People v. Johnson , 110 Mich. App. 735 ( 1981 )

110 Mich. App. 735 (1981) 313 N.W.2d 93

PEOPLE
v.
JOHNSON.

Docket No. 50068.

Michigan Court of Appeals.

Decided September 15, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Janice M. Joyce, Assistant Prosecuting Attorney, for the people.

Angela R. Sims, for defendant on appeal.

Before: R.B. BURNS, P.J., and ALLEN and T. GILLESPIE,^[*] JJ.

PER CURIAM.

The defendant was originally charged with felony murder, MCL 750.316; MSA 28.548, armed robbery, MCL 750.529; MSA 28.797, and violation of the felony-firearm statute, MCL 750.227b; MSA 28.424(2). Following an oral motion by the prosecution, made during the course of the trial, the trial court added to the information a count of receiving and concealing stolen property with a value over $100. MCL 750.535; MSA 28.803. The jury acquitted the defendant of the felony-murder, armed robbery, and felony-firearm charges, but returned a verdict of guilty on the added count of receiving and concealing stolen property. Defendant appeals, raising three claims of error.

The defendant first claims that the trial court erred in amending the information to include a count of receiving and concealing stolen property.

At trial, the defendant took the stand in his own defense. The prosecution's main witness had testified that the defendant killed and robbed the victim of his watch. Defendant related that his only involvement in the incident was attempting to pawn a watch, which turned out to be the victim's, the morning after the shooting. He testified that the prosecution's main witness had requested his help to sell a watch which the witness had acquired the previous night. He further testified that he and the witness went around to various "fences" in an effort to sell the watch. Finally, they ended up pawning the watch.

After the defendant's version of the incident was revealed, the prosecutor moved to add to the information a count of receiving and concealing stolen property arguing that the defendant had admitted the crime in an effort to defeat the murder charge. Defense counsel objected, arguing that the defendant had not admitted that he knew the watch was stolen but, rather, that the defendant had testified that he did not know the origin of the watch. The trial court allowed the amendment to the information.

MCL 767.76; MSA 28.1016 allows for amendments of informations.^[1] This Court in People v Erskin, 92 Mich App 630, 637-638; 285 NW2d 396 (1979), interpreted the statute:

"[T]he * * * statute does not authorize the court to allow the changing of the offense or the addition of a new charge by way of amendment; rather, it only permits the procedural cure of defects in the statement of the offense which is already sufficiently charged to fairly apprise the defendant and court of its nature." This Court will not reverse a decision to amend an information unless it finds that the amendment prejudiced defendant's defense or that a failure of justice resulted. People v Mahone, 97 Mich App 192; 293 NW2d 618 (1980). However, these rules must be read in conjunction with People v Kyllonen, 402 Mich 135; 262 NW2d 2 (1978). In Kyllonen, 149, fn 15, the Supreme Court stated that the actual thief may not be convicted under the receiving and concealing stolen property statute. However, where a defendant charged with receiving and concealing stolen property takes the stand and reveals in midtrial that he was the thief, and the revelation comes as a surprise, the prosecution may ask the court's permission to amend the information to include the appropriate count.

The rationale of the Kyllonen case is applicable here. The defendant took the stand and related that his only involvement in the incident was attempting to pawn the victim's watch. The defendant's own testimony was arguably a confession to the crime of receiving and concealing stolen property. It was up to the jury to determine whether or not the defendant's testimony and the circumstances surrounding the receipt of the watch were sufficient to infer that the defendant knew, at the time he received the property, that the property was stolen. Under these circumstances, the trial court did not err by allowing the amendment of the information.

Defendant's remaining two claims of error are meritless.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Although MCL 767.76; MSA 28.1016 specifically refers to amending indictments, MCL 767.2; MSA 28.942 provides that all provisions of the law applying to indictments apply to informations.