People v. Winhoven , 65 Mich. App. 522 ( 1975 )

65 Mich. App. 522 (1975) 237 N.W.2d 540

PEOPLE
v.
WINHOVEN

Docket No. 21544.

Michigan Court of Appeals.

Decided November 13, 1975.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and James J. Rostash, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Edward R. Wilson, Director, and Dennis M. Powers, Special Assistant Attorney General, of counsel), for the people.

Joseph Colombo and Sidney Fershtman, for defendant.

Before: McGREGOR, P.J., and D.E. HOLBROOK, JR. and M.J. KELLY, JJ.

Leave to appeal applied for.

D.E. HOLBROOK, JR., J.

Defendant was convicted by a jury on June 11, 1974, of breaking and entering an occupied dwelling with intent to commit larceny. MCLA 750.110; MSA 28.305. Defendant was sentenced to a term of from 2 to 15 years in prison. He appeals as of right.

The object of the breaking and entering was a 12' X 60' mobile home situated in a mobile home park. The mobile home was the principal residence of Mr. and Mrs. William Lang. The structure rested on cement blocks which served to level it, although the axle and tires were still attached. However, a metal skirt attached to a wooden frame concealed the underside of the mobile home from view. The mobile home consisted of a kitchen, a living room, a bathroom, and two bedrooms. The mobile home was connected to sewage, water, electric and telephone service and the Langs received their mail there.

Some time after the breaking and entering was committed the defendant and his accomplice, who was the chief prosecution witness, were picked up by Robert Hannegan who drove them to a nearby restaurant. Both the accomplice and the defendant testified to this. However, Mr. Hannegan apparently knew nothing about the breaking and entering. He was not called in the prosecution's case-in-chief but was called as a rebuttal witness. Mr. Hannegan testified that the defendant attempted to get him to perjure himself to help defendant's alibi.

At sentencing the trial court stated that one of its reasons for imposing the sentence that it did was for its deterrence value. Furthermore, the presentence report on the defendant initially stated that the defendant had been involved in an unrelated crime. However, this report was amended to state that the defendant had been found innocent of the second charge but that the probation officer still thought that he was involved.

Defendant's initial claim of error is that he was charged and convicted under an inappropriate statute. Since the crime occurred "in" a mobile home, defendant claims he should have been charged and tried under the statute concerning breaking and entering of a motor vehicle or house trailer. MCLA 750.356a; MSA 28.588(1). It is defendant's contention that since the latter statute specifically mentions house trailers that the occupied dwelling statute does not apply when the breaking and entering is of a mobile home. See Reithmiller v People, 44 Mich. 280, 282; 6 N.W. 667 (1880), Mentel v Monroe Public Schools, 47 Mich. App. 467, 469; 209 NW2d 506 (1973).

While defendant makes an interesting argument, it must fail for several reasons. It is true that a mobile home is another name for a house trailer. Allstate Insurance Co v Walker, 111 Ga App 120, 122; 140 SE2d 910, 912 (1965), Lower Merion Twp v Gallup, 158 Pa Super 572, 575; 46 A2d 35, 36 (1946), appeal dismissed, 329 U.S. 669; 67 S. Ct. 92; 91 L. Ed. 591 (1946). However, a dwelling house has been defined as a place where a man lives with his family. DesRoches v McCrary, 315 Mich. 611, 614; 24 NW2d 511 (1946), Schadt v Brill, 173 Mich. 647, 654; 139 N.W. 878; 45 LRA(ns) 726 (1913). Thus, it is also possible for a mobile home to be a dwelling house. Artman v College Heights Mobile Park, Inc, 20 Mich. App. 193, 198; 173 NW2d 833 (1969), Allstate Insurance Co v Walker, supra, Lower Merion Township v Gallup, supra. When a mobile home is used as a person's principal residence, it more nearly fits within the meaning of the dwelling house statute^[1] than the house trailer statute.^[2]

Although this is a case of first impression in Michigan, in the context of the arson statutes,^[3] the Supreme Court has discussed the purposes for protecting dwelling houses more than other structures or objects. The burning of a dwelling house has been described as a crime against habitation rather than against the fee. Snyder v People, 26 Mich. 106, 107; 12 Am Rep 302 (1872). Consequently, a charge that a person burned a dwelling house of another could not be sustained when the defendant lived in the house even though he did not own it. People v Handley, 93 Mich. 46; 52 N.W. 1032 (1892), Snyder v People, supra. Likewise, what is sought to be protected in statutes proscribing breaking and entering of a dwelling house is the right to peaceful habitation. Smart v State, 244 Ind 69, 72-73; 190 NE2d 650, 652 (1963), State v Ebel, 92 Mont. 413, 416-417; 15 P2d 233, 234-235 (1932), Annotation, 43 ALR2d 831, 835 (1955).

This concept that what is sought to be protected is the habitation has been applied to a mobile home in an arson case. In Harden v State, 417 S.W.2d 170, 172-173 (Tex Crim App, 1967), the defendant had been convicted after burning a trailer. Separate statutes proscribed the commission of arson against houses^[4] and trailers.^[5] The court affirmed a conviction under the former statute. It ruled that the mobile home was a house when it was used as a residence.

The theory that a person's habitation is to receive more protection also finds support in the statutory breaking and entering scheme in Michigan. The maximum penalty for breaking and entering a motor vehicle or house trailer is 5 years in prison. MCLA 750.356a; MSA 28.588(1). A person convicted of breaking and entering any "tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, structure, boat or ship, railroad car or any private apartment in any such buildings or any unoccupied dwelling house" may receive 10 years in prison. MCLA 750.110; MSA 28.305. But if the breaking and entering occurs in an occupied dwelling house, a person may be imprisoned for 15 years. MCLA 750.110; MSA 28.305.

Furthermore, it should be noted that the two statutes prohibit different things. The dwelling house statute proscribes any breaking and entering with the intent to commit a felony or a larceny. On the other hand, the house trailer statute only punishes a breaking and entering with the intent to commit a larceny. This is consistent with the theory that the former statute is designed to protect the habitation while the latter statute is merely intended to protect property.

By our holding that a mobile home may be an occupied dwelling house under MCLA 750.110; MSA 28.305, we do not eliminate the words "house trailer" from MCLA 750.356a; MSA 28.588(1). There are still many house trailers that are not used as dwelling houses. Moreover, the prosecuting attorney still retains his inherent authority to charge under MCLA 750.356a; MSA 28.588(1), if he so desires in his sound discretion. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672; 194 NW2d 693 (1972), People v Mire, 173 Mich. 357; 138 N.W. 1066 (1912), People v Birmingham, 13 Mich. App. 402, 407; 164 NW2d 561 (1968).

Defendant's next claim of error is that the prosecutor failed to endorse Robert Hannegan as a res gestae witness. He argues that this testimony should have been presented in the prosecutor's case-in-chief and not as rebuttal testimony. However, even assuming that Mr. Hannegan was a res gestae witness, it is clear that defendant knew of his existence. Even with this knowledge defendant failed to move for his endorsement until after he rested his own case. This untimely motion for endorsement or production of a witness waives the right to endorsement and production. People v Parsons, 59 Mich. App. 79, 87; 228 NW2d 852 (1975), People v Love, 18 Mich. App. 228, 231; 171 NW2d 33 (1969).

Mr. Hannegan's testimony was proper rebuttal testimony and in fact would have been improper during the prosecution's case-in-chief. The testimony of the defendant and his accomplice indicated that Mr. Hannegan did not have any knowledge concerning any part of the criminal transaction. People v Tocco, 60 Mich. App. 130, 135-137; 230 NW2d 341 (1975). By the time Mr. Hannegan picked up the defendant and his accomplice and took them to the diner, the two had finished their crime. His testimony was limited to indicating that the defendant had requested him to assist the defendant in fabricating an alibi. Since this was solely for impeachment purposes^[6] it would have been improper before the defendant testified. It is first necessary for the defendant to put his credibility in question by testifying before it may be impeached. People v Whitson, 43 Mich. 419, 420; 5 N.W. 454 (1880), Taylor v Klahm, 8 Mich. App. 516, 519; 154 NW2d 529 (1967).

Defendant's next contention is that he should be resentenced because the trial court did not individualize his sentence, and the presentence report contained inaccurate and prejudicial statements. We reject defendant's contention that the trial court did not individualize his sentence. Merely stating that it hoped the sentence would deter some future law breakers is not enough to hold that the trial court did not individualize the defendant's sentence. People v Van Epps, 59 Mich. App. 277, 285-286; 229 NW2d 414 (1975).

It must be noted that the defendant did not object to the information contained in the presentence report. In fact, defense counsel used it as part of his argument for mercy in sentencing. When defendant makes a tactical decision not to object and affirmatively uses the objectionable material when that decision backfires, he should not be heard to complain. People v Lee, 391 Mich. 618, 637; 218 NW2d 655 (1974). However, it should be noted that the sole basis of our decision on this issue is that defendant failed to object. We do not condone probation officers injecting personal opinions of guilt on other charges when the defendant has been found not guilty by a jury or court.

Defendant also argues that the trial court should have sua sponte instructed on lesser included offenses. However, no instructions on lesser included offenses were requested and no objection was raised to the instructions as given. Since there was no objection defendant is precluded from raising this issue on appeal. GCR 1963, 516.2. People v Lula Watkins, 60 Mich. App. 124, 129; 230 NW2d 338 (1975). We further note that the trial court did not affirmatively exclude the jury's consideration of lesser included offenses. People v Scott, 61 Mich. App. 91, 97; 232 NW2d 315 (1975).

We have reviewed defendant's remaining allegations of error and find them without merit.

Affirmed.

NOTES

[1] MCLA 750.110; MSA 28.305.

[2] MCLA 750.356a; MSA 28.588(1).

[3] MCLA 750.71 et seq.; MSA 28.266 et seq.

[4] Vernon's Ann. Penal Code, art 1305 (repealed pursuant to a revision of the Texas penal code by Acts 1973, 63rd Leg., chp 399, § 3(a), eff. Jan 1, 1974).

[5] Vernon's Ann. Penal Code, art 1318 (repealed, see n 4).

[6] On cross examination, the defendant could not remember whether he had asked Mr. Hannegan to perjure himself to assist the defendant.