People v. Neal

D. E. Holbrook, Jr., J.

(dissenting). I cannot agree that the defendant admitted sufficient facts to enable the trial court to accept his plea of guilty to assault with intent to rob and steal while armed. While my reading of the record reveals that the defendant admitted to several crimes,¹ I fail to see how a fact finder could infer that the defendant committed the crime to which he pled guilty. Guilty Plea Cases, 395 Mich 96, 128-132; 235 NW2d 132 (1975).

The elementary elements of the crime of assault with intent to rob and steal while armed are threefold: (1) an assault, (2) an intent to commit a larceny from a person through fear and violence,² and (3) being armed with a dangerous weapon. Accord, People v Sanford, 65 Mich App 101, 104; 237 NW2d 201 (1975). It is the general rule that the assault must simultaneously occur with the intent to rob. People v Herbert Sanders, 28 Mich App 274, 276-277; 184 NW2d 269 (1970), State v Lewis, 173 Iowa 643, 647; 154 NW 432, 433 (1915), State v Sala, 63 Nev 270, 287, 169 P2d 524, 532 (1946), Hanson v State, 43 Ohio 376, 378; 1 NE 136, 137 (1885). In Michigan an exception to the general rule has been created to allow the assault to occur during flight contemporaneous to a theft without force. People v Herbert Sanders, supra at 277. However, the exception set forth in People v Herbert Sanders is based on the theory that the taking is not complete at that time. Hermann v State, 239 Miss 523, 529; 123 So 2d 846, 849 (1960). It is not enough that the assault occur at a later time when the victim attempts to regain the property. Thomas v State, 91 Ala 34, 36; 9 So 81, 92 (1890), Montsdoca v State, 84 Fla 82, 86; 93 So 157, 159 (1922), State v Sala, supra.

During the plea taking all that the defendant admitted to was that he drew a gun on the victim and refused to return the victim’s money. I can find nothing in the record to indicate when the theft occurred. In order to convict the defendant of the crime to which he pled guilty, it would be necessary for the finder of fact to infer that the defendant had participated in the theft and then infer that the assault occurred shortly after the theft. This is an impermissible inference upon an inference. People v Atley, 392 Mich 298, 314-315; 220 NW2d 465 (1974).

Since the prosecutor has failed to establish the necessary time link between the assault and the theft I would remand the case to the trial court for an evidentiary hearing in which the prosecutor would be given the opportunity to establish that missing element. If he is able to do so and there is no contrary evidence the conviction should be affirmed; while if he is unable to do so the plea should be set aside. If the evidence is contradicted the trial court should treat the matter as a motion to withdraw the plea and proceed to exercise its discretion. Guilty Plea Cases, supra at 129. That discretion, if it needs to be exercised, should be exercised with "great liberality”. People v Lewandowski, 394 Mich 529; 232 NW2d 173 (1975), People v Morgan, 63 Mich App 686, 690; 235 NW2d 154 (1975) (D. E. Holbrook, Jr., J., dissenting).

I would remand for proceedings consistent with this opinion.

1 Eg., felonious assault, MCLA 750.82; MSA 28.277, receiving and concealing stolen property, MCLA 750.535; MSA 28.803.

2 People v Chamblis, 395 Mich 408, 424; 236 NW2d 473 (1975).