Opinion
Docket No. 20569.
Decided April 28, 1975. Leave to appeal applied for.
Appeal from Recorder's Court of Detroit, Joseph A. Gillis, J. Submitted Division 1 March 13, 1975, at Detroit. (Docket No. 20569.) Decided April 28, 1975. Leave to appeal applied for.
Trent L. Chamblis was convicted of larceny from the person. Defendant appeals. Reversed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.
Charles T. Burke, for defendant on appeal.
Before: R.B. BURNS, P.J., and T.M. BURNS and R.M. MAHER, JJ.
Defendant Trent Chamblis, originally charged with armed robbery, MCLA 750.529; MSA 28.797, was convicted by a jury on March 15, 1974, of larceny from the person. MCLA 750.357; MSA 28.589. He was sentenced to serve one to ten years in prison on April 5, 1974. The only issue raised on appeal is whether it was error for the trial court to instruct the jury on the lesser included offenses of unarmed robbery and larceny from the person.
Early in the evening on October 24, 1973, the complainant, James Hall, and defendant had an argument centering around the fact that Hall did not want the defendant at his home while he was at work and his girl friend was there alone. During this argument, Hall allegedly hit the defendant in the head with a cane. The defendant then left the Hall home, returned to his own home, and told his brother, Ralph Denham, that Hall had struck him with the cane.
Later that evening, defendant returned to Hall's home with his brother and another man. They knocked at the front door, but rather than admit them, Hall called the police. Hall testified that when he saw the three men go to the back of his house he attempted to prevent their entry by bracing himself against the back door. His attempt was unsuccessful because the back door was kicked in, and Denham, defendant and the third man entered the home.
Denham then hit Hall across the side of the head with a pistol, rendering him momentarily unconscious. Hall testified that when he came-to he went into the livingroom and saw Denham counting some money. He also testified that before the men entered the house he had about $180 in his pocket. Further testimony also revealed that defendant struck Hall on the head with a cane that Hall had in his house.
Defendant testified in his own behalf and admitted striking Hall with the cane. However, he denied that either he or his brother took money from Hall, testifying instead that after he struck Hall with the cane, Hall voluntarily gave the money to the defendant and his brother.
Defense counsel requested the trial court to limit the jury's verdict to either guilty or not guilty of armed robbery so that a compromise verdict would not be reached. The trial court denied the request and instructed the jury on the lesser included offenses of unarmed robbery and larceny from a person. This appeal followed.
Under MCLA 750.529; MSA 28.797, the essential elements of armed robbery are: (1) that the defendant committed an assault upon the complainant; (2) that the defendant feloniously took some property, which might be the subject of larceny, from the complainant or in his presence; and (3) that the defendant was armed with a weapon described in the statute. See People v McGuire, 39 Mich. App. 308, 313; 197 N.W.2d 469 (1972).
Larceny from the person is an included offense in indictments for robbery. A conviction of a lesser offense than robbery may occur only where violence or threats of violence cannot be shown. People v Tolliver, 46 Mich. App. 34, 37; 207 N.W.2d 458 (1973), People v Gould, 15 Mich. App. 83, 87; 166 N.W.2d 530 (1968).
Defendant contends that in order for a trial court to instruct the jury on included offenses there must be evidence introduced in support of the lesser crimes. We agree. Unless a question of fact exists with regard to an element of the greater offense that is not an element of the included offense, there is no evidence tending to support the lesser included offense. People v Hodo, 51 Mich. App. 628, 640; 215 N.W.2d 733 (1974), People v Loncar, 4 Mich. App. 281; 144 N.W.2d 801 (1966), lv den 379 Mich. 760 (1967). Consequently, where the evidence presented relates only to the greater offense, an instruction on any of the lesser included offenses cannot be given. People v Tolliver, supra, People v Loncar, supra, People v Milhem, 350 Mich. 497; 87 N.W.2d 151 (1957).
In People v Tolliver, supra, the defendant was charged with unarmed robbery and convicted by a jury of larceny from the person. The sole question raised on appeal was whether it was error for the trial court to instruct the jury on the lesser included offense of larceny from the person. In reversing the conviction and ordering the defendant discharged, this Court stated at p 38; 207 N.W.2d 460:
"This Court has ruled that in order to warrant an instruction on any legally possible included offense, the offense must be included both legally and factually. People v Carabell, 11 Mich. App. 519, 524; 161 N.W.2d 776 (1968). In the instant case, there was no evidence that there was merely a taking of personal property from the complainant. Uncontradicted testimony was introduced that the complainant was attacked with force and violence by the perpetrator of the crime. The evidence in this case does not support an instruction of a lesser included offense."
The Court then went on to conclude that:
"It was the jury's duty to either return a verdict of guilty or innocent of unarmed robbery, depending upon whether they believed that the complainant correctly identified the defendant as being his assailant. To permit a conviction of the lesser included crime of larceny from the person to stand is to indorse a compromise verdict unsupported by the evidence." 46 Mich. App. 34, 39; 207 N.W.2d 460, 461 (1973). (Emphasis added.)
The same situation is present here. In this case there was no evidence that there was merely a taking of personal property from the person of the complainant. Here the evidence was uncontroverted that Hall was assaulted by defendant. Furthermore, uncontradicted testimony was introduced that defendant was armed with a dangerous weapon. Therefore, an instruction on a lesser included offense was not supported by the evidence. The jury should have returned a verdict of either guilty or innocent of armed robbery. As in Tolliver, "[t]o permit a conviction of the lesser included crime of larceny from the person to stand is to indorse a compromise verdict unsupported by the evidence".
Since the jury's verdict convicting defendant of the lesser offense operates as an implied acquittal of the greater offense, People v McMiller, 389 Mich. 425, 430; 208 N.W.2d 451 (1973), the defendant must be discharged.
Reversed and defendant ordered discharged.