Opinion
Docket No. 57669.
Decided December 31, 1976.
On application by the people for leave to appeal the Supreme Court, in lieu of leave to appeal, reversed the decision of the Court of Appeals and reinstated the convictions. Rehearing denied 400 Mich. 951.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Robert A. Hess, Prosecuting Attorney, for the people.
David R. Sabin for defendants.
A jury convicted these defendants of arson. The Court of Appeals (Judge HOLBROOK dissenting) reversed the convictions on the ground that the evidence was insufficient to connect the defendants to the crime. We disagree.
MCLA 750.73; MSA 28.268, MCLA 750.74; MSA 28.269.
People v Smock, 63 Mich. App. 610; 234 N.W.2d 728 (1975).
The record discloses that a caravan of 20 to 30 automobiles carrying a total of at least 40 persons forcibly trespassed upon a school construction site in Roscommon County. In the space of approximately 15 minutes, members of this caravan started six separate fires, slashed the fuel lines and punctured the fuel tanks of heavy construction vehicles, punctured fuel oil drums, started fuel oil heaters and aimed their flames at the tires of the construction vehicles, and burned the contents of construction office filing cabinets and desks. In addition, fuel oil was poured over stacks of lumber, and crumpled blueprint paper was stuffed underneath (matches were later discovered nearby). The caravan then quickly left the scene, splitting up and dispersing in opposite directions. On these facts, the jury could reasonably infer that the members of this caravan acted in concert according to a preconceived plan that had arson as its primary objective.
All five of these defendants were apprehended at the scene. Witnesses identified Smock, Griswold, Sorenson and Parson as the occupants of a blue Plymouth station wagon that was near the head of the caravan as it approached the construction site. As the caravan reached the site, this station wagon pulled in front of a car full of construction employees who were attempting to leave, and prevented them from moving. Smock and others then got out and stood around the employees' car. Later, Smock returned to the station wagon and rode into the site itself with Parson, Griswold and Sorenson. Griswold's fingerprints were discovered on a beer can found inside the site near some buildings that had been burned and some telephone wires that had been cut. Parson and Sorenson smelled of fuel oil when they were booked by the police. Smith was identified as the driver of a beige Chrysler which was also near the head of the caravan as it approached the construction site. He got out of his car, forcibly prevented an employee from locking a cable that would have barred entrance to the site and then directed the caravan around the Plymouth station wagon and the employees' car and into the construction site. On these facts, the jury could reasonably infer that each of these defendants were voluntary members of the caravan and were aware of its objective.
In the circumstances of this case, nothing more is necessary to "connect" these defendants to the crime. By voluntarily choosing to join a group that was intent on committing the crime of arson, these defendants took action which supported, encouraged and incited its commission. By so joining, they contributed to the psychological underpinnings that give strength to a "mob" through the device of mutual reassurance. They also contributed to the effect of a mob on those who oppose it. In this case, the few employees who were present when the caravan arrived indicated that they felt helpless in the face of so large a group. As we said in People v Palmer, 392 Mich. 370, 378; 220 N.W.2d 393 (1974):
See MCLA 750.71; MSA 28.266.
"The amount of advice, aid or encouragement is not material if it had the effect of inducing the commission of the crime."
The jury in this case could conclude that the conduct and actions of each of these defendants had the "effect of inducing the commission of the crime".
This is not a case of "guilt by association" or "mere presence at the scene". These defendants chose to cast their lot with others who were bent on arson and by doing so they lent active support to the criminal enterprise. The mere fact that a large number of people was involved in this undertaking cannot shield these defendants. As stated by Judge HOLBROOK in his dissent, "If the theory of the majority were true, then criminals could truly find safety in numbers".
People v Smock, supra, 627.
The jurors in this case believed the evidence presented and determined that these defendants were guilty as charged. That was their right, and we reaffirm it today.
See People v Fuller, 395 Mich. 451; 236 N.W.2d 58 (1975).
In lieu of leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the Court of Appeals and reinstate the defendants' convictions.
KAVANAGH, C.J., and COLEMAN, FITZGERALD, LINDEMER, and RYAN, JJ., concurred.
This arson case presents a jurisprudentially important question of first impression, and we would grant leave.
The trial judge gave an instruction on aiding and abetting over the objection of defense counsel that there was "no evidence from which this jury could conclude that these gentlemen were aiders and abettors". While not directly referring to this instruction, the majority of the Court of Appeals agreed with defense counsel that there was no evidence connecting defendants to arson. The dissenter was more specific stating defendants could be guilty without setting the fires. He argued that they could be convicted as aiders and abettors, because, since there was no doubt an arson was committed, "there must somewhere be a guilty principal".
The issue then is whether under the definition of "burn" in the arson statute there can be an aider and abettor without showing there was a principal. The pertinent statutory language is:
"The term `burn' as used in this chapter shall mean setting fire to, or doing any act which results in the starting of a fire, or aiding, counseling, inducing, persuading or procuring another to do such act or acts." (Emphasis added.) MCLA 750.71; MSA 28.266.
The significant language is "aiding, counseling, inducing, persuading or procuring another to do such act or acts". Is it possible to make sense of any of the verb forms "aiding, counseling, inducing, persuading or procuring" without adding "another to do such act or acts"? In short, would a proper legal instruction have to refer to "aiding etc. another to do such act or acts"?
In addition to the question of statutory construction, Michigan case law strongly suggests that a case cannot be made against a defendant as an aider and abettor without showing there was a guilty principal. See, for example, People v Laine, 31 Mich. App. 271, 272-273; 187 N.W.2d 505 (1971): Although " conviction of the principal is no longer necessary to charge the accessory, the guilt of the principal must be shown"; People v Parks, 57 Mich. App. 738, 744; 226 N.W.2d 710 (1975): "The prosecution was required to prove the existence and guilt of a principal other than the defendant in order to establish the propriety of the charge on aiding and abetting"; People v Tunnacliff, 375 Mich. 298, 301; 134 N.W.2d 682 (1965): "[I]t was the burden of the state to prove the commission of the crime by Mahar [alleged principal] before Tunnacliff could be convicted of aiding in the commission thereof". But see People v Smith, 271 Mich. 553, 561 ; 260 N.W. 911 (1935); People v Mangiapane, 219 Mich. 62, 66; 188 N.W. 401 (1922).
Since it appears that the evidence did not show that a principal was indicated or shown to have set the fires and since it appears that it is an important question of law whether any one can be convicted of aiding and abetting without showing that there was a principal perpetrator of the alleged illegal act, we believe that leave should have been granted in this case.
LEVIN, J., concurred with WILLIAMS, J.