Opinion
Docket No. 7,834.
Decided July 31, 1970.
Appeal from Midland, James R. Rood, J. Submitted Division 3 June 18, 1970, at Lansing. (Docket No. 7,834.) Decided July 31, 1970.
Rodney Turrell was convicted of breaking and entering. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward G. Durance, Prosecuting Attorney, and Robert J. Rhead, Assistant Prosecuting Attorney, for the people.
Wilson Stone, for defendant.
Before: FITZGERALD, P.J., and R.B. BURNS and DANHOF, JJ.
Defendant Rodney Turrell was charged with the crime of breaking and entering a building with the intent to commit a larceny therein on February 12, 1968. The jury found defendant guilty as charged.
CL 1948, § 750.110 (Stat Ann 1970 Cum Supp § 28.305).
On appeal, defendant requests an answer to the following question:
"Was it error for the trial court to state to the jury, in answer to an objection by defense counsel, that `there is no doubt in my mind that a breaking and entering took place; the only question in my mind is, was this man involved in it'?"
The people, in every criminal prosecution, must prove beyond a reasonable doubt that the crime charged was committed, and that the person or persons on trial committed it. People v. Pratt (1930), 251 Mich. 243; People v. MacPherson (1949), 323 Mich. 438, 452.
A trial judge may properly call the attention of the jury to the fact that the commission of a crime is undisputed, but he cannot sua sponte take the issue finally and irrevocably from the jury deliberation. People v. Pratt, supra; People v. Wojnicz (1968), 12 Mich. App. 423, 425.
The comment of the court in the present case did effectively remove the issue of breaking and entering from jury consideration. The Pratt and Wojnicz cases compel this Court to conclude that error was committed by the trial judge's statement, "There is no doubt in my mind that a breaking and entering took place".
This does not mean, however, that the case must be reversed. Defense counsel, in requesting instructions, made the following admission. "My client and I will stipulate that there was in fact a breaking and entering and that the only issue remaining is, did he, in fact, do that." We must assume that this statement was made knowingly and voluntarily. It is certainly clear and unambiguous. The court may inform the jury that a fact has been established if the defendant admits its occurrence. People v. Pratt, supra; People v. Hamer (1969), 19 Mich. App. 318, 319.
No specific request was made concerning included offenses and defendant stated that except for failure to produce a witness, he was satisfied with the instructions. Objections to trial instructions must be raised when they are given or the objections are waived. People v. Keys (1968), 9 Mich. App. 482; People v. Brown (1968), 13 Mich. App. 222; People v. Tubbs (1970), 22 Mich. App. 549.
Affirmed.