People v. De Cair , 23 Mich. App. 438 ( 1970 )

23 Mich. App. 438 (1970) 178 N.W.2d 830

PEOPLE
v.
DE CAIR

Docket No. 7,383.

Michigan Court of Appeals.

Decided April 28, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick Carnovale, Chief, Appellate Division, and Leonard Meyers, Assistant Prosecuting Attorney, for the people.

Frank B. Vecchia, for defendant on appeal.

Before: J.H. GILLIS, P.J., and V.J. BRENNAN and W.J. WEIPERT,^[*] JJ.

J.H. GILLIS, P.J.

The defendant, Lee Richard De Cair, was charged with having committed the crime of unlawfully driving away a motor vehicle under MCLA § 750.413 (Stat Ann 1954 Rev § 28.645). He was tried in the Wayne County Circuit Court and convicted as charged. On appeal, the sole issue presented is whether the circuit court had jurisdiction to try the action. It is defendant's contention that he could only be tried in the Recorder's Court for the city of Detroit.

To constitute the offense, possession must be taken, wilfully and without authority, followed by a driving or taking away of the vehicle in question. People v. Smith (1921), 213 Mich. 351; People v. Limon (1966), 4 Mich. App. 440. In the present case, the evidence tended to show that defendant took possession of the car without authority while it was parked in front of a residence located on Fenmore Street in the city of Detroit. The testimony of two State Police officers established the remaining element of the crime charged: namely, that defendant drove or took away the car in question. These officers testified that on October 27, 1968, the date of the alleged offense, they observed the car being driven by defendant on Telegraph Road in Redford Township.

The officers' testimony, if believed, established that one of the essential elements of the crime, a driving or taking away of the vehicle, occurred in Wayne County, since Redford Township is in that county. Moreover, the act of driving the car away after taking possession, although initiated in Detroit, was continuous in nature and extended beyond the corporate limits of the city of Detroit.

Under the circumstances, we hold that defendant was lawfully tried in the Wayne County Circuit Court. By statute, the legislature has provided that whenever a felony consists of two or more acts done in the perpetration thereof, the people may prosecute in any county in which any one of which such acts were committed. MCLA § 762.8 (Stat Ann 1954 Rev § 28.851). This statute applies here. The offense is a multiple-element offense; it consists of "more than one act, each of which acts, or the effect of such acts, * * * constitute[s] an unlawful element of the offense, without the presence of which the offense could not be consummated." Annotation, 30 ALR2d 1265, 1269. See also, 4 Wharton's Criminal Law & Procedure, § 1510, p 98. Since one of the acts making up the felony occurred in Wayne County and continued beyond the corporate limits of the city of Detroit, defendant could be prosecuted in the circuit court. Cf. People v. Doe, alias Meyer (1933), 264 Mich. 475; People v. Pettijohn (1938), 283 Mich. 108.

Nor are we persuaded that MCLA § 726.11 (Stat Ann 1962 Rev § 27.3561), upon which defendant relies, precludes prosecution of the offense charged in the Wayne County Circuit Court. As we read the statute, the exclusivity provision is inapplicable here because an essential element of the crime continued beyond the corporate limits of Detroit. See People v. Rosa (1969), 382 Mich. 163, 167, 168.

Defendant's conviction is affirmed.

All concurred.

NOTES

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