People v. Lee

Full title: PEOPLE v. LEE

Court: Michigan Court of Appeals

Date published: Nov 27, 1968

165 N.W.2d 518 (Mich. Ct. App. 1968)

165 N.W.2d 518

Opinion

Docket No. 4,504.

Decided November 27, 1968.

Appeal from Bay, Dardas (Leon R.), J. Submitted Division 3 November 12, 1968, at Grand Rapids. (Docket No. 4,504.) Decided November 27, 1968.

Ernest Lee was convicted of breaking and entering with intent to commit larceny. Defendant appeals. Reversed and remanded for further proceedings.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Martin B. Legatz, Prosecuting Attorney, for the people.

James G. Orford, for defendant.

PER CURIAM.

Defendant was convicted by a jury of the crime of breaking and entering with intent to commit larceny.¹ The issue raised for review is whether the people proved the requisite criminal intent for the crime of larceny.

1 CL 1948, § 750.110, as amended by PA 1964, No 133 (Stat Ann 1968 Cum Supp § 28.305).

The record discloses sufficient evidence from which the jury could find the defendant guilty of breaking and entering beyond a reasonable doubt. However, the record contains no direct and circumstantial evidence, in addition to that relating to the breaking and entering, from which defendant's intent to commit the crime of larceny could be found beyond a reasonable doubt. See People v. Boyce (1946), 314 Mich. 608; People v. Westerberg (1936), 274 Mich. 647; and People v. Curley (1894), 99 Mich. 238.

A proper disposition of this case is to set aside the sentence and to remand the defendant to the trial court with instructions to sentence the defendant for the crime of breaking and entering,² a lesser includable offense. People v. Sharp (1968), 9 Mich. App. 34.

2 CL 1948, § 750.115 (Stat Ann 1962 Rev § 28.310).

Remanded for proceedings consistent with this opinion.

HOLBROOK, P.J., and T.G. KAVANAGH and McINTYRE, JJ., concurred.