Opinion
Docket Nos. 11903-11904.
Decided March 22, 1973.
Appeal from Cass, James E. Hoff, J. Submitted Division 3 March 6, 1973, at Grand Rapids. (Docket Nos. 11903-11904.) Decided March 22, 1973.
John McGregor and Wayne McGregor were convicted of breaking and entering with intent to commit larceny. Defendants appeal. Reversed and a new trial ordered.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Michael E. Dodge, Prosecuting Attorney, for the people.
Bucknell, Gergely Foley, for defendant.
Defendants were tried without jury, found guilty of breaking and entering with intent to commit larceny, sentenced to terms of imprisonment, and appeal. The people's case was based entirely on circumstantial evidence. Defendants contend that the trial court erred in weighing such evidence by drawing an inference of ultimate fact from another inference.
MCLA 750.110; MSA 28.305.
A wakeful wife roused her husband to observe suspicious activity near a neighboring factory, the husband summoned police, and the 4 a.m. arrival of the police apparently aborted an in-process burglary. No intruders were found on the premises, but there were signs of forcible entry. A rear door and a sliding door, through which a pickup truck had been backed into the plant, stood open. The pickup truck, its hood still warm on arrival of the police, had been loaded with materials belonging to the plant owner. The truck proved to have been loaned by its owner to the defendants a day or two earlier and had not been returned by them. A search around the plant was commenced and officers found the defendants at about 7:25 a.m. in a cornfield somewhat over a mile distant therefrom. No direct evidence indicating that defendants were in possession of the truck at the scene of the crime was adduced at trial.
The trial judge concluded a careful summary of the testimony with factual findings that: (1) there was a breaking and entering of the plant with intent to commit larceny therein; (2) property belonging to the plant owner was on the truck; (3) defendants were in possession of the truck; (4) from defendants' possession of stolen property could be inferred the further fact that the possessors were the thieves. In support of finding (4) the trial court cited authority (People v. May, 199 Mich. 574; People v. Quigley, 217 Mich. 213; and People v. Tutha, 276 Mich. 387) for the proposition that possession of stolen property permits an inference that the possessor is the thief. The trial court concluded:
"Taking into account the total evidence including all reasonable and permissive inferences to be drawn from established facts, I find defendants and each of them guilty as charged."
The difficulty lies in findings (3) and (4) above. There was ample circumstantial evidence to warrant conviction had the trial judge indicated that he found the evidence sufficiently persuasive in logic to compel that determination. As stated, however, his findings demonstrate that his determination was based upon an erroneous application of the rule permitting the inference of guilt to be drawn from a defendant's possession of stolen property. In the instant case the factual premise (that defendants were in possession of stolen property) basic to such logical inference was not the product of direct evidence but rather of another inference, viz., that since defendants had borrowed the truck a day or two earlier and were found near the plant they were the parties who were in possession of the truck when it was loaded with stolen goods shortly before the untimely arrival of the police. The leap from inference to inference is not consistent with good logic, and is irreconcilable with the requirement of proof of guilt beyond a reasonable doubt. People v. Petro, 342 Mich. 299 (1955).
Reversed and new trial ordered.