People v. Page

252 N.W.2d 239, 73 Mich. App. 667, 1977 Mich. App. LEXIS 1365

• Court: Michigan Court of Appeals
• Decided: March 1, 1977
• Docket: Docket 24071
• Status: Published

Opinions

R. M. Maher, P. J.

Defendant’s conviction of attempted breaking and entering, MCLA 750.110; MSA 28.305, and MCLA 750.92; MSA 28.287, must be reversed.

Judge Holbrook’s opinion accurately recites the facts. Our disagreement with his opinion involves the question of instructions on lesser included offenses, specifically the requested instruction on attempted larceny in a building, MCLA 750.360; MSA 28.592, and MCLA 750.92; MSA 28.287.

The common-law test for lesser included offenses required "that the lesser must be such that it is impossible to commit the greater without first having committed the lesser”. People v Ora Jones, 395 Mich 379, 387; 236 NW2d 461 (1975). The lesser is necessarily included in the greater, and "[i]f the lesser offense is one that is necessarily included within the greater, the evidence will always support the lesser if it supports the greater”. Ora Jones, 395 Mich at 390.

Three cases are offered to support the proposition that attempted larceny in a building is not a necessarily included offense in a charge of breaking and entering. Two recent decisions of this Court supporting this proposition, People v Keatts, 54 Mich App 618; 221 NW2d 455 (1974), rev’d, 396 Mich 803; 237 NW2d 474 (1976), and People v Robert Brown, 72 Mich App 749; 250 NW2d 522 (1976), both cite to People v Huffman, 315 Mich 134; 23 NW2d 236 (1946). But, as Judge Bashara pointed out in his dissent in Keatts, 54 Mich App at 623, Huffman only held that a completed larceny in a building is not a lesser included offense of breaking and entering. Judge Bashara’s dissent analyzed the elements of attempted larceny in a building and the elements of breaking and entering and correctly concluded that the crime of attempted larceny in a building is encompassed by the crime of breaking and entering:

"Analyzing the elements, the felonious intent is the same, and the overt act can be the breaking and entering. The greater offense is completed upon the breaking and entering, while the lesser upon an overt act.” 54 Mich App at 623.

The order of the Supreme Court reversing the decision of this Court in Keatts, 396 Mich 803; 237 NW2d 474 (1976), does not disclose whether the Court approved Judge Bashara’s analysis. We agree with his analysis, and view attempted larceny in a building as a necessarily included offense to a charge of breaking and entering with intent to commit larceny.¹

In People v Lovett, 396 Mich 101; 238 NW2d 44 (1976), the Supreme Court reversed a conviction for larceny from the person because the trial court refused to give a requested instruction on attempted armed robbery, an offense necessarily included in the charge of armed robbery. The Court in Lovett did not explain why it reversed a conviction entered prior to its opinion in Ora Jones, supra, on the basis of the pronouncement in Ora Jones that requested instructions on necessarily included offenses must be given. People v Hearn, 354 Mich 468; 93 NW2d 302 (1958), People v Stevens, 9 Mich App 531; 157 NW2d 495 (1968), and a large number of other opinions before Ora Jones supported the trial court’s refusal to instruct on attempted armed robbery. We feel constrained to follow Lovett, and reverse defendant’s conviction because the trial court refused to give the requested instruction on the necessarily included offense of attempted larceny in a building.

Reversed and remanded.

N. J. Kaufman, J., concurred.

1 An attempted larceny need not be directed at any specific article or property. For example, reaching into an empty pocket may constitute attempted larceny. People v Jones, 46 Mich 441; 9 NW 486 (1881). The intent element of attempted larceny in a building is therefore no different than the intent element of breaking and entering with the intent to commit larceny. In neither crime must there be an intent to steal a particular object.