People v. Crittle , 38 Mich. App. 118 ( 1972 )

38 Mich. App. 118 (1972) 195 N.W.2d 799

PEOPLE
v.
CRITTLE

Docket No. 10045.

Michigan Court of Appeals.

Decided January 24, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Ronald J. Taylor, Prosecuting Attorney, and Ronald R. Moses, Assistant Prosecuting Attorney, for the people.

James J. Mollison, for defendant on appeal.

Before: R.B. BURNS, P.J., and FITZGERALD and V.J. BRENNAN, JJ.

Leave to appeal granted, 387 Mich. 796.

PER CURIAM.

Samuel Crittle was convicted of robbery armed by a jury in Berrien County. MCLA 750.529; MSA 28.797.

The victim of the alleged offense testified that on April 7, 1970, defendant entered the grocery store where she worked. He produced a toy handgun and stated, "This is a hold-up". She gave him the folding money from the register which he took and fanned out on the counter. He had a mask, but didn't put it over his face because she already knew who he was, and for this reason he stated he should shoot her.

She said, "Please don't shoot me". He stood there for a minute, gave the money back to her and said it was an April fool's joke. Thereafter, he ordered and paid for one bottle of beer and left.

Defendant was arrested, adjudged guilty, and his motion for a new trial was denied. From this denial, defendant appeals.

In the motion for a new trial, and on appeal, defendant claims reversible error in jury instructions. There was no objection to the court's jury charge. GCR 1963, 516.2 controls and requires that counsel object to alleged errors before the jury retires if he expects to rely upon such alleged errors on appeal. The no objection-no review rule applies unless there is a miscarriage of justice. People v. Fry (1970), 27 Mich. App. 169; People v. Turner (1971), 31 Mich. App. 44.

Two new issues are briefed on appeal. One concerns an alleged constitutional right violation and the second concerns an alleged prejudicial remark by the trial judge. This Court will not entertain issues raised for the first time on appeal unless a clear injustice has been demonstrated. People v. Scott (1970), 23 Mich. App. 568; People v. Calvin (1970), 28 Mich. App. 568.

The record discloses no miscarriage of justice.

Defendant contends:

1. Because the testimony of police officers was in direct conflict, there was a lack of general credibility and weight, amounting to reversible error.

2. The specific intent required in armed robbery was negated by defendant's intoxicated condition, referred to by witnesses for the prosecution.

3. The necessary "taking" required by law was not committed by defendant.

Conflicting testimony was presented and it was properly left to the jury to resolve the conflict. People v. Blackwell (1969), 17 Mich. App. 377; People v. Clark (1971), 34 Mich. App. 70.

We do not weigh conflicting evidence on appeal in a criminal case. People v. Hogan (1967), 9 Mich. App. 78.

The degree of intoxication is a question of fact and its determination is a function of the jury. People v. Kelley (1970), 21 Mich. App. 612; People v. Green (1970), 26 Mich. App. 329. The required criminal intent can be inferred from defendant's actions. People v. Gill (1967), 8 Mich. App. 89, 93; People v. Gilliam (1970), 27 Mich. App. 314, 317.

The jury listened to the witnesses and after court instruction found the defendant was not so intoxicated as to negate the requisite criminal intent to commit the crime. We are not persuaded to rule otherwise.

The element of asportation in a charge such as this is established by any movement of the goods. People v. Anderson (1967), 7 Mich. App. 513; People v. John W. Ragland (1971), 34 Mich. App. 624.

The "from his person or in his presence" element is established upon proof that the property was so in the possession or under the control of the victim that violence or putting in fear of violence was needed to sever such possession or control. People v. Moore (1968), 13 Mich. App. 320, 323; People v. McCray (1969), 17 Mich. App. 596, 598.

Application of these principles to the instant case supports a finding that an intended armed robbery occurred. We conclude that there was sufficient evidence, if believed by the jury, to justify a finding of guilt beyond a reasonable doubt.

Affirmed.