J. Defendant was charged with unarmed robbery* 1 and appeals as of right from a *36 jury conviction of larceny from the person. 2 The sole question is whether it was error for the judge to instruct the jury on the lesser included offense of larceny from the person.
Complainant, Alex Vaughn, was working late at a printing shop on Vernor Highway and Beaufait in Detroit and decidеd to buy some milk at a grocery store across the street. Upon his return, Mr. Vaughn was allegedly tripped by the defendant who was hiding behind some hedges surrounding the printing shop. The defendant allegedly kicked Mr. Vaughn in the face, stated "I want your mоney”, removed Mr. Vaughn’s wallet and wristwatch, and swiftly departed.
The police responded to Mr. Vaughn’s call for help and searched the immediate neighborhood in a scout car, accompanied by the complainаnt. Mr. Vaughn described the assailant as being a colored male about six feet tall wearing an orange or yellow shirt or jacket and a wide-rimmed black hat. The police approached a nearby school yard and observed a man fitting the description given by complainant. Defendant, Michael Tolliver, was then arrested by the рolice on the basis of Mr. Vaughn’s description. The defendant was accompanied by his girl friend, Alindra Huffman, at the time оf his arrest. He stated he was returning to his home following an errand to the grocery store for his grandmother. This explanation was corroborated by Miss Huffman and by defendant’s grandmother, Exie Tolliver, and two people he had met earlier that evening at the playground, Dwight Lewis and David Griffin.
At trial, the jury was instructed on the lesser *37 included offense of larceny from the person. Defense cоunsel objected to this particular instruction, but was overruled by the trial judge. The jury returned a verdict of guilty of larceny frоm the person. Defense counsel moved to set aside the verdict contending that the evidence presented failed to show larceny from the person and constituted an obvious compromise verdict. Defendant now appeals from a denial of his motion to set aside the verdict.
Defendant contends that the crime cоmmitted was unarmed robbery. Consequently, no question of fact exists to warrant the lesser charge to the jury of larcеny from the person. The people argue that a question of fact with regard to an element of unarmed rоbbery did exist. They maintain that the complainant was never "put in fear” by the perpetrator of the crime.
Larceny from the person is an included offense in indictments for robbery. Convictions of a lesser offense than robbery mаy result only where violence or threats of violence cannot be shown.
People v Gould,
"1. That the defendant by force and viоlence, assault or putting in fear;
"2. Feloniously took any property, which may be the subject of larceny, from the person of the complainant or in his presence, and
"3. That the defendant was not armed with a dangerous wеapon.” 4 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 2218, p 2442.
The disjunctive nature of the first element provides alternative methods by which а perpetrator may obtain the property. Contrary to the people’s contention, putting the cоmplainant in fear is not one of the requisite elements of unarmed robbery. *38 It is sufficient that defendant act with forcе and violence. In the instant case, the complainant offered uncontradicted testimony that he was kicked in the head, allegedly by the defendant. This was corroborated by one of the police officers who came to his aid. At no time was testimony offered which contradicted evidence of the use of force and violence.
Defendant contends that in order for the court to charge the jury in relation to lesser degrees of аn offense there must be introduced evidence in support of the lesser crime. We agree. Where no disputеd issues of fact exist which would justify a jury instruction as to a lesser crime, a defendant is not entitled to have the lesser charge included. Thus, where evidence is only of the greater offense, there cannot be an instruction given on аny lesser included offenses.
People v Milhem,
This Court has ruled that in order to warrant an instruction on any legally possible included offensе, the offense must be included both legally and factually.
People v Carabell,
No question of fact exists in this case. The Court in
People v Stram,
"When does a question of fact exist? If there is *39 conflicting evidence relating to the element of the greater offense that is not an element of the lessеr offense, there is a question of fact as to that element.”
No such conflicting evidence was introduced. It wаs the jury’s duty to either return a verdict of guilty or innocent of unarmed robbery, depending upon whether they believed that the complainant correctly identified the defendant as being his assailant. To permit a conviction of the lеsser included crime of larceny from the person to stand is to indorse a compromise verdict unsupported by the evidence.
Reversed and defendant ordered discharged.
Notes
MCLA 750.530; MSA 28.798: "Any person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steаl and take from the person of another, or in his presence, any money or other property which may be the subject of larceny, such robber not being armed with a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 15 years.”
MCLA 750.357; MSA 28.589: "Any person who shall commit the offense of larceny by stealing from the person of another shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years.”