Opinion
Docket No. 1,460.
Decided April 25, 1967.
Appeal from Muskegon; Beers (Henry L.), J. Submitted Division 3 January 5, 1967, at Grand Rapids. (Docket No. 1,460.) Decided April 25, 1967.
Arthur Rawls, Jr., and another were convicted of breaking and entering a store building in the nighttime with intent to commit larceny. Arthur Rawls, Jr., appeals. Reversed.
Fank J. Kelley, Attorney General, Robert A. Derengoski, Soliciter General, and Paul M. Ladas, Prosecuting Attorney, for the people. Milton R. Henry, for defendant.
Defendant and another were tried May 21, 1964, before the trial court sitting without a jury on a charge of breaking and entering in the nighttime of a store building with intent to commit a larceny in violation of CL 1948, § 750.110 (Stat Ann 1962 Rev § 28.305). At the close of plaintiff's case, defendant moved for dismissal on the basis plaintiff had failed to prove a prima facie case. The motion was denied, but defendant renewed the motion to dismiss at the close of proofs and it was again denied. The court found both defendants guilty and they were both sentenced to prison. Defendant filed timely motion for new trial as well as a claim of appeal and defendant was released on bail. October 19, 1965, the motion for new trial was denied, defendant's bond was canceled and he was remanded to the corrections commission to begin serving the sentence previously imposed June 15, 1964. Then defendant began to process the appeal commenced June 17, 1964. No question having been raised by appellee as to the regularity of this procedure, we do not consider it here.
On appeal, defendant contends the waiver of jury trial was invalid; that the proofs at the close of plaintiff's case were so inadequate that it was error for the trial court to deny his motion to dismiss; and that his motion to dismiss at the close of proofs should have been granted.
Before trial and in open court, defendant and his codefendant signed a waiver of jury trial entitled in the court and cause and in the following form:
"To the Honorable Circuit Court for the County of Muskegon.
We, Robert Smith and Arthur Rawls, the respondents in the above entitled cause, hereby voluntarily waive and relinquish my right to a trial by jury and elect to be tried by a judge of the court in which said cause may be pending. I fully understand that under the laws of the State of Michigan, I have a constitutional right to a trial by jury. Dated at Muskegon, Michigan this 21st day of May 1964.
The term "respondents" used in this form should be "defendants". GCR 1963, 201.1 and 785.1 require the designation of parties to be either plaintiff or defendant. — REPORTER.
BOBBY SMITH Robert Smith ARTHUR RAWLS Arthur Rawls Respondents"
The procedure and form of waiver follow the statute, CL 1948, § 763.3 (Stat Ann 1954 Rev § 28.856). The statute was held constitutional and its prescribed procedure proper in People v. Henderson (1929), 246 Mich. 481. (PA 1927, No 175, chap 3, § 3, involved in Henderson is the same statute here involved.) We find no error.
At the close of plaintiff's case, the breaking and entering was established beyond peradventure. The defendant was seen on the night of the offense with codefendant in the car used to transport a safe taken from the place broken into. The next day, at the request of codefendant, one McCain drove defendant and codefendant in his car to the place where the safe was later found, and on the way codefendant said he had some money to pick up. The following day police found tools that were used on the safe in McCain's car, and he testified he had not put them there. That night defendant and codefendant left for Chicago. This chain of implicating circumstances, unexplained at the close of plaintiff's case, was evidence which would support a finding of guilt beyond a reasonable doubt, and the trial court was not in error in denying defendant's motion to dismiss at the close of plaintiff's case.
At the close of proofs, the foregoing circumstances were explained by defendant and codefendant, and their testimony was somewhat corroborated by defendant's mother and codefendant's mother. While we recognize that in such instances, guilt or innocence is determined on the basis of credibility and the trier of the fact is in a better position to judge credibility than we are (see People v. Franczyk, 315 Mich. 384), when this entire record is considered with the fact that defendant returned voluntarily from Chicago a few days after the offense at the request of his mother, and codefendant returned voluntarily from Mississippi somewhat later on a similar request, we are unable to say the record supports a finding of guilt beyond a reasonable doubt. Defendant's motion to dismiss at close of proofs should have been granted.
Reversed.
FITZGERALD, P.J., and T.G. KAVANAGH, J., concurred.