People v. Bowen
158 N.W.2d. 794, 10 Mich. App. 1, 1968 Mich. App. LEXIS 1377 (1968)
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Rule of Law:
To sustain a conviction for an attempt crime, the prosecution must prove not only a felonious intent but also an overt act that goes beyond mere preparation. An act is not a sufficient overt act if it is equivocal or ambiguous; it must be unequivocally referable to the commission of the intended crime.
Facts:
- Defendant Sherrell Bowen had previously worked as a handyman for Matilda Gatzmeyer, an 80-year-old woman, in her home.
- On January 19, 1965, Bowen, along with William T. Rouse and two female companions, went to Gatzmeyer's home, ostensibly to do handyman work.
- Gatzmeyer voluntarily admitted the group into her house.
- A neighbor, feeling suspicious, called the police, who arrived and entered the home.
- The police observed that Gatzmeyer's bedroom was in a state of disarray, appearing to have been ransacked.
- Bowen and Rouse were found in the rear of the house near the basement steps.
- Police discovered Gatzmeyer's rings under a TV set near where Rouse was seated, and a neighbor found her necklace on the staircase near where Bowen had been standing.
- Gatzmeyer testified that the jewelry had been removed from her bedroom without her permission.
Procedural Posture:
- Sherrell Bowen and William T. Rouse were charged in a trial court with larceny in a building.
- At the conclusion of the trial, the judge submitted the case to the jury solely on the lesser included offense of attempt to commit larceny in a building.
- The jury returned a verdict finding both defendants guilty of attempted larceny in a building.
- The defendants (appellants) appealed their convictions to the Michigan Court of Appeals (this court).
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Issue:
Does a defendant's permissive entry into a home, even if done with the intent to commit larceny, constitute a sufficient overt act to support a conviction for attempted larceny in a building?
Opinions:
Majority - Levin, J.
No. A defendant's permissive and otherwise lawful entry into a home does not constitute a sufficient overt act for attempted larceny, even if accompanied by felonious intent, because the act itself is equivocal and not unequivocally referable to the commission of the crime. The elements of an attempt are a specific intent to commit the crime and an overt act going beyond mere preparation. The trial judge erred by failing to instruct the jury on the necessity of finding an overt act and by incorrectly suggesting that entering the house with felonious intent was sufficient for conviction. An overt act must be unambiguous and demonstrate that the defendant has converted resolution into action. Because Bowen had been permissively in the home before, his entry on this occasion was an equivocal act that did not, by itself, manifest a criminal purpose. The subsequent acts of ransacking the room or taking the jewelry would have been sufficient overt acts, but the jury was not instructed that it needed to find those facts. This instructional error on an essential element of the crime requires reversal and a new trial, even in the absence of an objection by defense counsel.
Dissenting - Lesinski, C. J.
Yes. The trial court's instructions, when viewed as a whole, were adequate and did not constitute reversible error. The judge instructed the jury on the elements of the completed crime of larceny—which includes an actual taking and carrying away—and stated that the defendants were charged with an attempt to do those things. This instruction effectively informed the jury that it must find the defendants performed acts toward the fulfillment of their felonious intent, which satisfies the overt act requirement. There is no requirement for the judge to use the specific legal term 'overt act' so long as the concept is sufficiently conveyed. The charge cannot be reasonably interpreted as allowing a conviction based on intent alone, and therefore, the convictions should be affirmed.
Analysis:
This case significantly clarifies the 'overt act' requirement for attempt liability by adopting a strict standard. By endorsing the 'unequivocal act' test, the court raises the evidentiary bar for prosecutors, requiring proof of an act that is not just preparatory but is also a clear and unambiguous step toward the commission of the crime. This decision reinforces the fundamental principle that the law punishes criminal acts, not merely criminal thoughts, and protects individuals from convictions based on ambiguous conduct that could have an innocent explanation. It provides a crucial distinction between acts of 'mere preparation' and those that are sufficiently proximate to the completed crime to constitute a criminal attempt.
