People v. Henry

Michigan Court of Appeals

People v. Henry

205 N.W.2d 498, 44 Mich. App. 290, 1973 Mich. App. LEXIS 989

CourtMichigan Court of Appeals

DecidedJanuary 16, 1973

DocketDocket 11101

StatusPublished

Cited by3 cases

This text of 205 N.W.2d 498 (People v. Henry) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Henry, 205 N.W.2d 498, 44 Mich. App. 290, 1973 Mich. App. LEXIS 989 (Mich. Ct. App. 1973).

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Opinions

Targonski, J.

The defendant was convicted by a jury of breaking and entering with intent to commit larceny in violation of MCLA 750.110; MSA 28.305. He was sentenced to serve from seven to ten years for the offense.

The defendant’s conviction arose out of the breaking and entering of Lenny’s Tavern on the morning of July 17, 1970. The arresting officer testified that at approximately 5:20 a.m., while on patrol, he noticed that the window of the tavern was broken. After he got out of his car to investigate, he apprehended the defendant who was running from the back of the tavern. An investigation of the premises revealed that the juke box had been pried open and the money bag was on the floor. The defendant claimed that he was merely standing in the area and that the police had mistakenly arrested him instead of the real culprit.

[292]*292The defendant’s principal claim of error is that the trial court committed prejudicial error by affirmatively excluding lesser included offenses from the jury’s consideration. Thus, the familiar Lemmons¹ argument faces this Court once again.

The pertinent portion of the court’s instruction reads as follows:

"There are no included offenses in this case, because the evidence is practically undisputed—áhd the defendant is not seriously contending otherwise—the evidence is undisputed that there was a breaking and entering of Lenny’s Tavern with intent to commit a larceny; so there is no automatic included offense. In some cases we do have included offenses.”

Defense counsel failed to request an instruction on lesser included offenses nor did he object to the court’s charge as given.

This Court held in People v Membres, 34 Mich App 224, 232 (1971):

"that Lemmons requires a reversal only where: (1) there is no request for an instruction on lesser offenses; (2) there is evidence on the record to support a conviction on a lesser offense so that, if requested, it would have been error to refuse to instruct on it; and, (3) the court affirmatively excludes the jury from considering lesser offenses.”

It is clear that requirements (1) and (3) of Mem-bres have been satisfied in the present case. As to number (1), defense counsel never requested an instruction on lesser offenses. The court also used the magic words, prohibited by Lemmons, supra, that "there are no included offenses”. Therefore, the pivotal question which must be resolved is [293]*293whether there was evidence to support a conviction on a lesser offense.

This Court has held that the offense of breaking and entering with intent to commit larceny includes the lesser offenses of entering a building without breaking, and entering a building without breaking and without permission. People v Simpson, 5 Mich App 479 (1966); People v Blevins, 30 Mich App 72 (1971); People v Herbert Van Smith Jr, 30 Mich App 384 (1971).

The defense of the defendant in the instant case was simply that he did not commit the crime. The evidence adduced at trial proved conclusively that the front window of the tavern had been smashed. Consequently, since it was clearly established at trial that there was a breaking, the lesser included offenses could not be supported by the evidence. People v Tiszae, 23 Mich App 114 (1970). Therefore, the trial court did not err in excluding the lesser included offenses from the consideration of the jury.

The defendant also contends that the arrest warrant was issued without a showing of probable cause. However, it is well settled in this state that a peace officer may arrest a person without a warrant when a felony has been committed and he has reasonable cause to believe that such person committed it. MCLA 764.15; MSA 28.874; People v Griffin, 33 Mich App 474 (1971). In the instant case, the proof established that the officer had reasonable cause to believe a felony had been committed when he saw the window had been broken. It is equally clear that the officer had reasonable cause to believe that the defendant committed the crime when he heard the back door shut and saw the defendant fleeing from the back [294]*294of the building. Therefore, we find that the arrest was valid without a warrant.

Affirmed.

R. B. Burns, P. J., concurred.

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Targonski, J.

The defendant was convicted by a jury of breaking and entering with intent to commit larceny in violation of MCLA 750.110; MSA 28.305. He was sentenced to serve from seven to ten years for the offense.

The defendant’s conviction arose out of the breaking and entering of Lenny’s Tavern on the morning of July 17, 1970. The arresting officer testified that at approximately 5:20 a.m., while on patrol, he noticed that the window of the tavern was broken. After he got out of his car to investigate, he apprehended the defendant who was running from the back of the tavern. An investigation of the premises revealed that the juke box had been pried open and the money bag was on the floor. The defendant claimed that he was merely standing in the area and that the police had mistakenly arrested him instead of the real culprit.

[292]*292The defendant’s principal claim of error is that the trial court committed prejudicial error by affirmatively excluding lesser included offenses from the jury’s consideration. Thus, the familiar Lemmons¹ argument faces this Court once again.

The pertinent portion of the court’s instruction reads as follows:

"There are no included offenses in this case, because the evidence is practically undisputed—áhd the defendant is not seriously contending otherwise—the evidence is undisputed that there was a breaking and entering of Lenny’s Tavern with intent to commit a larceny; so there is no automatic included offense. In some cases we do have included offenses.”

Defense counsel failed to request an instruction on lesser included offenses nor did he object to the court’s charge as given.

This Court held in People v Membres, 34 Mich App 224, 232 (1971):

"that Lemmons requires a reversal only where: (1) there is no request for an instruction on lesser offenses; (2) there is evidence on the record to support a conviction on a lesser offense so that, if requested, it would have been error to refuse to instruct on it; and, (3) the court affirmatively excludes the jury from considering lesser offenses.”

It is clear that requirements (1) and (3) of Mem-bres have been satisfied in the present case. As to number (1), defense counsel never requested an instruction on lesser offenses. The court also used the magic words, prohibited by Lemmons, supra, that "there are no included offenses”. Therefore, the pivotal question which must be resolved is [293]*293whether there was evidence to support a conviction on a lesser offense.

This Court has held that the offense of breaking and entering with intent to commit larceny includes the lesser offenses of entering a building without breaking, and entering a building without breaking and without permission. People v Simpson, 5 Mich App 479 (1966); People v Blevins, 30 Mich App 72 (1971); People v Herbert Van Smith Jr, 30 Mich App 384 (1971).

The defense of the defendant in the instant case was simply that he did not commit the crime. The evidence adduced at trial proved conclusively that the front window of the tavern had been smashed. Consequently, since it was clearly established at trial that there was a breaking, the lesser included offenses could not be supported by the evidence. People v Tiszae, 23 Mich App 114 (1970). Therefore, the trial court did not err in excluding the lesser included offenses from the consideration of the jury.

The defendant also contends that the arrest warrant was issued without a showing of probable cause. However, it is well settled in this state that a peace officer may arrest a person without a warrant when a felony has been committed and he has reasonable cause to believe that such person committed it. MCLA 764.15; MSA 28.874; People v Griffin, 33 Mich App 474 (1971). In the instant case, the proof established that the officer had reasonable cause to believe a felony had been committed when he saw the window had been broken. It is equally clear that the officer had reasonable cause to believe that the defendant committed the crime when he heard the back door shut and saw the defendant fleeing from the back [294]*294of the building. Therefore, we find that the arrest was valid without a warrant.

Affirmed.

R. B. Burns, P. J., concurred.

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205 N.W.2d 498, 44 Mich. App. 290, 1973 Mich. App. LEXIS 989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-henry-michctapp-1973.

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