People v. Hall , 19 Mich. App. 95 ( 1969 )

Holbrook, J.

The defendant was convicted of robbery armed.* ¹ At the trial there was introduced in evidence over defendant’s objection a loaded hand gun found on defendant when he was arrested two days after the crime was allegedly committed. The victim was asked whether he had a good look at the gun, to which he replied that “I didn’t look too straight at it.” When asked the color, he testified, “It was blue steel, I think it was. I don’t know for sure.”² He later testified that it was black. The victim was then asked whether it was a revolver, to which he replied that, “I couldn’t tell you for sure. All I knew was that it was a gun.”

The victim testified that the gun used by the defendant in holding him up was fired into the ground as a warning. An officer of the police scientific laboratory, who examined the gun found on the defendant a few days after the defendant’s arrest, testified that he did not examine it to determine whether it had been fired.

Although the evidence did not establish that the gun found on the defendant at the time of his arrest was the gun used in committing the crime, it is a well-established rule that where weapons or tools were used to commit a crime, weapons or tools that might have been used to commit the crime found in the accused’s possession at the time of arrest may be introduced without proof that they were the very weapons or tools in fact so used.³

The information charged that the crime was committed “with a dangerous weapon, to-wit: a .25 cal. Astra blue steel automatic-pistol, serial #753425.” (Emphasis supplied.) The serial number so stated was the serial number of the gun found on the defendant at the time of his arrest. The people were unable to prove that the gun found on the defendant was in fact the gun used in committing the crime. However, in our opinion, all the emphasized quoted words other than the word “pistol” are surplusage and may be ignored.⁴

There was sufficient evidence to justify a jury verdict that the defendant was guilty of the crime charged beyond a reasonable doubt.

The trial court erred in failing to give the defendant specific credit against the sentence of 3 to 15 years in prison for the time he served in jail between the time of his arrest and the time of sentencing, as provided for in the applicable statute:

“Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.” MCLA § 769.11b (Stat Ann 1969 Cum Supp § 28.1083 [2]).

At the time of defendant’s arrest he had escaped from the Detroit House of Correction where he was serving a state prison sentence. At the time of his arrest and at subsequent appearances before the court, bail was set at $5,000 with two sureties. Defendant did not furnish bail and he was detained in the Wayne county jail from the time of his arraignment on the warrant on September 10, 1966, through the date of trial, March 20, 1967, and the sentencing on April 5, 1967. The total period of his detention for which he claims credit is 207 days.

After oral argument in our Court the people furnished us with affidavits stating that the department of corrections has given the defendant credit for the 207 days served in the Wayne county jail against sentences still not fully served imposed upon the defendant following earlier convictions for other offenses.⁵

In People v. Chattaway (1969), 18 Mich App 538, our Court observed that in Michigan, with exceptions not here relevant, a sentence may not be imposed to commence upon completion or expiration of another sentence (In re Carey [1964], 372 Mich 378, 380). It was said that the sentence credit statute avoids unnecessary chilling of exercise of the right to trial by requiring adjustment of the sentence of one denied or unable to furnish bond so that he spends no longer in jail than one receiving the same sentence who is released on hail pending trial.

This statute is remedial and has been liberally construed by our Court so as to effectuate its purpose. People v. Havey (1968), 11 Mich App 69; Booker v. Judge of Recorder’s Court (1967), 7 Mich App 705, 707; People v. Grandahl (1969), 16 Mich App 221, 224, 225. In Chattaway our Court stated:

“Nor is there anything in the statute which makes relevant the fact that the consequence of granting-credit in this case would be to give the plaintiff the benefit of the credit against the sentences imposed in both cases. In this connection we note that the ■ sentence credit which the plaintiff obtained in the other case was of illusory benefit to him; since both sentences run concurrently, the shorter sentence in the other case was in practical effect absorbed by the longer sentence imposed in this case. If the plaintiff can only have credit against one sentence (as the people contend), surely he should receive the credit against the longer sentence imposed in this case, where it would be of value to him, rather than against the shorter sentence imposed in the other case where the credit was of no value to him.”

We adopt this reasoning. The fact that Hall received credit against his old sentences does not negate his right to credit against the present armed robbery sentence. Since the armed robbery sentence is for a longer term than the unserved portions of the old sentences, to allow the credit against the old sentences and not the new would, in the light of the concurrency of Michigan sentences, be to confer an illusory benefit. Hall is entitled to credit against the armed robbery sentence for the 207 days.

We see no need for remanding- for resentence. Pursuant to the provisions of GCK 1963, 820.1(7) it is ordered that the defendant’s sentence be amended specifically to grant him credit for the 207 day period.

\ffirmed in part and reversed in part.

Beer, J. concurred.

1 MCLA § 750.529 (Stat Ann 1969 Cum Supp § 28.797).

2 Parenthetically, the information referred to the gun found on the defendant as a .25 caliber Astra blue steel automatic-pistol, serial #753425.

3 2 Wigmore on Evidence, § 238; 1 Wharton, Criminal Evidence. § 203; (Michigan citations) People v. Cona (1914), 180 Mich 641, 652; People v. Harris (1942), 300 Mich 463; People v. Ritholz (1960), 359 Mich 539.

4 “All unnecessary allegations shall he rejected as surplusage.” MCLA § 767.47 (Stat Ann 1954 Rev § 28.987).

5 Actually, the defendant received eredit against his old sentence for 209 days, including the two days between his arrest and arraignment. No claim has been made on this appeal by the defendant that he is entitled to credit for those two days against the sentence imposed on account of the conviction here on appeal.

In response to the affidavits furnished by the people the defendant submitted a letter from the director of the department of corrections addressed to the defendant’s attorney stating: “As of the date of his [Hall’s] arrest [on September 8, 1966], time resumed running on the attempted breaking and entering sentence oven though he was not returned to our jurisdiction until April 5, 1967. We have a copy of a letter in our file from Judge Schemanske to Mr. Hall dated June 2, 1967, stating that time eredit for the time served in the'Wayne county jail while waiting disposition on the robbery armed eharge was not allowed because Mr. Hall was a fugitive and escapee from the State Prison of Southern Michigan. We believe that under the statute (MCLA § 769.11b [Stat Ann 1969 Cum Supp § 28.1083(2)] Mr. Hall should be granted this credit against the armed robbery sentence. We cannot, of course, apply that credit without an order from the court.”