People v. Jackson , 29 Mich. App. 654 ( 1971 )

29 Mich. App. 654 (1971) 185 N.W.2d 608

PEOPLE
v.
JACKSON

Docket No. 8619.

Michigan Court of Appeals.

Decided January 21, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Thaddeus F. Hamera, Chief Appellate Lawyer, and Stephen F. Osinski, Assistant Prosecuting Attorney, for the people.

Irving W. Goldsmith (Stuart L. Young, of counsel), for defendant on appeal.

Before: BRONSON, P.J., and R.B. BURNS and HOFF,^[*] JJ.

R.B. BURNS, J.

Defendant, convicted by a jury of larceny in a building (MCLA § 750.360 [Stat Ann 1954 Rev § 28.592]), was sentenced to a prison term of two to four years. Undisputed testimony established that defendant entered a retail store, put on a leather jacket valued at $55.95, put his own coat over the leather jacket, and was subsequently arrested attempting to leave the store. Defendant admits his theft of the jacket but claims he was charged and convicted of the wrong crime. Defendant contends that the legislature enacted MCLA § 750.356 (Stat Ann 1970 Cum Supp § 28.588), which makes larceny a misdemeanor when the stolen property is valued at $100 or less, to soften the harshness of the larceny-in-a-building offense, supra, which makes all larceny a felony. Defendant argues that the conviction under the felony offense of larceny, when the stolen property is valued at $100 or less, is contrary to legislative intent. We do not accept defendant's interpretation.

Defendant would be guilty under either of the larceny statutes. The legislature has obviously decided that larceny in a building presents a social problem separate and apart from simple larceny and that all larcenies in a building, value being irrelevant, deserve felony status. See Black v. Gladden (1964), 237 Or 631 (393 P2d 190).

The decision to charge the defendant with the felony instead of a misdemeanor is in the sound discretion of the prosecuting attorney. People v. Lombardo (1942), 301 Mich. 451; People v. Birmingham (1968), 13 Mich. App. 402; People v. Eineder (1969), 16 Mich. App. 270.

Defendant's arguments that the felony-larceny statute is vague and uncertain and that he was denied equal protection of the laws are without merit. It is clearly within the discretion of the legislature to distinguish simple larceny and larceny in a building as separate social evils.

Defendant's further argument that the prison term constitutes cruel and unusual punishment is also meritless. The prison term given defendant is not so disproportionate to the crime as to shock the conscience of this Court.

Affirmed.

All concurred.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.