“A felonious intent is an inseparable and essential ingredient of every larceny, and if a person takes property under a claim of right, however[] unfounded, he is not guilty of the offense” [citation omitted]
How later courts described this case
- “A felonious intent is an inseparable and essential ingredient of every larceny, and if a person takes property under a claim of right, however[] unfounded, he is not guilty of the offense” [citation omitted]
Written by the judges who cited it.
The opinion
N. J. Kaufman, J.
(dissenting). I agree with the majority that the challenged instruction is erroneous, but I cannot find, as is required, that this error is harmless beyond a reasonable doubt. People v Swan, 56 Mich App 22 ; 223 NW2d 346 (1974). By instructing the jury that "[n]o creditor is entitled to collect a debt at gunpoint or by means of an assault”, the trial court (1) removed defendant’s only defense from the jury’s consideration and (2) charged the jury that defendant had, in fact, committed an assault. The challenged instruction is too close to representing a de facto directed verdict against defendant to be harmless error.
The majority’s determination that the instruction constituted harmless error is founded on its belief that defendant’s "own testimony conclusively showed that he did not in good faith believe that he was legally entitled to the possession of the bonds”. I cannot agree that defendant’s own testimony conclusively negated his own defense. *717 Parenthetically, if defendant’s own testimony did negate his defense, it would lend credence to defendant’s claim that his attorney, who put defendant on the stand to give this testimony, gave him inadequate assistance.
As authority for its holding, the majority cites a passage from 52A CJS, Larceny, § 26, p 449. I find a later portion of the same section to be more applicable:
"The fact that a person is indebted to another does not give the creditor a right to seize the debtor’s property in payment of the debt, and such a seizure, if made with intent to appropriate the property to the taker’s own use, is therefore larceny unless the act was done in the belief that the owner of the thing taken was willing that it should be applied in satisfaction of the debt.” (Emphasis supplied.) 52A CJS, Larceny, § 26, p 450.
Defendant gave testimony that the complaining witness willingly suggested that he and defendant go to get the bonds to satisfy the debt. The weight to be accorded this testimony is a matter for the jury. Further, the fact that, legally, defendant had no right to the funds does not conclusively negate the possibility that he believed he had a bona fide claim to them. The question of defendant’s subjective belief must be one for jury decision. People v Hillhouse, 80 Mich 580, 587 ; 45 NW 484 (1890).
As the Supreme Court stated in People v Liggett, 378 Mich 706, 714 ; 148 NW2d 784 (1967):
"A case may be reversed because the charge omits a legally essential ingredient. People v Prinz, 148 Mich 307 ; People v Kanar, 314 Mich 242, 254 ; People v Hearn, 354 Mich 468 . Similarly, without a request, a case may be reversed because of an erroneous or misleading charge as opposed to one which merely omits a pertinent though not legally necessary point. People v *718 MacPherson, 323 Mich 438 , 448 et seq; People v Guillett, 342 Mich 1, 7 ; People v Oberstaedt, 372 Mich 521, 526 . Defendant has a right to have a properly instructed jury pass upon the evidence. People v Visel, 275 Mich 77, 81 .”
Defendant’s right to a properly instructed jury was abridged by the court’s removal of the intent element.
I would reverse this case and remand it for a new trial.