Opinion
Docket No. 7,885.
Decided July 1, 1970.
Appeal from Macomb, Walter P. Cynar, J. Submitted Division 2 June 9, 1970, at Lansing. (Docket No. 7,885.) Decided July 1, 1970.
James Lawson Stewart was convicted of breaking and entering. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Thaddeus F. Hamera, Chief Appellate Lawyer, and Don L. Milbourn, Assistant Prosecuting Attorney, for the people.
Leonard E. Reinowski, Jr., for defendant on appeal.
Defendant was convicted by a jury of breaking and entering with intent to commit a larceny therein and was sentenced to eight to ten years' imprisonment.
MCLA § 750.110 (Stat Ann 1962 Rev § 28.305).
Defendant was arrested on a charge unrelated to the present offense and placed in the Macomb County Jail. While confined therein, he was visited by two Clinton Township police officers who wished to interrogate defendant concerning several breakings and enterings which had occurred. After being advised of his constitutional rights, the defendant confessed to the crime with which he is charged herein. This oral confession was written down by one police officer and signed by the defendant, after reading it through and penciling out one word which he disapproved.
Prior to the trial, a Walker hearing was held to determine the voluntariness of defendant's confession. The defendant alleged at the hearing that the confession was not voluntary because he was under the influence of certain medication when the confession was offered, and, therefore, his mental condition was such that he did not know what he was doing nor could he remember making the confession. The two police officers testified that defendant was nervous during the interrogation, but that he otherwise appeared normal. See People v. Daniels (1966), 2 Mich. App. 395. Subsequent to the confession, but prior to trial, defendant was examined by a psychiatrist who determined that defendant was not mentally ill and to whom defendant related essentially the same story which is contained in the signed confession. At the close of the testimony, the judge ruled that the defendant was lucid and normal when he made the confession and, thus, held that the voluntary confession was admissible.
People v. Walker (On Rehearing, 1965), 374 Mich. 331.
Defendant's first assignment of error on this appeal is that the court erred by admitting the confession into evidence. The standard of review on the question of the finding of fact, after a Walker-type hearing on the voluntariness of the confession, is that this Court will not reverse unless upon a reading of the whole record we conclude that the lower court finding was clearly erroneous. GCR 1963, 517.1; People v. Townsend (1969), 17 Mich. App. 267; People v. Walker (1967), 6 Mich. App. 600. In making a determination of whether these findings were clearly erroneous, this Court must make an independent examination of the record. People v. Pallister (1968), 14 Mich. App. 139. See People v. Hamilton (1960), 359 Mich. 410, 418; People v. Summers (1968), 15 Mich. App. 346, 355.
In the case at bar, the record discloses that the two police officers who interrogated defendant, the deputy sheriff at the jail where he was confined, and the psychiatrist all believed defendant to be normal. In addition, there was little evidence beyond defendant's own testimony that at the time when he made the confession he was under the influence of anything stronger than a mild tranquilizer, prescribed by the doctor treating prisoners at the jail. With these facts before him, the trial judge concluded that the proofs did not support defendant's contention that he was not normal and lucid when he confessed. Upon a review of the whole record we cannot say that this determination was clearly erroneous.
Defendant's second assignment of error is that the trial judge misled and confused the jury by referring in several places in his instructions to "breaking and entering with intent to commit a larceny or a felony therein", when in fact the defendant was only charged with "breaking and entering with intent to commit a larceny therein" on the information. We find this allegation of error to be without merit. The applicable statute, MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305), includes the words "any felony", which conceivably led the judge to make such a reference. The Supreme Court of this state has reiterated on numerous occasions that when an attack is made on a court's jury charge, the whole charge must be considered and construed in context, and that its correctness cannot be tested by examining particular parts. E.g., People v. Haggai (1952), 332 Mich. 467; People v. Loudenslager (1950), 327 Mich. 718. See, also, People v. Goldsby (1969), 17 Mich. App. 16; People v. Gardner (1968), 13 Mich. App. 16.
A reading of the record discloses that the judge in several places in his charge correctly referred to the crime as "breaking and entering with intent to commit a larceny therein" and also had the clerk of the court ask the jury after their verdict whether they found the defendant guilty of "breaking and entering with intent to commit a larceny". In addition, the only proofs brought out at trial concerned the crime of larceny and this was the only specific crime, besides breaking and entering, referred to and defined by the judge below in his instructions. Therefore, we conclude that references to the words "or a felony" were a mere surplusage and we fail to see how the defendant's rights were prejudiced thereby.
For the reasons stated above, the verdict of the jury below should be, and is, affirmed.