People v. Rigsby , 92 Mich. App. 95 ( 1979 )

Per Curiam.

Arthur Rigsby, Jr., was convicted by a jury of possession of burglar’s tools contrary to MCL 750.116; MSA 28.311, in his trial with codefendant Benjamin Harrison Boone. The charge against each defendant was submitted to the jury on theories of both principal and aider and abettor liability. MCL 767.39; MSA 28.979. He was sentenced to imprisonment for a term of 2 to 10 years, and appeals of right.

The trial court instructed the jury regarding the elements of the principal offense, possession of burglar’s tools, and the elements requisite to liability as an aider and abettor. The jury was instructed that the crime charged must have been committed by one of the defendants; that one or both of the defendants must have performed acts or given encouragement which aided or assisted the commission of the crime; and that "at least one of the defendants must have intended the commission of the crime charged at the time of giving the aid or encouragement”.

The defendant contends that the instructions of the trial court were deficient with respect to the crucial element of criminal intent. He maintains that the instruction allowed the jury to convict him as an aider and abettor without finding that he ever possessed any culpable intent. We agree.

The offense of possession of burglar’s tools is a specific intent crime, for conviction of which it must be shown that the defendant intended to employ the tools for the illegal purpose. People v Dorrington, 221 Mich 571, 574; 191 NW 831 (1923). The aider and abettor of a specific intent crime, if not himself possessed of the requisite specific intent, must be shown to have rendered his aid and assistance to the principal actor with the knowledge that the principal himself possessed the intent necessary to be guilty of the crime. People v Gordon, 60 Mich App 412; 231 NW2d 409 (1975), lv den 397 Mich 884 (1976), People v Poplar, 20 Mich App 132; 173 NW2d 732 (1969). While the power of the appellate court to review jury instructions in the absence of objection of counsel is discretionary and is to be used "sparingly”, Hunt v Deming, 375 Mich 581; 134 NW2d 662 (1965), we are presuaded that, in light of the insufficient evidence in support of the defendant’s liability as a principal offender and the circumstantial proof of his intent or knowledge as an aider and abettor, the instruction that "one” of the parties should have intended the crime was insufficient and prejudicial. As this error in jury instructions relates to a basic and controlling issue, this Court will intervene in the absence of an objection in the trial court. People v MacPherson, 323 Mich 438; 35 NW2d 376 (1949).

The other errors assigned by the defendant warrant no discussion.

Reversed and remanded.