DocketNumber： Docket 7,438
Citation Numbers： 178 N.W.2d 138, 23 Mich. App. 114, 1970 Mich. App. LEXIS 1812
Judges： Burns, Holbrook
Filed Date： 3/31/1970
Status： Precedential
Modified Date： 11/10/2024
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief *115 Appellate Counsel, and Patricia J. Pernick, Assistant Prosecuting Attorney, for the people.
Frederick G. Buesser III, for defendant on appeal.
Before: R.B. BURNS, P.J., and HOLBROOK and T.M. BURNS, JJ.
PER CURIAM.
This case is submitted on the people's motion to affirm pursuant to GCR 1963, 817.5 (3). Defendants were convicted by a jury of breaking and entering a business place with intent to commit a larceny (MCLA § 750.110 [Stat Ann 1970 Cum Supp § 28.305]) on December 16, 1968. Defendants were sentenced to 3 to 10 years in the State prison.
On appeal, defendants assert that there was insufficient proof to establish the corpus delicti of the crime charged and that the trial judge should have instructed the jury as to the lesser offenses of entering without breaking and entering without breaking and without permission. See MCLA §§ 750.111; 750.115 (Stat Ann 1970 Cum Supp § 28.306; Stat Ann 1962 Rev § 28.310).
After a careful review of the record, we believe that the evidence is more than sufficient to substantiate the corpus delicti of the crime charged. Defendants were arrested by officers in the store at 3:25 a.m. with guns in their hands and merchandise scattered about the gun department. Moreover, a window had been broken since the time that the store had closed. We deem the case of People v. Lambo (1967), 8 Mich. App. 320, controlling with respect to the facts of the instant case.
Moreover, there were sufficient facts to convict each defendant of the crime individually, MCLA § 767.39 (Stat Ann 1954 Rev § 28.979).
*116 Finally, we find that there was no evidence to substantiate an instruction by the trial judge on the lesser included offenses. See People v. Carabell (1968), 11 Mich. App. 519. That there was a "breaking" cannot be disputed. People v. White (1908), 153 Mich. 617, 621. Motion to affirm is granted.