McGREGOR, J.
The defendant was charged in one complaint and warrant with armed robbery, MCLA 750.529; MSA 28.797 (Count I), and receiving stolen property in excess of $100, MCLA 750.535; MSA 28.803 (Count II), and, in another complaint and warrant, with breaking and entering with intent to commit a larceny, MCLA 750.110; MSA 28.305. The two cases were tried together, but the court granted a directed verdict on Count II of the first case, at the close of plaintiff's proofs. On October 22, 1974, the defendant was found guilty by a Midland County Circuit Court jury of armed robbery and of breaking and entering. Having been subsequently sentenced to a term of from 8 to 15 years in prison for the armed robbery conviction, and to a term of from 5 to 10 years for the breaking and entering conviction, defendant now appeals of right.
On appeal, defendant raises three claims of error. His first contention is that the trial court committed reversible error by denying a defense request for a directed verdict on the armed robbery charge. The request was made at the close of plaintiff's case.
Testimony by the victims, Carl and Vivian Manaeke, comprised plaintiff's foundation for the armed robbery charge. Carl Manaeke, the owner of Krystal's Market in Midland, Michigan, testified that on June 28, 1974, at about 7:45 p.m., he was with his wife in the store. At that time a man, whom Manaeke identified as the defendant, came into the store to purchase several cases of beer. Defendant asked for five cases, and Manaeke went to the walk-in cooler in the back of the store. The defendant moved his car up to the steps so that Mr. Manaeke would not have to carry the cases as far. Manaeke stated that he put the beer in the trunk of the car as a service for the defendant.
After he had put four cases in the trunk and had come back from the cooler with the last case, he asked his wife if defendant had paid for the beer. She replied that he had not. Mr. Manaeke then told the defendant that he owed them forty-some dollars. At that point, defendant pulled a revolver and pointed it at Manaeke. At this time, the last case of beer was sitting on the counter. Mr. Manaeke testified that defendant was ten feet away from him and that defendant said "We'll call it even", or something like that. Defendant then left the store and drove off in the car.
Manaeke testified that the price of the beer was $44.70, as reflected by a sales slip. It accounted for five cases of beer plus two cartons of cigarettes. The defendant had taken the two cartons of cigarettes from a self-serve area, but Manaeke did not know that until his wife told him after the four cases of beer had been put in the trunk. Manaeke testified that he took two cases at a time out to defendant's car. When defendant opened the trunk, he had to use a screwdriver to do so. Defendant left the fifth case of beer on the counter after he had pulled the gun on Manaeke. Manaeke testified that he always loaded large quantities of beer for a customer as a service before the shopper had paid for it. Vivian Manaeke corroborated her husband's testimony.
On appeal, defendant argues that this evidence was insufficient as a matter of law to present a prima facie case of armed robbery. The essential elements of armed robbery are:
"(1) that an assault was committed by defendant upon the complainant, (2) that the defendant feloniously took any property which might be the subject of larceny from the complainant or in his presence, (3) that the defendant was armed with a weapon described in the statute." People v Styles, 61 Mich. App. 532, 534; 233 N.W.2d 70 (1975). See also People v Needham, 8 Mich. App. 679, 683; 155 N.W.2d 267 (1967).
Defendant contends that plaintiff's proofs failed to establish a "felonious taking". Defendant bases this contention on a claim that defendant's alleged taking of property occurred before the alleged assault and, therefore, the taking was not accomplished by means of an assault. Possession, according to defendant, was severed when Mr. Manaeke placed the beer in the trunk of defendant's car. In response, plaintiff describes the evidence as depicting a single transaction in which "the real severing of possession from the owner (Mr. Manaeke) was accomplished by placing him in fear of violence by use of the gun".
Defendant's appeal presents a factual setting of first impression. Facts similar to the instant case have resulted in a divergence of authority in other jurisdictions. The general rule is that an assault must be contemporaneous with a taking in order to support a charge of armed robbery. 2 Wharton's Criminal Law and Procedure, § 559, p 263, People v Herbert Sanders, 28 Mich. App. 274, 276; 184 N.W.2d 269 (1970). Decisions in other jurisdictions have depended on whether the alleged robbery was viewed as an ongoing transaction or was broken up into its component acts. The majority view has favored the broader "transaction" perspective. A minority of courts have required defendant's use of force to precede or occur simultaneously with the physical taking of the property.
See e.g., State v Velicka, 143 Conn. 368; 122 A.2d 739 (1956) ("within the sequence of events directly connected with the * * * robbery"), Commonwealth v Jones, 362 Mass. 83, 87; 283 N.E.2d 840, 843 (1972) ("causal connection between the defendant's use of violence or intimidation and his acquisition of the victim's property"), State v McDonald, 74 Wn.2d 141, 443 P.2d 651 (1968), Hermann v State, 239 Miss. 523; 123 So.2d 846 (1960), People v Wilkes, 16 App. Div. 2d 962; 229 N.Y.S.2d 793 (1962), Fields v State, 364 P.2d 723 (Okla Crim App, 1961), People v Heller, 131 Ill. App.2d 799; 267 N.E.2d 685 (1971), Gray v State, 10 Md. App. 478; 271 A.2d 390 (1970).
See e.g., Williams v State, 124 Ohio St. 585; 180 N.E. 58 (1932), State v Holmes, 317 Mo 9; 295 S.W. 71 (1927), Mason v Commonwealth, 200 Va. 253; 105 S.E.2d 149 (1958).
We find that relevant Michigan cases and the inherent logic of the majority view compel us to reject defendant's argument here. Regardless of their perspective courts have adopted language from Commonwealth v Homer, 235 Mass. 526, 533; 127 N.E. 517, 520 (1920) as a definition of "presence or possession":
"A thing is in the presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it."
See Perkins on Criminal Law (2d ed), p 281-82, People v Moore, 13 Mich. App. 320, 323; 164 N.W.2d 423 (1968), lv den 381 Mich. 796 (1969). Further, actual physical possession has not been required. The question is whether, at the time of defendant's use of force, the victim's "right to possession was * * * greater than that of his assailant". People v Needham, supra, at 685.
Here, Carl Manaeke's act of placing four cases of beer in the trunk of defendant's car did not sever his right to possession. If defendant had not intervened with force, he could have and, presumably, would have retained his property. The stolen goods were sufficiently within the victim's control that he could have recovered them if he had not been overcome by fear.
In People v Herbert Sanders, supra, we made an analogous holding. Defendant in Sanders appealed a plea of guilty to a charge of assault with intent to rob and steal being armed, MCLA 750.89; MSA 28.284. The record revealed that the defendant had followed the victim to her house and had, while armed, removed a bag of money from her bedroom by stealth. After he was discovered, he took her purse from the living room and fled. In doing so, he fired a shot into the air to prevent the victim's grandson from pursuing him.
The Court noted that "[t]he general rule is that an assault must be concomitant with the taking" and concluded that:
"A close reading of the cases from other jurisdictions reveals no valid basis for isolating the incidents of the entire event when the taking is not effectively completed until after the assault. Hermann v. State (Miss, 1960), 123 So.2d 846. It is the opinion of this Court that the incident of the taking must be viewed in its totality in order to ascertain the intent of the defendant when the assault occurs." 28 Mich App at 276-277.
We find this view equally as applicable and cogent here.
Defendant's second appellate claim is that error was committed when statements made by defendant to police at the time of arrest were ruled voluntary and admitted into evidence. The voluntariness of defendant's statements was determined pursuant to a Walker hearing. In assessing claims of error concerning Walker hearings, appellate courts conduct a de novo review of the record and make an independent determination of the voluntariness of the challenged statements. People v Robinson, 386 Mich. 551; 194 N.W.2d 709 (1972), People v Juniel, 62 Mich. App. 529; 233 N.W.2d 635 (1975).
People v Walker (On Rehearing), 374 Mich. 331; 132 N.W.2d 87 (1965).
In the instant case, defendant contended that the challenged statements were involuntary because he was intoxicated when he made them. At the Walker hearing, the court heard defendant testify that he had consumed a significant amount of beer prior to his arrest and that he was intoxicated when he was arrested and when he made the challenged confession. At the hearing, the arresting officers and the officer who questioned defendant testified that, while there was alcohol on defendant's breath, his demeanor was not that of a man so intoxicated as to be unable to knowingly waive his rights and make a voluntary confession.
Our review of the record compels us to affirm the lower court's finding of voluntariness. The court's finding necessarily required it to weigh the relative credibility of the witnesses. In such a case, we must give special consideration to the trial court's determination. We find ample evidence in the record to support the court's finding. Several witnesses described defendant's actions as coordinated. Defendant himself testified that he drove a considerable distance and knew where he was going. He stated that he didn't care about his rights, thereby stressing his familiarity with and awareness of the procedure. We find nothing in the challenged statements indicating that defendant was intoxicated when he made them.
Defendant's final claim is that the trial court erred reversibly when it prevented defense counsel from questioning a prosecution witness concerning the arrest and release from jail of another prosecution witness. The arrest and release involved a charge unrelated to the instant case and occurred on the day of trial. We find no basis for this claim. This matter was not raised when the witness whom it concerned was testifying. In any case, People v Falkner, 389 Mich. 682; 209 N.W.2d 193 (1973), prohibits inquiries about arrests not resulting in a conviction. Additionally, the trial judge excused the jury and satisfied himself that the police had made no deal with the witness concerning the arrest and his testimony.
For the reasons stated, defendant's conviction is affirmed.
Comments