People v. Dale Wilson , 27 Mich. App. 395 ( 1970 )

27 Mich. App. 395 (1970) 183 N.W.2d 626

PEOPLE
v.
DALE WILSON

Docket No. 9,011.

Michigan Court of Appeals.

Decided October 27, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief Assistant Prosecuting Attorney, and James Ake, Assistant Prosecuting Attorney, for the people.

William A. Shaheen, Jr., for defendant on appeal.

Before: FITZGERALD, P.J., and HOLBROOK and T.M. BURNS, JJ.

PER CURIAM.

Defendant was convicted by a jury of breaking and entering a doctor's office in a building with intent to commit larceny. MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305).

On appeal, defendant questions the sufficiency of the evidence to convict and contends he was denied due process of law because he was forced to refrain from appearing and testifying in his own behalf due to a previous criminal record and almost certain impeachment.

The record discloses evidence which, if believed, supports the jury's finding of guilt.

A man was seen breaking into the doctor's office. Police were called and defendant was seen coming out of the front door, but when he saw the police, he stepped back inside. Another officer reached inside the door and pulled the defendant out. Although defendant had no stolen articles in his possession, he did have a crowbar, hammer, and flashlight. Further testimony established that the office was locked, defendant had no permission to enter, and the office was roughly and forcibly disturbed. The crime occurred at approximately 3 a.m.

Defendant was "caught in the act". The corpus delicti of the crime of breaking and entering with intent to commit larceny is established by the unexplained presence of the defendant in the building at 3 a.m. with the window screen and window broken. People v. Curley (1894), 99 Mich 238; People v. Boyce (1946), 314 Mich 608; People v. Lambo (1967), 8 Mich App 320. See People v. Morrow (1970), 21 Mich App 603.

There is an ample basis for drawing the inference that a prima facie case of intent to commit larceny was shown, not by the pyramiding of inferences, as claimed by the defendant, but, clearly and logically, by the evidentiary facts and circumstances.

This Court does not disturb a verdict unless evidence fails to support the finding of fact by the jury. People v. Floyd (1966), 2 Mich App 168; People v. Casper (1970), 25 Mich App 1. We find that the jury's verdict in the case before us is amply supported by the evidence. People v. Arither Thomas (1967), 7 Mich App 103; People v. McClendon (1970), 21 Mich App 142, 145.

After careful court instruction, defendant freely chose not to testify in his own defense. No objection was made. Failure to object during trial to alleged errors forecloses raising the objection for the first time on appeal. People v. Dailey (1967), 6 Mich App 99; People v. Wise (1969), 18 Mich App 21.

Affirmed.