Opinion
Docket No. 31077.
Decided August 21, 1979. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Walter J. Piszczatowski, Assistant Prosecuting Attorney, for the people.
Kim R. Fawcett, Assistant State Appellate Defender, for defendant on appeal.
Before: M.F. CAVANAGH, P.J., and BASHARA and ALLEN, JJ.
Arthur Rigsby, Jr., was convicted by a jury of possession of burglar's tools contrary to MCL 750.116; MSA 28.311, in his trial with codefendant Benjamin Harrison Boone. The charge against each defendant was submitted to the jury on theories of both principal and aider and abettor liability. MCL 767.39; MSA 28.979. He was sentenced to imprisonment for a term of 2 to 10 years, and appeals of right.
The trial court instructed the jury regarding the elements of the principal offense, possession of burglar's tools, and the elements requisite to liability as an aider and abettor. The jury was instructed that the crime charged must have been committed by one of the defendants; that one or both of the defendants must have performed acts or given encouragement which aided or assisted the commission of the crime; and that "at least one of the defendants must have intended the commission of the crime charged at the time of giving the aid or encouragement".
The defendant contends that the instructions of the trial court were deficient with respect to the crucial element of criminal intent. He maintains that the instruction allowed the jury to convict him as an aider and abettor without finding that he ever possessed any culpable intent. We agree.
The offense of possession of burglar's tools is a specific intent crime, for conviction of which it must be shown that the defendant intended to employ the tools for the illegal purpose. People v Dorrington, 221 Mich. 571, 574; 191 N.W. 831 (1923). The aider and abettor of a specific intent crime, if not himself possessed of the requisite specific intent, must be shown to have rendered his aid and assistance to the principal actor with the knowledge that the principal himself possessed the intent necessary to be guilty of the crime. People v Gordon, 60 Mich. App. 412; 231 N.W.2d 409 (1975), lv den 397 Mich. 884 (1976), People v Poplar, 20 Mich. App. 132; 173 N.W.2d 732 (1969). While the power of the appellate court to review jury instructions in the absence of objection of counsel is discretionary and is to be used "sparingly", Hunt v Deming, 375 Mich. 581; 134 N.W.2d 662 (1965), we are presuaded that, in light of the insufficient evidence in support of the defendant's liability as a principal offender and the circumstantial proof of his intent or knowledge as an aider and abettor, the instruction that "one" of the parties should have intended the crime was insufficient and prejudicial. As this error in jury instructions relates to a basic and controlling issue, this Court will intervene in the absence of an objection in the trial court. People v MacPherson, 323 Mich. 438; 35 N.W.2d 376 (1949).
The other errors assigned by the defendant warrant no discussion.
Reversed and remanded.
I respectfully dissent. My examination of the transcript convinces me that the trial judge adequately instructed the jury as to the question of criminal intent. The following appears to be ample indication of the court's charge to the jury. After reading the statute, the judge stated:
"To establish this charge the People must prove each of the following elements beyond a reasonable doubt: First, that the implement or device alleged is a burglar tool or tools. The term `burglar tools' is an abbreviated definition for a tool or implement adapted and designed for breaking and entering. `Adapted and designed' means that the tools are not only capable of being used for breaking and entering, but also designed or expressly contrived to be employed for such purpose. Second, that the defendant or defendants knowingly possessed them. Third, at the time that they were possessed, the defendant knew that they were adapted and designed for the purpose of breaking and entering. Fourth, that at the time he possessed them the defendant specifically intended to use them for breaking and entering a building, vault or other depository. Those are the things that the prosecution must prove to you beyond a reasonable doubt.
"Now, your possible verdicts in this case, members of the jury — and as I have indicated, each of the defendants is entitled to separate consideration of his case. So your possible verdicts then, members of the jury, will be two. Whatever they be, you will have to come in with two verdicts. One as far as Mr. Boone is concerned and one as far as Mr. Rigsby is concerned."
Based on the foregoing, I would affirm defendant's conviction.