People v. Rood , 83 Mich. App. 350 ( 1978 )

83 Mich. App. 350 (1978) 268 N.W.2d 403

PEOPLE
v.
ROOD

Docket No. 77-3013.

Michigan Court of Appeals.

Decided May 10, 1978.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Doyle A. Rowland, Prosecuting Attorney, and Gerald L. White, Chief Assistant Prosecuting Attorney, for the people.

Whittaker & King, for defendant on appeal.

Before: DANHOF, C.J., and BRONSON and CYNAR, JJ.

PER CURIAM.

Defendant appeals as of right his June 17, 1977, jury conviction for breaking and entering a building with intent to commit larceny therein. MCL 750.110; MSA 28.305. On appeal he raises the sole issue of whether the trial judge committed reversible error in refusing his request for an instruction on the crime of receiving and concealing stolen property.

At trial several witnesses stated that they purchased certain items from Tim Jurek at defendant's home. Further, one witness testified that he had purchased an item directly from defendant. The evidence established that these items had previously been stolen from the home of Steve Suhan. Tim Jurek testified that he and defendant had broken into Suhan's home with the intent to commit larceny therein and that they did in fact commit larceny.

At the conclusion of the evidence, counsel for the defense requested an instruction concerning receiving and concealing stolen property in excess of $100. MCL 750.535; MSA 28.803. This request was denied by the trial judge who stated that:

"although the evidence would tend to substantiate that he might also be guilty of receiving and concealing, the elements of that particular crime are not necessarily included in the crime charged, that is, breaking and entering."

In People v Ora Jones, 395 Mich. 379, 387; 236 NW2d 461 (1975), the Court stated:

"The common-law definition of lesser included offenses is that the lesser must be such that it is impossible to commit the greater without first having committed the lesser. 4 Wharton, Criminal Law and Procedure, § 1799. This definition includes only necessarily included lesser offenses. This definition, however, is generally conceded to be unduly restrictive, and thus most jurisdictions, including Michigan, have statutes that are broadly construed to permit conviction of `cognate' or allied offenses of the same nature, under a sufficient charge. These lesser offenses are related and hence `cognate' in the sense that they share several elements, and are of the same class or category, but may contain some elements not found in the higher offense."

See also People v Van Wyck, 402 Mich. 266; 262 NW2d 638 (1978). Thus, to constitute a lesser included offense the lesser offense and the greater offense must 1) share some common elements and 2) must be of the same class or category.

The offenses under examination here fail on both counts. The crimes contain no common elements whatsoever. As pointed out in People v Matuja, 77 Mich. App. 291, 295; 258 NW2d 79 (1977):

"The elements of the breaking and entering charge in this case are: (1) breaking and entering, (2) with felonious intent, (3) of an occupied dwelling. People v D'Argis, 44 Mich. App. 186, 188; 205 NW2d 19 (1972). The elements of receiving and concealing stolen property are: (1) that the property was stolen; (2) the value of the property; (3) the receiving, possession or concealment of such property by the defendant with the knowledge of the defendant that the property had been stolen; (4) the identity of the property as being that previously stolen; and (5) the guilty constructive or actual knowledge of the defendant that the property received or concealed had been stolen. People v Martinovich, [18 Mich. App. 253, 257; 170 NW2d 899 (1969)]."

In addition, the two offenses are not of the "same class or category". Although somewhat vague, this requirement was construed in Matuja, supra, 295, to require that the offenses share a "common statutory purpose". In People v Kyllonen, 402 Mich. 135; 262 NW2d 2 (1978), the Court extensively examined the purpose of the receiving and concealing statute and concluded:

"It is directed toward those who assist the thief or others in the disposition or concealment of stolen property. The everyday understanding of the language employed excludes the person who committed the larceny." Kyllonen, supra, 145.

However, the purpose of the breaking and entering statute is to protect "the right to peaceful habitation". People v Winhoven, 65 Mich. App. 522, 526; 237 NW2d 540 (1975). Thus, the statutes have distinct purposes. Since the offenses are not of the "same class or category", the second part of the Ora Jones test was not met. Thus, the instruction was properly denied.

Defendant argues that Paterno v Lyons, 334 U.S. 314; 68 S. Ct. 1044; 92 L. Ed. 2d 1409 (1948), mandates a contrary result. That case holds that a defendant charged with the offense of receiving and concealing stolen property has notice that he may have to defend against a charge of attempted larceny. However, Paterno grants a criminal defendant no right to be charged with a particular offense. Rather, it merely holds that under the circumstances of that case, no due process violation occurred.

Affirmed.