People v. Kirby , 42 Mich. App. 97 ( 1972 )

42 Mich. App. 97 (1972) 201 N.W.2d 355

PEOPLE
v.
KIRBY.

Docket No. 11774.

Michigan Court of Appeals.

Decided July 25, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and William C. Buhl, Prosecuting Attorney, for the people.

Arthur J. Tarnow, State Appellate Defender, and Larry R. Farmer, Assistant Defender, for defendant.

Before: T.M. BURNS, P.J., and HOLBROOK and BORRADAILE,^[*] JJ.

HOLBROOK, J.

On March 15, 1971, defendant Robert Kirby was convicted on his plea of guilty of wilfully and without authority taking possession of and driving away a motor vehicle in violation of MCLA 750.413; MSA 28.645. He was sentenced to from 4 to 5 years in prison on April 5, 1971, with 190 days credit on his maximum sentence and 282 days credit on his minimum sentence. From his conviction and denial of his motion for new trial, defendant appeals.

I.

Defendant contends that the courts of Michigan lack jurisdiction to try or convict him of unlawfully driving away an automobile where the elements of the offense were committed outside of the State of Michigan.

The people contend that the courts of Michigan have jurisdiction to try and convict the defendant of the charge involved because one of the elements of the offense was continuous in nature and took place in the State of Michigan.

It is a well-established rule that a sovereign state can exercise jurisdiction to punish a criminal offense only when the offense is committed in whole or in part in that sovereign state. Hardy v Betz, 105 NH 169; 195 A2d 582 (1963); Pennsylvania v Nelson, 377 Pa 58; 104 A2d 133 (1954), aff'd 350 U.S. 497; 76 S. Ct. 477; 100 L. Ed. 640 (1956); Bowen v Maryland, 206 Md 368; 111 A2d 844 (1955); People v Buffum, 40 Cal 2d 709; 256 P2d 317 (1953); Massachusetts v Lanoue, 326 Mass 559; 95 NE2d 925 (1950). No matter how closely an act is connected with the state, if all the criminal elements are done entirely outside a state's boundaries, it cannot be punished by that state. Green v State, 232 Ind 596; 115 NE2d 211 (1953).

The elements of the offense here involved are: (1) Possession of the vehicle must be taken; (2) there must be a driving away; (3) done wilfully; (4) without authority. People v De Cair, 23 Mich. App. 438 (1970); People v Limon, 4 Mich. App. 440 (1966).

The facts of the case indicate that all of the elements of the offense were initiated in Hammond, Indiana. However, one of the elements, that of driving away, may be continuous in nature. People v De Cair, supra. The defendant admitted that he took the vehicle in Hammond, Indiana, filled it with gas and drove to his uncle's house, which is in Van Buren County, Michigan. Thus, the commission of the element of the offense of driving away was continuous in nature and extended beyond the borders of the sovereign State of Indiana into Van Buren County in the State of Michigan. We therefore hold that the courts of Michigan have jurisdiction to punish the defendant for committing the offense here involved as a part of that offense occurred within the State of Michigan. Furthermore, the circuit court for the county of Van Buren was a proper place to prosecute the offense. MCLA 762.8; MSA 28.851.

II.

Defendant contends that the trial court did not properly inform him of his constitutional rights when it accepted his plea of guilty.

When the defendant's plea of guilty was taken on March 15, 1971, People v Jaworski, 387 Mich. 21 (1972), had not yet been decided. In that case, our Supreme Court held that Boykin v Alabama, 395 U.S. 238; 89 S. Ct. 1709; 23 L. Ed. 2d 274 (1969), governed the taking of guilty pleas after the date of that decision. Boykin was decided on June 2, 1969. Therefore, the rules therein govern the taking of the plea of guilty in the instant case.

Jaworski, supra, held that Boykin, supra, required that the record of the plea taking must show that the defendant was informed of each and all of the following rights that are waived on pleading guilty: (1) the right to trial by jury; (2) the right to confront one's accusers; and (3) the privilege against self-incrimination. A review of the record in the instant case indicates that the trial court did follow an exemplary plea procedure which essentially reflected the requirements of GCR 1963, 785.3. However, defendant was not informed of his right to confront his accusers and the privilege against self-incrimination. We, therefore, must vacate the defendant's conviction and remand to the circuit court for further proceedings consonant with this opinion.

Reversed and remanded.

All concurred.

NOTES

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