People v. Thompson

N. J. Kaufman, J.

We agree with and adopt the facts presented in the dissenting opinion, but do not agree with the conviction of receiving or concealing stolen property over the value of $100, MCL 750.535; MSA 28.803, for the reasons stated in People v Ritchie, 85 Mich App 463; 271 NW2d 276 (1978).

The two cases are almost identical with the exception that, in the case at hand, defendant’s reference to the stolen automobile was a strategic move to explain why he fled the scene of the alleged robbery. Thus, he entered no objection to the addition of the receiving or concealing count, as he undoubtedly was hoping that the jury would find him guilty of receiving or concealing, and not guilty of robbery armed. Despite defendant’s failure to object,, it must be noted that the two offenses occurred on different days and had no connection with each other. They should not have been joined, especially after the trial was in progress. See People v Ormsby, 310 Mich 291, 303; 17 NW2d 187 (1945), where it is stated:

" '* * * But when the object and purpose is apparent[ly] to prosecute the respondent * * * for separate felonies by means of one information or indictment, the court will not permit it to be done. * * *”’ (Emphasis in original.)

Although this issue was not raised on appeal, since the function of this Court is to dispense justice it has limited power to raise questions on its own. People v Noel, 88 Mich App 752, 754; 279 NW2d 305 (1979).

In Ormsby, supra, a general verdict of guilty was entered upon an indictment charging distinct and separate offenses in separate counts. The Supreme Court reversed the conviction, finding the verdict invalid. That problem does not exist in this case, however, as the jury came in with separate verdicts of guilty of (1) robbery armed, (2) felony-firearm, and (3) receiving or concealing. Nevertheless, the instant verdicts are still infirm due to the improper joinder.

Although we agree with the general legal propositions the dissent raises, we must note that it was the prosecution who created the error by making the motion to add the receiving or concealing count. Thus, even though the defendant utilized the addition of this count as part of his defense strategy, it cannot be said that he created the error.

Accordingly, we affirm defendant’s robbery armed and felony-firearm convictions, but reverse his receiving or concealing conviction. In view of this decision, the question of corpus delicti in the receiving count need not be decided.

Affirmed in part; reversed in part.

D. C. Riley, J., concurred.