People v. McCracken 88 Mich. App. 286

Bashara, P.J.

Defendants raise 14 issues in their appeals from jury convictions of conspiracy to break and enter a dwelling house with intent to commit larceny therein, MCL 750.157a, 750.110; MSA 28.354(1), 28.305, and of receiving and concealing stolen property over the value of $100, MCL 750.535; MSA 28.803.

The charges in this case arose from the burglary of the home of a Ferndale coin collector. At trial, the three participants in the burglary, Michael Thomas, Ron Oesterling, and Joel Reed, testified pursuant to a grant of transactional immunity. In brief, their testimony indicated that defendant McCracken became involved in the planning of the . *291burglary and that he indicated he could get rid of any coins stolen through defendant O’Connell.

After the burglary, the coins were put into a briefcase and taken at a later date by McCracken to O’Connell’s office and left there.

Both defendants denied any involvement in the burglary or with the stolen coins.

At the outset, we wish to observe that this was a lengthy and complex trial, fraught with difficulties. The trial judge is to be commended for his excellent demeanor and control of the unusual circumstances, at times exacerbated by the actions of perhaps overly zealous counsel.

Defendants initially claim that the jury instruction on intent impermissibly shifted the burden of proof from the prosecution to the defense. The trial judge instructed the jury as follows:

"The question of intent is one that is hard to establish directly because grown persons do not always disclose the object they have in view in any acts in which they may indulge, and you have to gather the intent from the character of the act, the circumstances surrounding it and from conduct of a like character which may appear as tending to aid you in finding and discovering it. But in connection with all this, unless the testimony satisfied you of something else you are warranted in holding a party responsible for the natural, probable and legitimate consequences of his acts. The intent may be presumed from the doing of a wrongful, fraudulent or illegal act. But this inference or presumption is not necessarily conclusive. The law presumes that every man intends the legitimate consequences of his own acts. Wrongful acts, knowingly or intentionally committed can neither be justified nor excused on the ground of innocent intent.”

This instruction has been considered by the Court many times. A similar instruction was approved in *292 People v Ross, 69 Mich App 705; 245 NW2d 335 (1976), and in People v Adams, 48 Mich App 595; 210 NW2d 888 (1973).

Defendants rely on People v Wright, 78 Mich App 246; 259 NW2d 443 (1977), which relied on People v Smith, 67 Mich App 145; 240 NW2d 475 (1976), to proscribe a like instruction. However, it is the opinion of this panel that Wright’s reliance on Smith was misplaced. Reversal in Smith was predicated on an error in the self-defense instruction. In fact, the intent instruction was approved by two of the three judges on the Smith panel.

Defendants objected to the instruction as given. Nonetheless, under any standard, when reviewed as a whole, we find no reversible error in this regard. People v Townes, 391 Mich 578; 218 NW2d 136 (1974), People v Ross, supra.

The other claims of error in jury instructions are raised here for the first time. Our review reveals no manifest injustice or prejudicial error.

Defendants also argue that they were deprived of fundamental fairness by rulings of the trial court, and prosecutorial misconduct during cross-examination and closing argument.

We find that sustaining an objection to a question as to whether a witness was aware of the maximum prison term he could have received if he had not been granted immunity does not constitute reversible error. It is only required that the court make known to the jury that a grant of immunity has been made. People v Love, 43 Mich App 608; 204 NW2d 714 (1972).

Just as jury instructions are to be read as a whole, so must the remarks of the prosecutor. Failure to object bars appellate review unless the prejudice is so egregious that it cannot be cured by *293judicial instruction. People v Hernandez, 80 Mich App 465; 264 NW2d 343 (1978).

Our review of the record convinces us that no manifest injustice or reversible error result from prosecutorial conduct. People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972), People v Ellis, 62 Mich App 109, 113; 233 NW2d 205 (1975), People v Foster, 77 Mich App 604, 611; 259 NW2d 153 (1977).

The fact that the prosecutor misstated a fact regarding one of the witnesses does not, in light of this record, constitute reversible error. We are mindful of the oft-quoted wisdom of Justice North in People v Burnstein, 261 Mich 534, 538; 246 NW 217 (1933), where in it was stated:

"* * * in the haste and heat of a trial it is humanly impossible to obtain absolute perfection, and of necessity some allowance must be made in determining whether impromptu remarks are to be held prejudicial. Statements should not be held prejudicial if they are made in good faith, and, when fairly construed, they do not appear to have been such as influenced the jury adversely to the rights of the accused.”

Defendant McCracken next argues that it was reversible error for the prosecution to fail to provide him with a full transcript of grand jury proceedings used to impeach him. The record reveals that the prosecutor referred to only a page and a half of the transcript of the grand jury proceedings on cross-examination. Defense counsel was provided with that portion of the transcript actually used, and was permitted to view the transcript in its entirety.

Defendant relies on People v Karoll, 315 Mich 423; 24 NW2d 167 (1946), and People v Bellanca, 386 Mich 708; 194 NW2d 863 (1972), in support of *294his position. However, both of those cases are distinguishable from the facts of the case at bar in that the cases involved arose from grand jury proceedings. In the instant case, the grand jury proceeding pertained to a collateral matter. The few pages of transcript were used strictly for impeachment purposes. In view of these circumstances, we find no reversible error.

Defendant McCracken also argues the interval of 540 days from the alleged commission of the offense until arrest was a delay sufficient to deprive him of due process. Defendant relies on People v Hernandez, 15 Mich App 141; 170 NW2d 851 (1968). However, People v Noble, 18 Mich App 300; 170 NW2d 916 (1969), held there was no constitutional right to be arrested.

We need not dwell unduly on this contention. Suffice it to say that even were we to accept the reasoning of Hernandez, supra, a denial of due process was not evident in the matter before us as we find no prejudice to the defendant. See People v McNeal, 72 Mich App 507; 250 NW2d 110 (1976).

The final issue, raised by defendant O’Connell, is whether the evidence was sufficient to prove beyond a reasonable doubt his guilt of the crimes charged.

In examining such a claim, the evidence must be viewed in the light most favorable to the prosecution. A jury verdict will not be overturned unless there is an absence of any direct or circumstantial evidence to prove an essential element of the crime charged. People v Flinnon, 78 Mich App 380, 384; 260 NW2d 106 (1977), People v Milton, 81 Mich App 515, 517; 265 NW2d 397 (1978).

Defendant O’Connell was charged with conspiracy to break and enter and with receiving and *295concealing stolen property. The gist of conspiracy is an unlawful agreement. There must be a showing of an intent to conspire and an intent to commit the substantive offense. People v Atley, 392 Mich 298; 220 NW2d 465 (1974).

However, even if the facts are circumstantial in nature, they must warrant at least a fair inference of the elements to be established. People v Miller, 49 Mich App 53, 59; 211 NW2d 242 (1973). Charges of conspiracy cannot be made out by piling inference upon inference. People v Atley, supra.

Defendant need not be a party to the original agreement, know all the co-conspirators, or participate in the full scope of the conspiracy. If he joins after the formation, or aids with an understanding of its purpose, he becomes a party to the conspiracy, e.g., People v Scotts, 80 Mich App 1; 263 NW2d 272 (1977).

We have examined in detail the voluminous record in this case. The only evidence which even remotely touches upon knowledge or an agreement between defendant O’Connell and others to perpetrate the burglary was the conversation between defendants O’Connell and McCracken allegedly overheard by witness Thomas. His testimony related a conversation between O’Connell and Mc-Cracken which consisted only of a general discussion of coins and their value. He testified that there was no discourse about the planned burglary, nor was the origin of any coins discussed. We cannot conclude that this evidence, standing alone, is sufficient to justify an inference that defendant O’Connell was guilty of conspiracy to break and enter a dwelling house. See People v Sobczak, 344 Mich 465, 469; 73 NW2d 921 (1955).

Defendant O’Connell’s conviction of conspiracy to break and enter must therefore be set aside, as *296there simply was no evidence to support even an inference in that regard.

Also challenged is the sufficiency of the evidence regarding the crime of receiving and concealing stolen property.

The elements of the crime, which must be evidentially proven, 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. See People v Martinovich, 18 Mich App 253, 257; 170 NW2d 899 (1969).

Although the evidence to support this charge is at best sketchy, and often conflicting, all three of the burglary participants testified that they had been told a lawyer could get rid of the coins. All three of them claimed seeing the coins put into the briefcase that was later taken into O’Connell’s office and left there.

We find some evidence was presented on every material element of the crime. It is for the jury, not the Court, to weigh this evidence. People v Eastway, 67 Mich App 464, 469; 241 NW2d 249 (1976).

Affirmed as to defendant McCracken.

Defendant O’Connell’s conviction of receiving and concealing stolen property is affirmed. His conviction of conspiracy to break and enter is reversed.

C. W. Simon, Jr., J., concurred.

Bronson, J.

(concurring). I concur in Judge Bashara’s thorough and well-written opinion. *297However, I write separately to amplify on one point which I feel needs clarification.

The concluding sentence of the instruction given in the present case, "[wrongful acts, knowingly or intentionally committed can neither be justified or excused on the ground of innocent intent”, was labeled as erroneous by the Michigan Supreme Court in People v Holcomb, 395 Mich 326; 235 NW2d 343 (1975). In Holcomb defendant admitted committing the "criminal” act, i.e., taking the money from the victim by force. He denied, however, that he intended to rob the victim. Instead, he insisted that he was merely recovering money that he thought was rightfully his.1 Since defendant admitted the act, the only contested issue in the case was his intent. By instructing the jury that wrongful acts cannot be justified by an innocent intent the trial court completely vitiated defendant’s sole defense. In effect, the instruction told the jury that'even if it believed defendant’s testimony it must nevertheless convict him because his innocent intent was irrelevant once he admitted committing the act.

The present case, however, differs significantly from Holcomb. Defendants’ intent in taking the coins was not a contested issue. Defendants did not claim that their intent in taking the coins was innocent, but rather that they did not take the coins at all. The sole contested issue in the case was whether defendants actually committed the act. Thus, the instruction did not vitiate nor impair in any manner a defense presented by defendants. It is clear that once the jury concluded that defendants committed the acts, it logically inferred *298that they possessed the requisite intent.2 It is equally clear under the facts of this case that once the jury found that defendants committed the criminal acts, there was no evidence nor logical reason from which any reasonable person could have drawn an inference of innocent intent. Therefore, the instruction, although erroneous, had absolutely no bearing on the case.

Taking the instructions as a whole and reviewing them in relation to the facts of this case, and the nature of the defenses raised, it becomes apparent that the inclusion of the one erroneous sentence in the court’s otherwise proper set of instructions would not have affected the outcome of the case. The error was therefore harmless beyond a reasonable doubt.