holding that there was sufficient evidence to convict the defendants of larceny from a building because the defendants were found in possession of the stolen tires shortly after the offense must have been committed and no one else had access to the car where the stolen tires were foundSummary of this case from People v. Allen
Docket No. 54, Calendar No. 49,599.
Decided December 4, 1962. Certiorari denied by the supreme court of the United States May 13, 1963.
Appeal from Recorder's Court of Detroit; Murphy (George A.), J. Submitted June 14, 1962. (Docket No. 54, Calendar No. 49,599.) Decided December 4, 1962. Certiorari denied by the supreme court of the United States May 13, 1963.
Edward John Williams and Evelyn Walker were convicted of larceny from a building. Affirmed.
Frank J. Kelley, Attorney General, Eugene Krasicky, Solicitor General, Samuel H. Olsen, Prosecuting Attorney, Samuel J. Torina, Assistant Prosecuting Attorney, for the people.
Albert A. Goldfarb, for defendants.
Defendants were convicted of larceny in a building. The parties agree that the applicable statute is CL 1948, § 750.360 (Stat Ann 1954 Rev § 28.592), which reads:
"Any person who shall commit the crime of larceny by stealing in any dwelling house, house trailer, office, store, gasoline service station, shop, warehouse, mill, factory, hotel, school, barn, granary, ship, boat, vessel, church, house of worship, locker room or any building used by the public shall be guilty of a felony."
The structure in which the people allege the larceny occurred is described as being 7 feet, 7 inches high, 15 feet, 1 inch long, and 33 inches wide. According to the owner's testimony it is constructed of metal, attached to the land, bolted down to cement, entirely enclosed, a covered shed, it has overlapping doors with a steel bar coming down through the outside door and a padlock attached through the steel rod. In it tires were stored and displayed in 2 tiers, with a capacity for 100 tires. It had been constructed on the premises and located about 38 feet from the main gasoline service station building located on the same premises. On the night in question the doors had been closed and locked, but afterwards the mentioned rod on the door had been sawed apart, the lock removed, the door opened, and 5 tires taken.
Is the structure in which the larceny was committed a building within the meaning of the quoted statute? Defendants say it is merely a tire rack. They suggest that it comes within the meaning of CL 1948, § 750.114 (Stat Ann § 28.309), making it a misdemeanor to break and enter, with intent to commit the crime of larceny, "any outside show case or other outside enclosed counter used for the display of goods." We think the structure here involved is considerably more than a show case or counter in the ordinarily accepted sense of the terms.
Defendants cite Rouse v. Catskill N.Y. Steamboat Co., 59 Hun (66 SC NY) 80 (13 N.Y.S 126), in which it was held that a vessel is not a building within the meaning of an ordinance prohibiting the sale of liquor in a building; Town of Union v. Ziller, 151 Miss. 467 ( 118 So. 293, 60 ALR 1155), in which a metal billboard was held not to be a building under an ordinance prohibiting metal buildings; Truesdell v. Gay, 79 Mass. 311, in which a wall around 3 sides of the stack of an iron furnace to protect the stack from earth sliding down a hill behind it is not a building within the lien law, to permit a lien to attach to it; Whiteley v. Mayor and City Council of Baltimore, 113 Md. 541 ( 77 A 882), in which it was held that, in a street opening proceeding in which it was required that a map be filed showing lots and buildings to be taken, it was not necessary to show a portable schoolhouse thereon because it was intended to be there only temporarily and was not a building to be taken or destroyed for the street opening; Bailey v. Ohio, 26 Ohio Cir Ct 375, in which a chicken coop 37-3/4 inches by 38 inches by 2 feet high, which was moved from place to place and not attached to the ground, was not a building within the meaning of a statute defining burglary as breaking and entering any building, because lacking any permanency of location as a structure. These are of scant assistance to defendants here with respect to the structure of the size, permanent character and type of construction and attachment to the realty here involved.
In Truesdell the following was said:
"The word `building' cannot be held to include every species of erection on land, such as fences, gates or other like structures. Taken in its broadest sense, it can mean only an erection intended for use and occupation as a habitation or for some purpose of trade, manufacture, ornament or use, constituting a fabric or edifice, such as a house, a store, a church, a shed."
This structure comes well within this definition of a building.
"1. All stationary structures within State, no matter of what substance they may be constructed, are within term `building' as used in burglary statute, so long as they are designed for use in position in which they are fixed."
"2. Although a telephone booth may be only a closet by dictionary definition when within another structure, it is a `building' within purview of burglary statute when set apart."
"4. Under statute defining burglary as entry with felonious intent into any building, defendant who was prying cover off coin box in outside telephone booth was guilty of `burglary.'"
By the same token, whatever term might be applicable to the structure here involved if it were inside another building, set apart and outside, as it was, it was a building within the meaning of the applicable statute.
Was evidence taken by officers from defendants' car (5 automobile tires) unlawfully seized and, therefore, should it have been suppressed as such upon defendants' motion to suppress filed and heard by the court in advance of trial?
At the preliminary examination the arresting officer testified, in substance, that at about 3:30 a.m., while assigned to scout a certain area, he received radio instructions to go to a specific location because of a report of the presence there of a suspicious looking man; that the officer went as directed and saw a citizen on the sidewalk who told him that he had seen a suspicious man rolling a new, packaged or wrapped tire on the street toward an automobile still parked nearby and that the man had placed the tire either in the trunk or under the rear end of the car; that he, the officer, thought this might mean that the tire had been stolen because at that hour of the night no tire sales place was open in that neighborhood in which a new tire might be purchased; that, in consequence, he shined a flashlight into the car and found the 2 defendants hiding in the front of the car, lying in a prone position; that he thought the tire might be in the car; that he then asked for the key to the trunk, but defendants said they had not had one for years; that the officer asked the male defendant what he had done with the tire he had been rolling down the street and that he denied having it; that he then arrested defendants and searched them; that in the male defendant's pocket he found a pair of pliers, a paring knife, tan gloves, and a hacksaw; that after taking defendants and the car a report came about the 5 tires having been stolen from the structure above described; that thereafter the officers gained access to the trunk through the rear seat and found 5 new tires later identified by the owner as those taken from said structure, the tires having marked thereon the name and location of another gasoline station in which he was a partner.
We think the above was sufficient to give rise to probable cause for the officers to believe that a crime had been committed by defendants and warranted the arrest and search of defendants and subsequent search of the car. A reasonable mind could hardly have concluded otherwise on the basis of such knowledge and information.
Defendants seek to inject into the consideration of this problem testimony later taken on trial, which they urge as refuting the officers' testimony at the examination bearing on that question of probable cause and validity of the search and seizure and, hence, admissibility of the tires into evidence. This is not permissible. In People v. Taylor, 341 Mich. 570, and cases cited therein, we have held that the illegality of seizure of evidence, where such illegality is known before trial, must first be raised by a timely motion to suppress the evidence made before trial. Here the facts relating to the alleged illegality of the search and seizure were as well known to defendants at the time made as at time of trial. Timely motion in advance of trial was, therefore, required. It was so made, but denied before trial on the basis of the testimony adduced at the examination. In People v. Zeigler, 358 Mich. 355, we said:
"What about probable cause in the case at bar? The only showing before the circuit court on the motion to suppress consisted of the testimony presented at the preliminary examination. Amplifying testimony later taken at trial cannot be considered. We are limited to that taken at the examination. People v. Miller, supra."
In People v. Miller, 245 Mich. 115, the following appears:
"Determination of motions to dismiss a criminal charge against accused and to suppress the evidence obtained by a search of accused's automobile rests upon the showing at the preliminary examination, and therefore testimony later taken on the trial, amplifying the circumstances of the search, may not be considered by the Supreme Court in reviewing denial of the motions." Syllabus 1.
In People v. Willis, 243 Mich. 164, the second syllabus contains the following:
"Where the matter of the search and its legality was gone into before the trial, upon motion to suppress the evidence obtained thereby, and the motion was denied, the matter should not again be gone into on the trial, but the prosecution had a right to offer the liquor in evidence, and the jury were in no way concerned with the manner in which it had been secured, and the same rule applies in trial before the court without a jury."
The trial court did not err in denying motions to suppress evidence.
Finally, defendants say the finding of guilt by the trial judge is contrary to the great weight of the evidence. That voices, of course, a civil case test. The question, properly stated ( People v. Moore, 306 Mich. 29), is whether the evidence was ample to warrant a finding of guilty beyond a reasonable doubt of the crime charged. In Gablick v. People, 40 Mich. 292, this Court said:
"Possession of stolen property, if immediately subsequent to the larceny, may sometimes be almost conclusive of guilt (see [ People v. Walker, 306 Mich. 156]); but the presumption weakens with the time that has elapsed, and may scarcely arise at all if others besides the accused have had equal access with himself to the place where it is discovered."
Here defendants had possession shortly after the offense must have been committed, minutes after a man was seen rolling a new, wrapped tire to the car. It does not appear that anyone other than defendants had had access to the car before the officers took it into possession nor thereafter until they gained access, through taking apart the back seat, into the trunk and found the 5 tires, identified by the owner as stolen from his place of business. The fact that defendants were hiding in the car, that they denied having had a key to the trunk though the 5 freshly stolen tires were soon thereafter found therein, that one defendant had a hacksaw in his pocket and that the bracket to which the padlock was attached had been sawed apart, testimony as to all of this adds up, it seems to us, to enough to support a finding of guilt beyond a reasonable doubt.
CARR, C.J., and KELLY, SOURIS, and OTIS M. SMITH, JJ., concurred with DETHMERS, J.
BLACK and KAVANAGH, JJ., concurred in result.
ADAMS, J., did not sit.