People v. Herbert Sanders

28 Mich. App. 274 (1970) 184 N.W.2d 269

PEOPLE
v.
HERBERT SANDERS

Docket No. 8,236.

Michigan Court of Appeals.

Decided December 1, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.

Raymond L. Miller, for defendant on appeal.

Before: LESINSKI, C.J., and BRONSON and ENGEL,^[*] JJ.

LESINSKI, C.J.

Defendant Herbert Sanders was convicted and sentenced, upon his plea of guilty, of assault with intent to rob and steal being armed. MCLA § 750.89 (Stat Ann 1962 Rev § 28.284). He appeals as of right alleging that the trial court's inquiry into the facts surrounding the guilty plea did not establish the essential elements of the crime in violation of the requirements of GCR 1963, 785.3 and People v. Barrows (1959), 358 Mich. 267, 272.

The record shows that defendant stated he followed a woman into her home and, while armed, took a bag of money from the bedroom by stealth. After he was discovered, he took her purse from the living room and fled from the house to a waiting automobile. He stated he was pursued by the woman's grandson and that he fired a shot into the air to prevent the grandson from catching him or obtaining the license number of the car.

Defendant's argument is based on a claimed absence of facts evidencing an assault. He points to passages of the transcript where he states that the gun was not exposed while he was in the house and that the victims were not aware of the theft until he had snatched the bag and was headed out of the house.

We find that sufficient facts were presented to allow the trial court's acceptance of the proffered plea of guilty. It is clear that the woman saw defendant run from the house with her purse and bag of money, because defendant acknowledged that it was then that she screamed for help. It is also clear that the gun was exposed when the shot was fired, at the commencement of the escape. From these facts the trial judge could properly find that defendant committed an assault and that the taking was not completed until after defendant made his escape. The remaining issue is whether the facts as stated by defendant support a finding of specific intent to rob and steal necessary to support the charge. Wilson v. People (1872), 24 Mich. 410; People v. Lilley (1880), 43 Mich. 521.

The general rule is that an assault must be concomitant with the taking in order to support a charge of armed robbery. People v. Davis (1966), 50 Cal Rptr 215; 2 Wharton's Criminal Law and Procedure, § 559, p 263; 58 A.L.R. 656. This rule also applies to the lesser included offense of assault with intent to commit armed robbery. Hanson v. State (1885), 43 Ohio St 376 (1 N.E. 136). Research of the current status of the law reveals divergent views as to whether an assault can properly be said to be contemporaneous with the taking when made in escape from the victim.^[1] We find no Michigan case directly on point. A close reading of the cases from other jurisdictions reveals no valid basis for isolating the incidents of the entire event when the taking is not effectively completed until after the assault. Hermann v. State (Miss, 1960), 123 So 2d 846. It is the opinion of this Court that the incident of the taking must be viewed in its totality in order to ascertain the intent of the defendant when the assault occurs.

As stated in People v. Bartlett (1969), 17 Mich. App. 205, 208:

"The court rule does not, however, require that the offense to which the defendant pleads guilty must be established beyond peradventure before the trial judge may accept a proffered plea of guilty. It requires, in the words of the Barrows court [supra], (p 272) ``reasonable ascertainment of the truth of the plea.'"

We find that the trial judge could properly infer the specific intent necessary to support the charge of assault with intent to rob and steal being armed from the defendant's statements. Such inference is a reasonable ascertainment of the truth of the plea.

Affirmed.

NOTES

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

[1] See, for example: People v. Jones (1919), 290 Ill 603 (125 N.E. 256, 8 A.L.R. 357); 2 Wharton's Criminal Law & Procedure, § 559, p 263; and 58 A.L.R. 656, 662.