People v. Miller

192 N.W.2d 517, 35 Mich. App. 627, 1971 Mich. App. LEXIS 1538

Opinions

Danhof, P. J.

After a jury trial the defendants were convicted of breaking and entering an occupied dwelling house with intent to commit larceny. MCLA § 750.110 (Stat Ann 1971 Cum Supp § 28-.305). They now appeal.

The defendants have directed our attention to the trial court’s instructions on the elements of the offense. The issue as framed by the defendants is lacking in merit. However, our examination of the instructions reveals a defect that is so basic that a reversal is required. After a careful examination of the trial court’s instructions we must conclude that the court failed to instruct the jury on one of the elements of the offense.

When instructing the jury the trial court first read the information which stated that the defendants were charged with “breaking and entering an occupied dwelling- house with intent- to commit larceny therein”. The court also read the statute, the pertinent portion of which reads: “with intent to commit any felony or larceny therein”. No further mention was made of the element of intent to commit larceny.

The other elements of the offense were explained in some detail. The court defined the terms “breaking”, “entering”, and “an occupied dwelling house”, but no explanation of intent to commit larceny was given. Larceny was not defined and the jury was not instructed on the standards to be employed in determining if the necessary intent was present. Breaking and entering an occupied dwelling house with intent to commit larceny is a specific intent crime. But the jury was not instructed that they must find an intent to commit larceny in order to find the defendants guilty.

Furthermore, the trial court repeatedly referred to the offense as breaking and entering or as breaking and entering an occupied dwelling house without any reference to the element of intent to commit larceny. The jury was told that they had two possible verdicts, guilty of breaking and entering or not guilty of breaking and entering, with no mention of any intent to commit larceny. The jury brought in a verdict of guilty of breaking and entering.

We must review jury instructions as a whole, and not seize upon isolated language. People v. Charles Jackson (1970), 21 Mich App 132; People v. Fred W. Thomas (1967), 7 Mich App 519. In this case, when we consider the entire instruction, we cannot say that the court instructed the jury on the element of intent to commit larceny.

An instruction on intent to commit larceny was not requested. Normally, the failure to request an instruction, even an instruction to which a party is entitled as a matter of right, precludes an appellate court from setting aside a judgment because of the failure to instruct. MCLA § 768.29 (Stat Ann 1954 Rev § 28.1052). However, the statute also requires that the trial court “instruct as to the law applicable to the case”, and the two provisions must be read together. People v. Guillett (1955), 342 Mich 1; People v. MacPherson (1949), 323 Mich 438. There are some matters that are so basic that an instruction must he given whether or not a request is made. One of these is the nature of the offense. The court has an obligation to give a correct instruction on the elements of the offense. People v. Guillett, supra, and People v. MacPherson, supra.

Because there must he a new trial one other matter must he mentioned. The question of allowing an inquiry into a defendant’s prior arrests is controlled by our holding in People v. Brocato (1969), 17 Mich App 277, 302:

“We now hold that a defendant testifying at his own trial may not be asked if he has been arrested or charged with crime, where the arrest or charge has not resulted in a conviction and where the only purpose of the questions is to impeach the defendant’s credibility as a witness.”

The other issues raised do not merit discussion.

Reversed and remanded for a new trial.

Bronson, J., concurred.