PEOPLE v. DAVIS

BASHARA, J.

Defendant appeals from a plea-based conviction of breaking and entering a motor vehicle with the intent to steal property valued over five dollars, MCL 750.356(a); MSA 28.588(1), and his subsequent conviction as an habitual offender, MCL 769.12; MSA 28.1084.

The court found at the habitual offender hearing that the defendant had been previously convicted of armed robbery, attempted breaking and entering of a motor vehicle, and two attempted larcenies in a building.

A question of identity arose during cross-examination, since two of the files were under the name of Esau Davis, and two in the name of Esau Davis, Jr., with none of the files listing a specific date of birth.

A Detroit fingerprint identification officer was called to testify regarding fingerprints in the aforementioned files. The prosecutor requested that defendant's thumbprints be taken as a basis for comparison. Defendant objected to this action, asserting self-incrimination and claiming such a procedure should have been undertaken at an earlier stage of the proceeding.

The court overruled defendant's objection after a recess, and ordered the fingerprints taken. These prints and the earlier prints were identified as belonging to the same person.

Defendant first claims that the guilty plea must be reversed because the trial court failed to inform him specifically of his right to court appointed counsel throughout the entire criminal proceedings in the event of his indigency.

GCR 1963, 785.4(2) requires the court to affirmatively advise defendant of his right to counsel at each proceeding after the arraignment only if the defendant actually appears without counsel.

In this case, counsel appeared with defendant when he waived his right to a formal arraignment and at the guilty plea proceeding. Counsel also indicated to the court that he had advised defendant of his constitutional rights. Therefore, this claim is without merit.

Defendant's second contention is that the incourt fingerprinting constituted unfair surprise and did not allow his counsel adequate time to prepare for cross-examination.

Fingerprinting is a matter of identification and not incrimination. People v Davis (App for Reh), 17 Mich. App. 615; 170 N.W.2d 274 (1969), Schmerber v California, 384 U.S. 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966).

Permitting an in-court fingerprinting is within the discretion of the trial judge when the procedure is relevant to an issue at hand. People v Chimovitz, 237 Mich. 247, 251; 211 N.W. 650 (1927), People v Auerbach, 176 Mich. 23, 45; 141 N.W. 869 (1913). As stated by the Michigan Supreme Court in People v Les, 267 Mich. 648, 652; 255 N.W. 407 (1934):

"Practically all the decisions in which the question has been considered have held that evidence as to the correspondence of fingerprints is admissible to prove identity. See Powell v State, 50 Tex.Crim. R. ( 99 S.W. 1005); Brown v State, 76 Tex.Crim. 316 ( 174 S.W. 360); and State v Miller, 71 N.J. Law, 527 ( 60 A. 202)."

A question of identity being raised, the fingerprinting was a relevant procedure. Moreover, the record indicates the proceeding was delayed after the request to fingerprint was made, mitigating any claim of surprise. If anything, defendant's rights were protected by insuring that a proper identification was made.

Defendant's final contention is that it was error to allow the two convictions for attempted larceny in a building to be considered as prior felony convictions, since they are misdemeanors.

The habitual offender statute, MCL 769.12; MSA 28.1084, states:

"A person who after having been 3 times convicted within this state, of felonies or attempts to commit felonies, or under the law of any other state, government or country which if committed within this state would be felonious, commits any felony within this state is punishable upon conviction."

The statute dealing with attempts, MCL 750.92; MSA 28.287, provides in part:

"If the offense so attempted to be committed is punishable by imprisonment in the state prison for a term less than five years or imprisonment in the county jail or by fine, the offender convicted of such attempt shall be guilty of a misdemeanor."

Larceny in a building is a felony punishable by a prison term not to exceed four years, MCL 750.360; MSA 28.592, MCL 750.503; MSA 28.771. Thus attempted larceny is punished as a misdemeanor.

It is well settled that when construing statutes every legislative act is presumed to be constitutional and the purpose of the legislation a factor for consideration. Thomas v Consumers Power Co, 58 Mich. App. 486, 495; 228 N.W.2d 786 (1975), Wayne County Republican Committee v Wayne County Board of Comm'rs, 70 Mich. App. 620, 625; 247 N.W.2d 571 (1976).

The purpose of the habitual offender statute is to punish recidivists, the focus being on the status of the defendant. The substance of the offense, not the punishment prescribed, is the primary consideration. Cf. Salgado v United States, 277 F.2d 653 (CA 1, 1960), Taylor v United States, 333 F. Supp. 1067 (ED Miss, 1971).

MCL 769.12 expresses no requirement that prior convictions for "attempts to commit felonies" must in themselves constitute felonies. Therefore, a prior misdemeanor conviction for attempt to commit larceny in a building may be the basis for an information under MCL 769.12 et seq.; MSA 28.1084 et seq.

Defendant claims such a statutory construction violates equal protection. He argues that an attempted felony committed in a foreign jurisdiction where the crime was deemed by law to be a misdemeanor would not be counted as a prior offense under the Michigan statute.

The statute, in considering crimes committed in another jurisdiction, does not take into account the label affixed to the crime but whether the act was "felonious". The term "felonious" connotes intent. Therefore, attempts to commit felonies, while they may be punishable as misdemeanors, would apply to the act because an attempt to commit a felony requires the same intent as the commission of the felony itself.

Affirmed.