DocketNumber： Docket 5,924
Citation Numbers： 177 N.W.2d 254, 22 Mich. App. 128, 1970 Mich. App. LEXIS 1957
Judges： Lesinski, Gillis, Quinn
Filed Date： 2/25/1970
Status： Precedential
Modified Date： 11/10/2024
Michigan Court of Appeals.
*129 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.
Robert M. Hetchler, for defendant on appeal.
Before: LESINSKI, C.J., and J.H. GILLIS and QUINN, JJ.
J.H. GILLIS, J.
Defendant was convicted by a Detroit recorder's court jury of assault with intent to rob and steal being armed.[1] The appeal to this Court is one of right.
The facts of the case are as follows:
The complainant, Marguerite Jenkins, was the owner of a party store. Maurice Garrison, a retired police officer, acted as a "security guard" for the store. On August 26, 1967, at approximately 10 a.m., defendant entered complainant's store and walked to the back to the canned goods counter. Mr. Garrison was at that time returning from the restroom in the rear of the building. Defendant grabbed him around the neck and wrestled him to the floor. He grabbed a gun which Mr. Garrison had placed under a pile of papers, and shot Garrison. Defendant then grabbed Garrison's change purse, which was lying on the floor, turned, gun in hand, *130 and approached the complainant who was standing behind a counter. Complainant shouted, "Don't shoot! Don't shoot!" and grabbed a gun from behind the counter. She shot at defendant and missed.
Defendant fired at her, but the bullet went into the ceiling. Complainant again fired erratically. Defendant then fled the store, firing two more shots as he was running across the street. Defendant was arrested about two blocks away from the scene of the crime by the Detroit police. The change purse was also found.
Defendant was originally charged with armed robbery of the pistol, certain money, and keys. At trial, the information was amended charging only armed robbery of the pistol from the complainant.
Defendant raises six issues on appeal which will be considered individually below.
Defendant claims that sufficient proof that he possessed the specific intent to rob complainant was not adduced at trial. Clearly, testimony must be elicited to establish specific intent where that intent is the gist of the offense.[2] A review of the record in this case establishes that there was an assault upon the complainant. Secondly, proof was adduced that the act of asportation of the gun was completed by defendant. In the case of People v. Anderson (1966), 64 Cal 2d 633 (414 P2d 366, 51 Cal Rptr 238), the defendant entered a pawn shop and was voluntarily shown a rifle. He stated he wished to purchase it and also needed some shells. After these *131 shells were delivered by the proprietor, defendant loaded the gun, stepped back, and shot a salesman. Defendant was convicted, inter alia, of robbery in the first degree (armed robbery) of the weapon and ammunition. On appeal the defendant argued that the evidence failed to support the robbery conviction. The court rejected the argument. See also People v. Brown (1966), 76 Ill App 2d 362 (222 NE2d 227), and People v. Phillips (1962), 201 Cal App 2d 383 (19 Cal Rptr 839, 841). There was sufficient evidence in the instant case to support a conviction for robbery armed also. Since our Supreme Court has stated that proof of the specific intent necessary to support a conviction of assault with intent to rob being armed can be found in the completed act of robbery armed, we find no merit in defendant's first claim of error. People v. Blanchard (1904), 136 Mich. 146. See also People v. Norman (1968), 14 Mich. App. 673.
Defendant contends that the amended information[3] improperly accused him of being armed with and stealing while armed, the very same pistol. We have answered this argument in section I.
Defendant also argues that the amended information was defective in that the pistol in question was not taken from the physical possession or person of the complainant. However, the testimony at trial established that the pistol was owned by complainant and was stolen in her presence. The armed robbery statute[4] makes it a felony to "rob, steal, and take from his person, or in his presence, *132 any money or other property". As indicated in section I, proof of the elements of armed robbery will suffice to support a conviction for the lesser included offense of assault with intent to rob being armed. The defendant's second claim of error is without merit.
Defendant admits that the testimony at the preliminary examination was essentially the same as the testimony at trial. Nonetheless, he argues that this testimony was insufficient to support the magistrate's finding of probable cause[5] that a felony had been committed. In view of our disposition in section I, discussion of this issue becomes unnecessary.
In framing this issue, defendant admits a consummated robbery. He then argues that a conviction for a lesser included offense was improper where the evidence establishes a consummated felony. This argument has been answered in People v. Baxter (1928), 245 Mich. 229,[6] and we find it unnecessary to repeat what was said there.
V
Were the Lower Court's Instructions to the Jury Erroneous?
Defendant questions the jury instructions for the first time on appeal. In the absence of substantial *133 error resulting in a miscarriage of justice, failure to object below waives the issue for appeal. People v. Allar (1969), 19 Mich. App. 675; People v. Mallory (1962), 2 Mich. App. 359; GCR 1963, 516.2. Reading the instructions as a whole, we find no error.
Affirmed.
All concurred.
[1] MCLA § 750.89 (Stat Ann 1962 Rev § 28.284).
[2] 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 20, p 38. Assault with intent to rob being armed is a specific intent crime. People v. McKeighan (1919), 205 Mich. 367.
[3] See MCLA § 767.76 (Stat Ann 1954 Rev § 28.1016).
[4] MCLA § 750.529 (Stat Ann 1969 Cum Supp § 28.797).
[5] MCLA § 766.13 (Stat Ann 1954 Rev § 28.931).
[6] See also People v. Norman (1968), 14 Mich. App. 673