Docket No. 8364.
Decided December 4, 1970.
Appeal from Recorder's Court of Detroit, Robert E. DeMascio, J. Submitted Division 1 October 27, 1970, at Grand Rapids. (Docket No. 8364.) Decided December 4, 1970.
Richard Lee Crook was convicted of armed robbery. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Thomas R. Lewis, Assistant Prosecuting Attorney, for the people.
Raymond L. Miller, for defendant on appeal.
Before: FITZGERALD, P.J., and HOLBROOK and T.M. BURNS, JJ.
Richard Crook was tried by a jury and convicted on the charge of robbery armed, MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797). On September 30, 1969, he was sentenced to a term of 3 to 20 years imprisonment, by Judge Robert E. DeMascio of the recorder's court. A timely petition for the appointment of appellate counsel and subsequent claim of appeal are grounded on two allegations of error. First, it is contended that the lower court erred in its instructions to the jury relative to the elements of the crime of robbery armed. Second, it is contended that the lower court erred in commenting on defendant's failure to take the stand in his own defense. The people have filed a motion to affirm the conviction and sentence.
Defendant quotes from the trial court's instructions to the jury at length in an effort to demonstrate that the court erred in failing to instruct on the element that defendant was armed with a weapon. Generally this Court will not review an alleged error in the lower court's instructions to the jury, absent a timely objection being raised in the lower court. People v. Fortuna (1968), 13 Mich. App. 245. However, the failure to charge the jury on an essential ingredient of the crime is appealable error even without proper objection. People v. Gardner (1968), 13 Mich. App. 16. In the present case it is essential that the jury find that the defendant was armed with a dangerous weapon at the time he committed the felonious taking. Clearly this is an essential element of the crime of robbery armed. It is equally clear, upon review of the trial transcript, that the lower court did properly charge the jury on this element.
"Now, when I said to you certain elements make up the offense * * * the information contains certain elements. For example, it states an assault — the element of an assault, and then it indicates that there was used in this instance a dangerous weapon, and that the defendant was armed with that weapon, namely, a knife with a broken off point, but it wouldn't matter if the point was broken off or not.
"Dangerous weapon — to-wit: the knife, and that he did felonious rob, steal and take from her person or in her presence a certain sum of money."
This issue is without merit.
The second issue is also grounded on the lower court's charge to the jury. The issue is grounded on the following instruction:
"Now, I'm confident that the jury recognizes why this is so. There are many reasons why a defendant may not choose to take the stand. Most common among them is the personality of many individuals who find it very difficult to express themselves properly. They find it very embarrassing, for example, and many times these decisions aren't even made by the defendant. They are made by the defendant and his lawyer together.
"So, for the many multitude of reasons why one elects not to choose to testify or take the stand, because there are so many reasons, the law does not permit the jury to indulge in any kind of presumption because of that fact."
Defendant contends that the foregoing charge to the jury was prejudicial, and is in violation of the Fifth Amendment. However, this Court had previously held in People v. Waters (1969), 16 Mich. App. 33, that if a trial judge on his own motion instructed the jury to the effect that no consideration should be given to defendant's failure to take the stand in his own defense, it is not reversible error. Motion to affirm is granted.