People v. Lee

14 Mich. App. 328 (1968) 165 N.W.2d 518

PEOPLE
v.
LEE

Docket No. 4,504.

Michigan Court of Appeals.

Decided November 27, 1968.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Martin B. Legatz, Prosecuting Attorney, for the people.

James G. Orford, for defendant.

PER CURIAM:

Defendant was convicted by a jury of the crime of breaking and entering with intent to commit larceny.^[1] The issue raised for review is whether the people proved the requisite criminal intent for the crime of larceny.

The record discloses sufficient evidence from which the jury could find the defendant guilty of breaking and entering beyond a reasonable doubt. However, the record contains no direct and circumstantial evidence, in addition to that relating to the breaking and entering, from which defendant's intent to commit the crime of larceny could be found beyond a reasonable doubt. See People v. Boyce (1946), 314 Mich. 608; People v. Westerberg (1936), 274 Mich. 647; and People v. Curley (1894), 99 Mich. 238.

A proper disposition of this case is to set aside the sentence and to remand the defendant to the trial court with instructions to sentence the defendant for the crime of breaking and entering,^[2] a lesser includable offense. People v. Sharp (1968), 9 Mich. App. 34.

Remanded for proceedings consistent with this opinion.

HOLBROOK, P.J., and T.G. KAVANAGH and McINTYRE, JJ., concurred.

NOTES

[1] CL 1948, § 750.110, as amended by PA 1964, No 133 (Stat Ann 1968 Cum Supp § 28.305).

[2] CL 1948, § 750.115 (Stat Ann 1962 Rev § 28.310).