People v. Bradovich , 305 Mich. 329 ( 1943 )

An information in the recorder's court for the city of Detroit charged defendants with the crime of larceny in a store of three men's suits of the total value of $113. The offense charged was laid under the criminal code, Act No. 328, chap. 52, § 360, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-360, Stat. Ann. § 28.592). Defendants waived trial by jury and upon trial before the court were found guilty of an attempt to commit the crime mentioned. On appeal defendants claim error because the information did not charge an attempt to commit, but only larceny consummated.

The evidence disclosed that defendants were in the store of the Bond Clothing Company, located at 1000 Woodward avenue in the city of Detroit, and were observed, by a salesman, taking clothing from a rack and concealing it beneath their own clothing. The salesman notified the manager who posted men at the exits from the room on the second floor where defendants took the clothing, stopped the elevator, and notified the police, who arrived within five or six minutes; and then the manager and the police went to the second floor in the elevator and there saw defendants walking toward a table in the front part of the room where defendants removed the stolen property from beneath their clothing and laid the same on the table. Under the evidence defendants were clearly guilty of larceny, and the question is whether they could be convicted of the lesser offense of attempt to commit that crime without a count to such effect in the information. There is no merit in the point.

We held in People v. Rose, 268 Mich. 529 (syllabus), that:

"Conviction may be had of lesser offense not charged in information where it is necessarily included within greater offense that is charged."

In People v. Baxter, 245 Mich. 229, 232, we said:

"Defendant invokes the rule, operative in some jurisdictions by judicial holdings, and in others by statute, that there can be no conviction of an attempt to commit a felony if the evidence establishes consummation of the felony. This is the rule in Illinois. People v. Lardner, 300 Ill. 264 (133 N.E. 375, 19 A.L.R. 721). But the rule is not general, and does not prevail in this jurisdiction. If an information admits of conviction of an attempt to commit a felony, an accused may be found guilty of the attempt, though the evidence shows a completed offense. People v. Miller, 96 Mich. 119; People v. Blanchard, 136 Mich. 146. Such a verdict may be illogical, but the people cannot complain, and the defendant must accept it, even though less in measure than his just deserts; at least he cannot be heard to say that he has suffered injury.

"In People v. Hoover, 243 Mich. 534, defendant was convicted of an assault, and it was urged ``that, under the proofs, defendant was either guilty of taking indecent liberties (the charge) or not guilty of any offense.' We made answer: ``This argument has been made before, but not with success;' citingPeople v. Martin, 208 Mich. 109; People v. Garner,211 Mich. 44."

The offense here charged necessarily included an attempt to commit the crime of larceny in a store, and whether followed by consummation of that purpose or not did not require that it be in a separate count in the information.

The trial judge was evidently of the opinion that, inasmuch as the defendants had shed their plunder without leaving the store, they had thus purged the taking thereof and gave defendants the benefit of a doubt created thereby. If so, in point of law the judge was mistaken. The crime of larceny was completed when defendants removed the clothing from the rack and concealed it beneath the clothing they were wearing.

Defendants claim there was no asportation from the store of the clothing so concealed. Removal of the clothing from the rack and concealing it under their own clothing constituted asportation. See note 19 A.L.R. 724.

As said before, defendants were guilty of larceny and were not injured in any respect by the adjudication of the court that they were guilty of an attempt to commit the crime of larceny. Defendants did not testify.

It is urged that they discarded the plunder of their own free will. What they did indicated knowledge of inability to escape and, therefore, they unloaded what they had stolen, evidently having the childish opinion that they could thus free themselves from the crime they had committed.

The convictions are affirmed.

BOYLES, C.J., and CHANDLER, NORTH, STARR, BUTZEL, BUSHNELL, and SHARPE, JJ., concurred.