 395 Mich. 379; 236 NW2d 461 (1975). Nor is either a "cognate" lesser included offense, as that terminology is used in Jones, supra. Larceny and attempted larceny are not in the same category of crime as *751 breaking and entering. The gist of the latter crime is the breaking and entering while the gist of larceny or attempted larceny is a taking with intent to deprive.
The jury verdict was guilty "on the breaking and entry". Because the verdict as stated failed to repeat the rest of the statutory language defining the offense, defendant claims reversible error. This does not constitute reversible error, People v Don Francisco Lopez, 65 Mich. App. 653; 237 NW2d 599 (1975). Additionally, if defendant intended to question the form of the verdict, that should have been done at trial and not for the first time on appeal.
The record establishes that the trial judge exercised discretion in his ruling which permitted the cross-examination of defendant on his prior convictions. The claim of reversible error in this regard is not established, People v Kelly, 66 Mich. App. 634; 239 NW2d 691 (1976).
Finally, defendant's claim that he was denied a substantial defense and a fair trial because his attorney failed to subpoena a witness fails for record support. The witness was not called for strategic reasons.
Affirmed.
NOTES
[1] The Supreme Court order of reversal found at 396 Mich. 803 (1976) in no way rebuts the majority opinion of the Court of Appeals in this case and we read that order as merely reversing the result of the case in the Court of Appeals.
