Summary
In People v Tiszae, 23 Mich. App. 114; 178 N.W.2d 138 (1970), this Court found that the corpus delicti had been sufficiently established where the defendants were arrested in a store at 3:25 a.m.
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Docket No. 7,438.
Decided March 31, 1970.
Appeal from Wayne, Joseph A. Moynihan, J. Submitted Division 1 February 24, 1970, at Grand Rapids. (Docket No. 7,438.) Decided March 31, 1970.
Thomas Allen Tiszae and David Wendler were convicted of breaking and entering with intent to commit a larceny. Defendants appeal. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief Appellate Counsel, and Patricia J. Pernick, Assistant Prosecuting Attorney, for the people.
Frederick G. Buesser III, for defendant on appeal.
Before: R.B. BURNS, P.J., and HOLBROOK and T.M. BURNS, JJ.
This case is submitted on the people's motion to affirm pursuant to GCR 1963, 817.5 (3). Defendants were convicted by a jury of breaking and entering a business place with intent to commit a larceny (MCLA § 750.110 [Stat Ann 1970 Cum Supp § 28.305]) on December 16, 1968. Defendants were sentenced to 3 to 10 years in the State prison.
On appeal, defendants assert that there was insufficient proof to establish the corpus delicti of the crime charged and that the trial judge should have instructed the jury as to the lesser offenses of entering without breaking and entering without breaking and without permission. See MCLA §§ 750.111; 750.115 (Stat Ann 1970 Cum Supp § 28.306; Stat Ann 1962 Rev § 28.310).
After a careful review of the record, we believe that the evidence is more than sufficient to substantiate the corpus delicti of the crime charged. Defendants were arrested by officers in the store at 3:25 a.m. with guns in their hands and merchandise scattered about the gun department. Moreover, a window had been broken since the time that the store had closed. We deem the case of People v. Lambo (1967), 8 Mich. App. 320, controlling with respect to the facts of the instant case.
Moreover, there were sufficient facts to convict each defendant of the crime individually, MCLA § 767.39 (Stat Ann 1954 Rev § 28.979).
Finally, we find that there was no evidence to substantiate an instruction by the trial judge on the lesser included offenses. See People v. Carabell (1968), 11 Mich. App. 519. That there was a "breaking" cannot be disputed. People v. White (1908), 153 Mich. 617, 621. Motion to affirm is granted.