Opinion
Docket No. 74079.
Decided July 9, 1984.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Janice M. Joyce Bartee, Assistant Prosecuting Attorney, for the people.
Douglas Hamel and Frank Singer (of Counsel), for defendant on appeal.
Before: DANHOF, C.J., and HOOD and SHEPHERD, JJ.
Defendant was originally charged with breaking and entering an occupied dwelling with the intent to commit larceny therein, MCL 750.110; MSA 28.305. Defendant was convicted after a bench trial of receiving and concealing stolen property of a value greater than $100, MCL 750.535; MSA 28.803. He was sentenced to from 18 months to 5 years imprisonment and presently appeals as of right.
Defendant argues on appeal that his conviction must be reversed because he was convicted of an offense not charged within the information. We disagree.
A trial court has no authority to convict a defendant of an offense not specifically charged unless the defendant has had adequate notice. People v Adams, 389 Mich. 222; 205 N.W.2d 415; 59 ALR3d 1288 (1973); DeJonge v Oregon, 299 U.S. 353; 57 S Ct 255; 81 L Ed 278 (1937). The notice is adequate if the latter charge is a lesser included offense of the original charge. People v Ora Jones, 395 Mich. 379, 388; 236 N.W.2d 461 (1975). A trial court may not instruct a jury on a cognate lesser included offense unless the language of the charging document gives the defendant notice that he could face a lesser offense charge. People v Chamblis, 395 Mich. 408, 418; 236 N.W.2d 473 (1975). Although defendant relies upon People v Matuja, 77 Mich. App. 291; 258 N.W.2d 79 (1977), for the proposition that receiving and concealing stolen property is not a cognate lesser included offense of breaking and entering with intent to commit larceny, Matuja was sub silentio overruled by People v Kamin, 405 Mich. 482, 496; 275 N.W.2d 777 (1979): "Receiving and concealing, a cognate lesser included offense of breaking and entering * * *."
We hold that defendant had adequate notice that he might have to defend against a charge of receiving and concealing stolen property of a value greater than $100. The testimony at trial established that defendant had possession of items which had been stolen from the complainant's home. The complainant testified that she had not given anyone permission to take the items out of the house. In summary:
"If the evidence shows that the defendant committed a crime of lesser degree than that with which he was charged, he should be found guilty of that offense. He should not escape punishment for lack of evidence of an element not required to convict of the lesser offense. Nor should he be convicted of a higher offense because the jury recognizes that he did commit some offense. Society has a legitimate interest in the jury's freedom to act according to the evidence." Chamblis, supra, p 426.
The same is true in a bench trial. People v Cazal, 412 Mich. 680; 316 N.W.2d 705 (1982).
Defendant also argues that the case should be remanded because the trial judge failed to make sufficient findings of fact. We have reviewed the record and the trial judge's findings of fact and conclusions of law and find them to be adequate under GCR 1963, 517.1.
Affirmed.
SHEPHERD, J., concurred.
In People v Price, 126 Mich. App. 647; 337 N.W.2d 614 (1983), lv den 417 Mich. 1100.40 (1983), I was a member of a panel which decided that receiving and concealing stolen property was not a cognate lesser included offense of breaking and entering with intent to commit larceny therein. I now find that I erred in that conclusion by relying upon People v Matuja, 77 Mich. App. 291, 295; 258 N.W.2d 79 (1977). Although the Supreme Court did not indicate its reasoning, it has explicitly stated that receiving and concealing stolen property may be a cognate lesser included offense of breaking and entering. People v Kamin, 405 Mich. 482, 496; 275 N.W.2d 777 (1979). Therefore, in those cases in which the facts would support a lesser included offense of receiving and concealing stolen property although the defendant was charged with breaking and entering, a trial court does not err by amending the information to add the receiving and concealing count.