People v. Hardiman
People v. Hardiman
Opinion of the Court
Following a jury trial in the Kent County Circuit Court, defendants were convicted of breaking and entering with the intent to break and enter, the information referring to MCL 750.110; MSA 28.305 (Count I), breaking and entering with the intent to commit larceny, MCL 750.110; MSA 28.305 (Count II), and possession of burglary tools, MCL 750.116; MSA 28.311 (Count III). Thereafter, defendant Hardiman was convicted by a jury of being a third-felony offender, MCL 769.11; MSA 28.1083 and MCL 769.13; MSA 28.1085, and defendant Wallace was convicted of being a second-felony offender, MCL 769.10; MSA 28.1082 and MCL 769.13; MSA 28.1085. Hardiman was sentenced to serve three terms of from 10 to. 20 years imprisonment, and Wallace was sentenced to serve three terms of from 2 to 15 years imprisonment. Each defendant’s sentences are to
A brief summary of the basic facts resulting in the convictions follows. Defendants entered a vacant, burned-out building at 721 Cherry, S.E., in Grand Rapids where they proceeded to break a hole into a common wall which this building shared with a convenience store. At the time they were apprehended, the hole in the wall was approximately one foot high and two feet wide. A machete, a hammer, and a lug wrench were found on the floor near defendants. When defendants were apprehended, they were wearing socks on their hands.
Defendants first contend that their convictions for breaking and entering with the intent to commit breaking and entering must be reversed because no such crime exists in Michigan. We agree. Felony breaking and entering pursuant to MCL 750.110; MSA 28.305 requires proof that the actor intended "to commit any felony, or any larceny therein”. Here, the prosecution failed to specify in Count I any intent except the intent to break and enter. Under MCL 750.115; MSA 28.310, breaking and entering without permission is a misdemeanor, and a defendant may not be convicted of a felony breaking and entering because he intended to commit a misdemeanor inside the building. Where an information charges no crime, the court lacks jurisdiction to try the accused, and a motion to quash the information or charge is always timely. People v Calvin, 60 Mich 113, 119-120; 26 NW 851 (1886).
The prosecution argues, however, that it is clear that Count I really charged defendants with breaking and entering with the intent to commit larceny and any defect in the information was merely
Defendants next assert that their convictions must be reversed because the prosecutor committed misconduct by repeatedly asking questions which concerned inadmissible evidence. Assuming, arguendo, that the questions in issue were improper, they were clearly harmless beyond a reasonable doubt. People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972).
The remaining two issues are raised only by defendant Hardiman by way of a supplemental brief submitted in propria persona. Defendant first contends that the trial court erred in allowing the prosecution to ámend the supplemental information during trial to correctly date one of his
Defendant also contends that the trial court erred by imposing sentences in excess of those prescribed by statute. While the sentences would be invalid if, as defendant contends, he were sentenced for the substantive offenses of breaking and entering with intent to commit larceny and possession of burglary tools, he was in fact sentenced as a third-time felony offender. Under those circumstances, the sentences were within legal limits. MCL 769.11; MSA 28.1083.
Defendants’ convictions and sentences for breaking and entering with the intent to break and enter are reversed. Defendants’ remaining convictions and sentences are affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.