Opinion
Docket No. 2,913.
Decided December 4, 1967.
Appeal from Ingham; Hughes (Sam Street), J. Submitted Division 2 June 6, 1967, at Lansing. (Docket No. 2,913.) Decided December 4, 1967.
Robert A. Needham was convicted of robbery armed. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald L. Reisig, Prosecuting Attorney, and E. Michael Stafford, Assistant Prosecuting Attorney, for the people.
Stiles Fowler ( Louis A. Smith, of counsel), for defendant.
The defendant appeals his 1966 conviction for the offense of robbery armed, entered pursuant to a jury verdict of guilty.
CLS 1961, § 750.529 (Stat Ann 1965 Cum Supp § 28.797).
The conviction arose out of his alleged participation, along with George C. Kenney, in a robbery which took place December 17, 1965, at the Cavalier gasoline station, 3145 south Cedar street, Lansing, Michigan.
At the time the offense charged occurred, Richard F. Powers and James Antes were on the station premises. Powers had previously been an employee of the establishment, and Antes later served in this capacity, although neither had such status on this occasion. The station attendant, Ray Ricketts, had taken leave of the place to obtain refreshment. Ricketts had asked Antes to watch the station in his absence and had given Antes the key to the cash drawer. Powers joined Antes and the two of them waited on customers.
Kenney testified to a prearranged plan which was executed by the defendant and himself. The defendant, who was driving Kenney's car, was to drop Kenney in the rear of the station. If more than two persons were present, defendant would just "pull through the station." If not, he would stop the car and raise the hood, and would, in this manner, draw an attendant to help him open and use a can of windshield de-icer. Kenney stated that the confederates put this plan into effect at the Cavalier gasoline station after going to the defendant's home to get a sawed-off gun. While the defendant diverted Antes' attention and kept him occupied with the windshield de-icer ruse, Kenney ordered Powers, at gunpoint, to open the cash drawer. Since Powers did not have the key, Kenney supplied him with a chisel to force open the drawer, and ordered Powers to put its contents into a pillowcase furnished for this purpose by Kenney.
Kenney had not been tried for the offense at the time of defendant Needham's trial. He had been arraigned and had stood mute at that time. According to his replies on cross-examination, Kenney's trial had been postponed indefinitely for him to have an examination at the veteran's hospital, Ann Arbor, Michigan.
Powers and Kenney were apprehended separately; the pillowcase and its contents were retrieved; and those suspected of the offense were charged with its commission.
The issue on appeal questions whether the defendant could be found guilty under Michigan law of robbery armed, where the person named in the information as having been assaulted and robbed of the property specified therein was neither the owner of the property nor the owner's agent. Otherwise stated, the issue questions whether Powers' "possession" of the named property was sufficient to sustain the charge and conviction.
Defense counsel made several motions to dismiss on this ground at trial and adequately preserved the question for appellate review.
It is settled law in Michigan that the common-law crime of robbery is superseded in this State by statute; therefore, we set forth the statutory offense defined in CLS 1961, § 750.529 (Stat Ann 1965 Cum Supp § 28.797), at this point.
See People v. Powler (1905), 142 Mich. 225; and People v. Calvin (1886), 60 Mich. 113.
"Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years. If an aggravated assault or serious injury is inflicted by any person while committing an armed robbery as defined in this section, the sentence shall be not less than 2 years' imprisonment in the state prison."
According to 4 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 2218, pp 2441, 2442:
"The essential elements of robbery armed under the statute are:
"1. An assault by the defendant upon the complainant; and,
"2. A felonious taking of any property which may be the subject of larceny, from his person or in his presence; and,
"3. That the defendant was armed with a weapon described in the statute."
46 Am Jur, Robbery, § 9, p 143, states that "Obviously goods cannot be taken from `the person of another or in his presence' unless the victim has possession or custody of the goods." Michigan case law has long held that it is not necessary that the victim be the actual owner. "As against a wrongdoer an actual possession or custody of the goods would be sufficient." Durand v. People (1882), 47 Mich. 332, 334. Durand was later cited in People v. Cabassa (1930), 249 Mich. 543, 547, where the person robbed was in charge of a gasoline station.
Here, however, Powers was not appointed to act as the custodian of the property by the actual owner. Since a case factually identical to the instant one has not come to our attention through appellate briefs or research, we turn to analogous reasoning for our determination.
The New Jersey court in State v. Bowden (1960), 62 N.J. Super. 339 ( 162 A.2d 911, 914), stated that the essence of the crime "is not that the property belonged to a specific person, but rather that it was the property of someone other than the thief."
In Barfield v. State (1939), 137 Tex Crim 256 ( 129 S.W.2d 310, 313), where a porter and night watchman was the person assaulted and robbed, the court said:
"In robbery the property must be taken by force and violence, not necessarily from the owner, but from any person in possession thereof whose right of possession is superior to that of the robber. The very fact that the property is taken from a person by the use of firearms, violence or threatened violence, is, within itself, sufficient to show that the person from whom it was taken was in possession thereof."
In State v. Pokini (1961), 45 Haw. 295 ( 367 P.2d 499), the court noted that "the actual condition of the legal title is immaterial to the thief." On the same point, the Pokini court said, at 503:
"Just as in the case of larceny, `one who has the right of possession as against the thief is, so far as the latter is concerned, the owner.'" (Citations omitted.)
State v. Cottone (1958), 52 N.J. Super. 316 ( 145 A.2d 509), presented a situation wherein the person assaulted and robbed was a housekeeper who had been given the general responsibility of keeping a close watch over the owner's household in his absence, and this was held sufficient custody to sustain a robbery conviction. The court did not find it essential that the housekeeper be given custody of the specific property taken.
From this discussion it is apparent that had the attendant Ricketts been robbed, there would be no real issue for decision. However, Ricketts assigned his responsibility to Antes temporarily, who in turn "shared" it with Powers. As in Cottone, supra, it was a general responsibility to keep watch in his (Rickett's) absence.
The Court is not here faced with an agency question as to whether Ricketts exceeded his authority when he delegated the care of the station to Antes, and further whether Antes had the authority to bring in a "co-subagent." Rather, we are presented with the sufficiency of possession of the person, one Powers, from whom the property in question was taken. His right to possession was certainly greater than that of his assailant. It has been held that stolen property can be the subject of a robbery. See cases cited in Pokini, supra, and in Levin v. United States (1964), 119 App DC 156 (338 F.2d 265). The illegality of the victim's possession does not prevent a robbery prosecution. Here, the property was feloniously taken by an assault with a dangerous weapon in the presence of the victim who was forced to give his assailant property over which he had a greater right to possession than the thief, who had no claim of ownership therein.
Although the information might well have been more adequately drawn to include the true ownership of the property as well, the omission was not a fatal defect. There is no claim that the defendant was not apprised of the charge which he had to meet. Neither legal title nor a valid principal-agent relation is requisite to support a conviction under the statute. We may say, as did the New Jersey court in State v. Ford (1966), 92 N.J. Super. 356 ( 223 A.2d 502, 506):
Similarly, in State v. Bowden (1960), 62 N.J. Super. 339 ( 162 A.2d 911, 915), the court stated:
"It may well be preferable for a robbery indictment to expressly negate ownership in the accused. But where the defendants can show no respect in which that failure has prejudiced their substantive rights, there appears no compelling reason, dictated by any of the considerations of fairness to criminal defendants, which would warrant invalidating the indictment at the expense of the State's interest."
"The robbery statute makes no specific reference to the element of ownership of the money or goods taken by the robber. It is enough that the cash or personalty belongs to someone other than the thief."
Affirmed.
QUINN and BAUM, JJ., concurred.